Page:Prerogatives of the Crown.djvu/349

 Ch. XII. Pt. II. Sec. v.] Diem clausit extremum. 329 common law prerogative right of the Crown to priority (a). However that may be, it is provided by Magna Charta, c. 18. that " if any one holding of us lay-fee, die, and our sheriff or bailiff do shew our letters patent of our summons for a debt which the dead man did owe to us ; it shall be lawful to our sheriff or bailiff to attach and inventory all the goods and chattels of the dead, being found in the lay-fee, to the value of the .same debt, by the view of lawful men ; yet so that nothing thereof shall be taken away, until there be paid unto us the debt clearly made to appear ; and the residue shall be left to the executors to perform the testament of the dead ; and if nothing be owing unto us by him, all the chattels shall go to the use of the dead, saving to his wife and his children their reasonable parts." Upon this statute the diem clausit extremum may be issued (without waiting for an executor or administrator (6) ) against the deceased debtor's estate, in every case in which an extent might have issued against him if he were alive {c But in order to support the writ the deceased must have died indebted to the King [d) ; and before the writ issues such debt must be of record [e) : but it is sufficient if, having died indebted to the King by simple contract, the debt due from the deceased be found by inquisition after his death {f). In order however to maintain this writ against the property of a deceased debtor of the Crown debtor, it is necessary, on the wording of Magna Charta, that the debt from the deceased be found by inqui- sition in his life-time {g). An executor in administering the assets must first discharge the King's debt (Ji) ; nor can he retain even for his own bond debt against the Crown's simple contract debt {i). But a pay- ment by an executor or administrator of a bond debt is good against a Crown debt not of record, of which the personal (a) Vin. Ab. Prerogative, H. Hanson, Chancery Lane, Attorney. (6) IG East, 281. {h) 2 Inst. 32. 1 Clialmers' Coll. of (r) Bunb. 119. Opinions, 28. By 9 H. 3. c. 18. the (rf) Parker, 100. King's debtors dying, the King shaU be {e) Ibid. 98, served before the executor. (/) Ibid. 95, 100. (0 Attorney-General u. Bamett.Hil. (g) Ibid. 16. 2 Price, 380. S. P. 1681, in Socio: Bingham on Execu- Exclequer, A. D. 1816; Rex v. Sidle: tion, 219, note (c). rep re-