THORSON,
P.
:—Application
on
behalf
of
the
defendant
to
set
aside
the
writ
of
immediate
extent
issued
out
of
this
Court
herein
on
February
12,
1948,
and
the
fiat
of
Angers,
J.,
of
the
same
date
under
which
it
was
issued.
The
fiat
was
granted
on
the
application
of
the
claimant
and
the
affidavit
of
W.
V.
Scully,
the
Deputy
Minister
of
National
Revenue
for
Taxation,
and
the
writ
of
immediate
extent
issued
under
it
was
directed
to
the
Sheriff
of
the
Judicial
District
of
Montreal
and
his
Bailiff.
The
grounds
on
which
the
defendant’s
application
was
made
were
that
this
Court
had
no
jurisdiction
to
grant
the
fiat
or
issue
the
writ
and
that
evén
if
it
did
have
such
jurisdiction
the
affidavit
of
Mr.
Scully
was
insufficient.
The
writ
of
extent,
or
extendi
facias,
is
a
writ
of
execution
at
the
suit
of
the
Crown
by
which
it
may
seize
at
once
the
lands,
goods
and
debts
or
other
choses
in
action
of
its
debtor.
There
is
some
difference
of
opinion
as
to
when
it
first
became
a
remedy
of
the
Crown.
Robertson
on
Civil
Proceedings
By
and
Against
the
Crown,
1908,
at
page
189,
expresses
the
view
that
it
was
a
Crown
remedy
at
common
law
in
the
ease
of
debts
of
record,
and
that
it
was
extended
by
The
Crown
Debts
Act,
1541-2,
33
Hen.
VIII,
chap.
39,
to
all
debts
owing
to
the
Crown,
whether
of
record
or
not.
The
weight
of
authority
is
against
this
view.
The
leading
text
book
on
the
subject,
West
on
Extents,
1817,
states,
at
page
2,
that
"Extents
at
the
suit
of
the
Crown
are
founded
upon
the
stat.
33
H.
VIII.
c.
39’’.
His
opinion
was
that
the
writ
of
extent
became
a
new
process
to
the
Crown
by
reason
of
the
statute,
that
it
was
borrowed
from
the
remedy
previously
available
only
to
the
subject
by
way
of
execution
on
what
was
known
as
the
Statute
Staple,
"‘the
extendi
facias
against
body,
lands
and
goods
being
peculiarly
the
process
on
the
statutes
staple
and
statutes
merchant”
(securities
for
debts
originally
permitted
among
traders
under
certain
circumstances
for
the
benefit
of
commerce
but
now
obsolete),
and
that
it
was
first
imparted
to
the
Crown
by
the
statute.
Vide
also
in
support
of
this
view
:
Chitty
on
the
Prerogatives
of
the
Crown,
1820,
at
page
263;
Manning’s
Exchequer
Practice,
2nd
edition,
1827,
at
page
4;
Bishop
of
Rochester
v.
Le
Fanu,
[1906]
2
Ch.
513
at
918.
But
whether
the
writ
of
extent
existed
as
a
Crown
remedy
or
not,
even
as
to
debts
of
record,
prior
to
the
statute
referred
to,
it
is
clear,
as
West
points
out,
that
two
important
innovations
in
favor
of
the
Crown
were
made
by
it
;
first,
it
gave
the
Crown
the
power
of
suing
out
process
of
execution
for
all
its
debts,
whether
they
were
debts
of
record
or
not,
and
secondly,
it
gave
the
Crown
the
power
of
taking
the
body,
lands
and
goods
of
its
debtor
at
once.
Prior
to
the
statute
the
Crown
might
have
taken
the
body,
lands
and
goods
of
its
debtor,
where
the
debt
was
one
of
record,
but
could
not
take
them
all
at
once;
for
example,
it
had
to
issue
process
against
his
goods
and
have
a
return
of
nulla
bona,
and
take
out
a
capias
against
his
body,
before
it
could
proceed
against
his
lands.
To
this
extent
the
statute
abrogated
the
commitment
of
Magna
Charta
that
"‘we,
or
our
bailiffs,
shall
not
seize
any
land
nor
rent
for
any
debt,
as
long
as
the
chattels
of
the
debtor
forthcoming
suffice
to
pay
the
debt,
and
the
debtor
himself
be
ready
to
satisfy
therefore
‘
’,
and
gave
the
Crown
an
extraordinary
remedy
against
its
debtor
which
it
did
not
previously
possess.
There
were
two
classes
of
extents,
namely,
extents
in
chief
and
extents
in
aid.
An
extent
in
chief
is
one
in
which
the
Crown
is
the
real,
as
well
as
the
nominal
plaintiff,
which
is
sued
out
for
the
immediate
benefit
of
the
Crown
and
is
for
the
recovery
of
the
Crown
debt,
whether
it
be
against
the
Crown’s
original
debtor
or
the
debtor
of
that
debtor
or
a
debtor
in
a
more
remote
degree,
whereas
an
extent
in
aid
is
one
in
which
the
Crown
is
the
nominal
plaintiff,
the
real
plaintiff
being
a
subject
who
is
the
Crown’s
debtor,
and
the
action
is
for
the
recovery
of
the
debt
due
to
that
subject
and
for
his
benefit.
We
are
concerned
here
only
with
extents
in
chief.
These
are
two
kinds,
namely,
ordinary
writs
of
extent
and
writs
of
immediate
extent.
There
is
no
difference
in
their
nature
or
scope
but
only
in
the
circumstances
under
which
each
is
issued.
The
ordinary
writ
of
extent
issues
by
way
of
execution
in
favor
of
the
Crown
on
a
judgment
obtained
by
it
or
other
debt
of
record
due
to
it.
The
writ
of
immediate
extent,
on
the
other
hand,
issues
even
where
there
has
been
no
judgment
or
other
debt
of
record,
in
cases
where
the
Crown
debt
is
in
danger
of
being
lost.
The
writ
of
immediate
extent
had
its
origin
in
the
Act
of
33
Hen.
VIII,
chap.
39,
which
gave
the
Court
of
Exchequer
power
to
issue
the
extendi
facias
if
need
shall
require
as
unto
the
said
Court
shall
be
thought
by
its
discretion
expedient
for
the
speedy
recovery
of
the
King’s
debts.
The
writ
of
immediate
extent
was,
therefore,
issued
only
when
the
Court
in
its
discretion
thought
that
need
required
it,
the
exercise
of
the
discretion
being
shown
by
the
fiat
of
one
of
the
Barons
of
the
Exchequer,
later
by
that
of
one
of
the
judges
of
the
King’s
Bench,
on
proof
of
the
Crown
debt
and
that
it
was
in
danger.
Such
proof
was
by
affidavit,
commonly
called
an
affidavit
of
debt
and
danger.
Although
the
statute
gave
the
Court
authority
to
issue
the
writ
of
immediate
extent
it
was
necessary
since
the
writ
was
by
way
of
execution
that
the
Crown
debt
should
be
recorded
and
the
practice
was
that
a
Commission
issued
under
which
an
inquiry
was
held
to
find
the
debt;
the
debt
having
been
found
and
certified
by
the
Commissioners,
the
Court
acted
on
their
certificate
and
issued
the
writ.
This
practice
of
issuing
a
commission
of
inquiry
to
find
the
debt
continued
until
it
was
provided
by
section
47
of
The
Crown
Suits
Act,
1865,
that
a
commission
to
find
a
debt
due
to
the
Crown
shall
not
be
necessary
for
authorizing
the
issue
of
an
immediate
extent.
This
proviso
is
repeated
in
Rule
8
of
the
General
Rules
and
Orders
of
this
Court.
Apart
from
such
provision
there
was
no
change
in
the
nature
of
the
writ
or
in
the
conditions
for
its
issue
until
The
Crown
Proceedings
Act,
1947.
In
order
to
appreciate
the
defendant’s
contention
that
this
Court
had
no
jurisdiction
to
grant
a
fiat
for
a
writ
of
immediate
extent
or
to
issue
the
writ
thereunder
it
is
necessary
to
refer
to
the
relevant
statutory
enactments
and
rules.
By
section
37
of
33
Hen.
VIII,
chap.
39,
jurisdiction
over
suits
to
recover
the
King’s
debts,
including
the
issue
of
writs
of
extent,
was
vested
in
the
Court
of
Exchequer.
Under
The
Judicature
Act,
1873,
this
Court
became
the
Exchequer
Division
of
the
Supreme
Court
of
Judicature,
until
it
was
amalgamated
with
the
Queen’s
Bench
Division
of
that
Court
by
Order
in
Council
1880,
which
later
became
the
King’s
Bench
Division
of
the
High
Court
of
Justice.
The
jurisdiction
over
the
issue
of
writs
of
extent
originally
vested
in
the
Court
of
Exchequer
remained
in
the
King’s
Bench
Division
of
the
High
Court
of
Justice
until
writs
of
extent
were
abolished
by
section
33
of
The
Crown
Proceedings
Act,
1947,
which
came
into
effect
on
January
1st,
1948.
The
Court
of
Exchequer
was
first
established
in
Canada
in
1875
by
The
Supreme
and
Exchequer
Court
Act,
Statutes
of
Canada,
1875,
chap.
11,
under
the
name
of
the
Exchequer
Court
of
Canada,
and
continued
as
such
under
the
same
name
in
1887
by
An
Act
to
amend
"The
Supreme
and
Exchequer
Court
Act’’,
and
to
make
better
provision
for
the
Trial
of
Claims
against
the
Crown,
commonly
called
The
Exchequer
Court
Act,
1887,
Statutes
of
Canada,
1887,
chap.
16,
by
which
this
Court
was
established
separately
from
the
Supreme
Court
of
Canada.
By
Section
17
of
this
Act,
now
section
30
of
The
Exchequer
Act,
R.S.C.
1927,
chap.
34,
the
Exchequer
Court
was
given
concurrent
original
jurisdiction
in
Canada,
inter
alia,
in
all
cases
relating
to
the
revenue
in
which
it
is
sought
to
enforee
any
law
of
Canada,
and
in
all
other
actions
and
suits
of
a
civil
nature
at
common
law
or
equity
in
which
the
Crown
is
plaintiff
or
petitioner.
In
my
view,
this
Court
has
had
jurisdiction
over
writs
of
extent
at
the
suit
of
the
Crown
ever
since
its
establishment
as
fully
as
it
was
possessed
in
the
United
Kingdom
by
the
Court
of
Exchequer
there
and
its
successors.
It
has
issued
many
writs
of
extent,
both
ordinary
and
immediate,
and
this
is
the
first
time
that
its
jurisdiction
to
do
so
has
been
challenged.
The
challenge
arises
as
the
result
of
the
combined
effect
of
sections
35
and
36
of
The
Exchequer
Court
Act,
Rule
2
of
the
General
Rules
and
Orders
of
this
Court
and
section
33
of
The
Crown
Proceedings
Act,
1947,
of
the
United
Kingdom.
Section
35
of
The
Exchequer
Court
Act
provides:
"35.
All
provisions
of
law
and
all
rules
and
orders
regulating
the
practice
and
procedure
including
evidence
in
the
Exchequer
Court,
now
existing
and
in
force
shall,
so
far
as
they
are
consistent
with
the
provisions
of
this
Act,
remain
in
force
until
altered
or
rescinded
or
otherwise
determined.’’
And
section
36,
as
amended
in
1928,
Statutes
of
Canada,
1928,
chap.
23,
reads:
"The
practice
and
procedure
in
suits,
actions
and
matters
in
the
Exchequer
Court,
shall,
so
far
as
they
are
applicable,
and
unless
it
is
otherwise
provided
for
by
this
Act,
or
by
general
rules
made
in
pursuance
of
this
Act,
be
regulated
by
the
practice
and
procedure
in
similar
suits,
actions
and
matters
in
His
Majesty’s
High
Court
of
Justice
in
England
on
the
first
day
of
January,
1928.”
Rule
2
of
the
General
Rules
and
Orders
of
this
Court,
1931,
is
in
the
following
terms:
"‘(1)
In
all
suits,
actions,
matters
or
other
judicial
proceedings
in
the
Exchequer
Court
of
Canada,
not
otherwise
provided
for
by
any
Act
of
the
Parliament
of
Canada,
or
by
any
General
Rule
or
Order
of
the
Court,
the
practice
and
procedure
shall
:—
(a)
If
the
cause
of
action
arises
in
any
part
of
Canada,
other
than
the
Province
of
Quebec,
conform
to
and
be
regulated
as
near
aS
may
be,
by
the
practice
and
procedure
at
the
time
in
force
in
similar
suits,
actions
and
matters
in
His
Majesty’s
Supreme
Court
of
Judicature
in
England;
and
(b)
If
the
cause
of
action
arises
in
the
Province
of
Quebec,
conform
to
and
be
regulated,
as
near
as
may
be,
by
the
practice
and
procedure
at
the
time
in
force
in
similar
suits,
actions
and
matters
in
His
Majesty’s
Superior
Court
for
the
Province
of
Quebec;
and
if
there
be
no
similar
suit,
action
or
matter
therein,
then
conform
to
and
be
regulated
by
the
practice
and
procedure
at
the
time
in
force
in
similar
suits,
actions
and
matters
in
His
Majesty’s
Supreme
Court
of
Judicature
in
England.”
And
finally,
section
33
of
The
Crown
Proceedings
Act,
1947,
of
the
United
Kingdom
provides
:
"‘3
3.
No
writ
of
extent
or
of
diem
clausit
extremum
shall
issue
after
the
commencement
of
this
Act.’’
the
commencement
date
being
January
1,
1948.
It
is
obvious,
of
course,
that
The
Crown
Proceedings
Act,
1947,
of
the
United
Kingdom
does
not
per
se
extend
to
Canada
or
have
any
effect
here
but
the
argument
is
made
that
the
abolition
of
writs
of
extent,
being
a
matter
of
practice
and
procedure,
is
brought
into
effect
in
Canada
through
the
instrumentality
of
Rule
2
of
the
General
Rules
and
Orders
of
this
Court
and
the
authority
of
section
36
of
The
Exchequer
Court
Act.
It
is
clear
that
if
it
were
not
for
Rule
2
and
the
use
of
the
words
"‘at
the
time
in
force
’
therein
the
practice
and
procedure
regulating
the
issue
of
writs
of
extent
would
be
that
in
force
in
the
High
Court
of
Justice
in
England
on
January
1,
1928,
as
set
forth
in
section
36
of
The
Exchequer
Court
Act.
The
argument
of
counsel
for
the
defendant,
therefore,
really
turns
on
the
use
of
the
words
"‘at
the
time
in
force
’
’
in
Rule
2
and
runs,
as
I
understand
it,
as
follows:
namely,
that
even
if
the
cause
of
action
in
the
present
case
arose
in
the
Province
of
Quebec,
where
the
defendant
resides,
thus
bringing
the
case
within
Rule
2(1)(b),
there
is
no
similar
suit,
action
or
matter
in
the
Province
of
Quebec
as
a
writ
of
extent
at
the
suit
of
the
Crown
;
that
resort
must
consequently
be
had
to
the
practice
and
procedure
at
the
time
in
force
in
the
Supreme
Court
of
Judicature
in
England;
and
that
the
relevant
time
in
force
is
the
date
of
the
issue
of
the
writ,
namely,
February
12,
1948,
that
at
such
date
writs
of
extent
had
been
abolished
in
England
by
section
33
of
The
Crown
Proceedings
Act,
1947
;
that
there
was
then
no
jurisdiction
in
England
to
issue
writs
of
extent
and
consequently
no
practice
or
procedure
for
issuing
them;
and
that
by
virtue
of
Rule
2
there
was
no
practice
or
procedure
for
issuing
them
in
Canada.
From
this
reasoning
the
conclusion
is
drawn
that
since
January
1,
1948,
this
Court
no
longer
had
any
jurisdiction
to
issue
any
writ
of
extent.
There
are
several
reasons
why
a
conclusion
leading
to
such
an
astonishing
result
cannot
be
adopted.
One
fallacy
in
the
argument
lies
in
the
fact
that
it
fails
to
distinguish
between
the
practice
and
procedure
regulating
the
exercise
of
a
right
and
the
right
itself.
When
the
Act
of
33
Hen.
VIII,
chap.
39,
authorized
the
issue
of
writs
of
extent
for
the
recovery
of
the
King’s
debts
it
conferred
a
right
upon
the
Crown
which
did
not
previously
exist.
This
was
not
a
matter
of
practice
and
procedure
but
of
substantive
right.
The
right
to
issue
the
writ
must
be
distinguished
from
the
practice
and
procedure
regulating
its
issue.
Similarly,
the
abolition
of
writs
of
extent
by
The
Crown
Proceedings
Act,
1947,
was
not
a
matter
of
practice
or
procedure.
If
it
had
been
it
could
have
been
accomplished
by
the
judges
under
their
rule
making
powers.
It
was
the
abrogation
of
a
previously
existing
right
which
only
Parliament
could
effect.
Moreover,
it
is
axiomatic
that
the
rules
made
by
the
judges
under
their
rule
making
power
are
designed
for
the
purpose
of
regulating
the
exercise
of
the
jurisdiction
of
the
Court,
and
cannot
either
create
or
destroy
jurisdiction.
If,
therefore,
Rule
>
has
the
result
suggested
by
counsel
for
the
defendant
it
is
clearly
beyond
the
powers
of
the
rule
making
authority
and
must
be
held
to
be
invalid.
But
such
a
result
ought
not
to
be
found
unless
the
language
of
the
rule
necessarily
so
demands.
And
it
ought
not
to
be
held
that
Parliament
intended
to
abrogate
a
right
of
the
Crown
of
long
standing
or
to
destroy
the
Court’s
jurisdiction
over
it
in
the
circuitous
manner
suggested,
if
the
language
of
the
rule
in
its
context
with
the
governing
section
of
the
Act
is
fairly
capable
of
an
interpretation
that
would
lead
to
a
more
reasonable
result.
As
I
read
Rule
2
and
section
36
of
The
Exchequer
Court
Act,
it
was
contemplated
that
resort
should
be
had
to
the
practice
and
procedure
in
force
in
the
High
Court
of
Justice
in
England
on
January
1,
1928,
unless
there
was
some
other
later
practice
or
procedure
that
should
be
in
force.
The
section
gave
authority
to
the
judges
to
make
a
rule
substituting
for
the
practice
and
procedure
referred
to
therein
the
practice
and
procedure
that
should
be
in
force
at
the
time
the
cause
of
action
should
arise.
But
it
is
essential
that
the
rule
should
lead
to
a
practice
and
procedure
that
is
in
force
at
such
time,
and
not
to
the
absence
of
any
practice
or
procedure.
The
alternative
is
between
a
practice
and
procedure
in
force
at
the
fixed
date
mentioned
in
the
section
and
a
subsequent
practice
and
procedure
in
force
at
the
time
of
the
cause
of
action
in
accordance
with
the
rule.
Section
36
and
rule
2
contemplated
that
the
procedure
in
force
at
the
time
of
the
cause
of
action
should
be
substituted
for
that
in
force
at
the
time
specified
in
the
section
if
it
should
be
different
from
it,
but
the
section
did
not
authorize
the
making
of
a
rule
that
would
result
in
the
nullification
of
the
section
by
the
substitution
of
the
absence
of
any
practice
or
procedure
at
all
for
that
prescribed
by
the
section.
Yet
such
an
absurd
interpretation
of
the
section
and
rule
would
have
to
be
made
if
the
argument
for
the
defendant
were
adopted.
Consequently,
since
the
rule
does
not
lead
to
a
practice
or
procedure
in
England
that
was
in
force
at
the
time
the
writ
of
immediate
extent
was
issued
it
can
have
no
application
in
the
present
case
and
resort
must
be
had
to
the
practice
and
procedure
that
was
in
force
in
the
High
Court
of
Justice
in
England
on
January
1,
1928,
as
specified
in
section
36.
That
being
so,
the
foundation
for
the
defendant’s
argument
of
lack
of
jurisdiction
in
the
Court
wholly
disappears.
I
have
no
hesitation
in
expressing
the
opinion
that
the
jurisdiction
of
this
Court
in
respect
of
writs
of
extent
remains
intact
and
is
unaffected
by
the
abolition
of
such
writs
in
England.
•
The
second
part
of
the
defendant’s
argument
may
now
be
considered.
It
dealt
with
the
propriety
of
granting
the
fiat
and
issuing
the
writ
under
it
on
the
material
before
the
Court
on
the
assumption
that
it
had
the
necessary
jurisdiction.
The
only
General
Rules
and
Orders
of
this
Court
relating
particularly
to
writs
of
extent
are
Rules
8
and
9,
of
which
the
former
reads
as
follows:
‘‘
8.
A
commission
to
find
a
debt
due
to
the
Crown
shall
not
be
necessary
for
authorizing
the
issue
of
an
Immediate
Extent
or
a
writ
of
Diem
Clausit
Extremum;
and
an
Immediate
Extent
may
be
issued
on
an
affidavit
of
debt
and
danger,
or
a
writ
of
Diem
Clausit
Extremum
may
be
issued
on
an
affidavit
of
debt
and
death,
and,
in
either
case,
on
the
fiat
of
a
judge
of
the
Exchequer
Court
of
Canada.
See
28-29
Viet.
(U.K.),
ch.
104,
sec.
47,
and
following.
(For
forms
of
affidavit,
order
and
writ,
see
Forms
4,
5
and
6
in
the
Appendix
to
these
Rules.
’
’
It
is
an
essential
condition
of
the
issue
of
a
writ
of
immediate
extent
that
there
should
be
a
fiat
of
a
judge
of
the
Court
and
an
affidavit
of
debt
and
danger.
The
fiat
herein
was
granted
by
Angers,
J.
on
the
following
affidavit
of
William
Vincent
Scully
:
"‘
1.
That
I
am
the
Deputy
Minister
of
National
Revenue
for
Taxation
and
as
such
have
knowledge
of
the
matters
hereinafter
deposed
to.
2.
That
a
preliminary
assessment
of
the
taxpayer’s
revenue
was
made
on
the
11th
day
of
February,
1948,
from
which
it
appears
that
the
above
taxpayer
is
indebted
to
the
Crown
for
taxes
for
the
years
1942
to
1946
inclusive,
amounting
to
the
sum
of
$863,831.85
or
thereabouts,
plus
interest.
3.
That
securities
amounting
to
approximately
$1,000,000.00,
belonging
to
the
above
mentioned
taxpayer,
are
at
present
under
seal
by
the
Foreign
Exchange
Control
Board,
who
are
contemplating
prosecution
of
Albert
Sansoucy
for
withholding
United
States
funds
and
also
are
considering
releasing
the
above
mentioned
securities
to
Sansoucy
upon
completion
of
prosecution
against
him
as
hereinabove
described.
4.
That
I
am
informed
and
verily
believe
that
unless
some
method
more
speedy
than
the
ordinary
proceedings
at
law
be
had
against
the
said
Albert
Sansoucy,
the
said
sum
of
$863,-
331.85
or
thereabouts,
plus
interest,
owing
as
aforesaid
is
in
danger
of
being
lost.’’
Three
attacks
were
made
upon
the
proceedings
in
the
present
case.
The
first
was
that
the
fiat
was
not
for
the
amount
sworn
to
in
the
affidavit
and
that
the
writ
was
not
for
the
amount
mentioned
in
the
fiat.
The
fiat
authorized
the
issue
of
a
writ
for
the
recovery
of
the
sum
of
$863,313.85
whereas
the
writ
was
issued
for
the
sum
of
$863,331.85.
This
is
the
amount
specified
in
the
affidavit.
It
is
obvious
that
the
figure
set
out
in
the
fiat
is
the
result
of
a
purely
clerical
error,
which
ought
not,
in
my
judgment,
to
serve
as
a
ground
for
setting
aside
the
proceedings.
The
other
two
attacks
were
directed
against
the
affidavit.
It
was
contended
that
it
was
insufficient
and
therefore
defective
in
two
respects,
namely,
that
there
was
no
proper
evidence
of
a
debt
to
the
Crown,
and
that
no
proof
of
danger
was
given.
It
is
clear
that
although
section
47
of
The
Crown
Debts
Act,
1865,
dispensed
with
the
requirement
of
a
commission
of
inquiry
to
find
the
debt
due
to
the
Crown,
when
it
was
not
a
judgment
or
other
debt
of
record,
it
made
no
change
in
any
other
requirements
of
the
proof
necessary
for
the
valid
issue
of
a
writ
of
immediate
extent.
The
old
authorities
as
to
what
must
be
proved
in
an
affidavit
of
debt
and
danger
are
still
fully
applicable.
I
shall
deal
first
with
the
proof
of
debt
that
is
required.
Under
the
old
procedure
of
a
commission
of
inquiry
to
find
the
debt
the
evidence
as
to
its
existence
given
before
the
Commissioners
was
by
way
of
affidavit.
The
kind
of
debt
that
might
be
found
on
an
inquisition
is
stated
by
West,
at
page
25,
as
follows:
"Wherever
there
is
such
a
debt
to
the
Crown
as
that
an
action
of
debt,
or
indebitatus
assumpsit,
might
be
maintained
against
the
debtor,
were
it
due
to
a
subject;
such
debt
may,
it
is
apprehended,
be
found
under
the
inquisition,
for
the
purpose
of
issuing
a
scire
facias,
or
immediate
extent
for
it.’’
West
also
says
that
the
inquisition
should
state
how
the
debt
to
the
King
is
constituted
and
not
merely
that
the
party
is
indebted
to
the
King.
Vide
also
Manning’s
Exchequer
Practice,
at
pages
19
and
18.
The
fact
that
no
commission
of
inquiry
is
now
needed
to
find
the
debt
does
not
change
the
nature
of
the
kind
of
debt
that
must
be
proved
or
the
kind
of
proof
that
must
be
made.
The
former
rule
that
a
mere
allegation
of
indebtedness
is
not
sufficient
still
applies
and
is
the
basis
of
the
indication
in
Form
4
in
the
Appendix
to
the
General
Rules
and
Orders
of
this
Court
that
the
affidavit
should
state
the
manner
in
which
the
indebtedness
to
the
Crown
arose.
It
follows
that
in
the
affidavit
in
support
of
an
application
for
a
fiat
for
a
writ
of
immediate
extent
it
is
not
sufficient
merely
to
allege
that
the
defendant
is
indebted
to
the
Crown
in
a
specified
sum;
the
facts
from
which
the
indebtedness
is
alleged
to
have
arisen
showing
the
nature
and
origin
of
the
debt
must
be
stated
with
reasonable
certainty.
It
must
also
be
shown
that
the
debt
is
such
that
an
action
for
it
would
lie,
that
is
to
say,
that
it
is
not
only
due
but
is
also
payable.
It
was
contended
that
the
affidavit
of
Mr.
Seully
did
not
meet
these
necessary
requirements.
Paragraph
2
of
the
affidavit
was
criticized
on
a
number
of
grounds,
namely,
that
it
did
not
state
the
kind
of
taxes
that
were
due,
that
there
was
no
such
thing
as
a
preliminary
‘‘
assessment,
and
that
The
Income
War
Tax
Act
did
not
provide
for
the
assessment
of
a
taxpayer’s
revenue
but
only
of
his
income.
While
I
am
of
the
opinion
that
these
criticisms
of
the
affidavit
were
well
founded
and
that
it
was
not
drawn
as
carefully
and
as
precisely
as
would
be
desirable,
l
am
also
of
the
view
that
if
this
were
the
full
extent
of
counsel’s
criticism
of
the
paragraph
these
defects
would
not
be
fatal.
But
counsel
went
farther
and
contended
that
there
was
no
proof
of
a
payable
debt.
He
relied
upon
an
admission
that
section
48(2)
of
The
Income
War
Tax
Act
was
not
applicable
to
the
defendant
taxpayer
in
respect
of
the
years
1942
to
1946
and
contended
that
his
case
came
under
section
48(3)
which
reads:
^48(3)
Every
person,
other
than
a
corporation
or
a
person
to
whom
subsection
two
of
this
section
applies
or
a
person
whose
chief
business
is
that
of
farming,
shall
pay
all
taxes,
which
he
is
liable
to
pay
upon
his
income
during
any
taxation
year
under
any
of
the
provisions
of
this
Act
except
sections
9B,
27
and
88
thereof,
as
estimated
by
him
on
his
income
for
the
year
last
preceding
the
taxation
year
or
on
his
estimated
income
for
the
taxation
year,
in
either
case
at
the
rates
for
the
taxation
year,
by
quarterly
instalments
during
the
taxation
year
as
follows,
.
.
.
and
if,
after
examination
of
any
person’s
return
under
section
fifty-three
of
this
Act,
it
is
established
for
the
purposes
of
this
Act
that
the
instalments
paid
by
him
under
this
subsection
amount,
in
the
aggregate,
to
less
than
the
tax
payable,
he
shall
forthwith
after
notice
of
assessment
is
sent
to
him
under
section
fifty-four
of
this
Act,
pay
the
unpaid
amount
thereof
together
with
interest
thereon
at
four
percentum
per
annum
from
the
thirty-first
day
of
December
in
the
taxation
year
until
one
month
from
the
date
of
mailing
of
the
said
notice
of
assessment
and
thereafter
at
seven
per
centum
per
annum
until
the
date
of
payment.
‘
‘
From
this
section
he
argued
that,
since
it
was
provided
that
if
the
amount
of
income
tax
paid
by
a
taxpayer
on
his
income
as
estimated
by
him
was
less
than
the
tax
which
he
ought
to
have
paid
"‘he
shall
forthwith
after
notice
of
assessment
is
sent
to
him
under
section
fifty-four
of
this
Act,
pay
the
unpaid
amount
thereof’’,
it
followed
as
a
necessary
consequence
that
there
was
no
payable
debt
by
the
taxpayer
to
the
Crown
until
after
notice
of
the
assessment
under
section
54
of
the
Act
had
been
sent
to
him.
It
was
submitted
that,
even
although
there
was
always
a
liability
on
the
part
of
the
defendant
to
pay
the
tax
that
ought
to
be
paid,
and
even
although
the
tax
became
a
debt
due
to
the
Crown
on
the
making
of
the
assessment
under
section
54
of
the
Act
and
pursuant
to
section
70
thereof,
it
was
a
condition
precedent
to
the
debt
becoming
a
payable
debt
that
notice
of
the
assessment
should
have
been
sent
to
the
defendant;
that
before
a
writ
of
immediate
extent
can
validly
issue
it
must
be
shown
that
there
is
a
debt
upon
which
the
Crown
could
at
the
time
of
the
issue
of
the
writ
proceed
to
judgment;
that
it
was
consequently
necessary
to
prove
not
only
that
an
assessment
had
been
made
but
also
that
notice
of
it
had
been
sent
to
the
defendant;
that
there
was
no
statement
in
the
affidavit
that
notice
of
the
assessment
had
been
sent
to
the
defendant;
and
that
since
the
affidavit
failed
to
prove
this
essential
condition
of
there
being
a
payable
debt
it
was
defective
and
could
not
sustain
the
fiat
or
the
writ
under
it.
Counsel
for
the
claimant
did
not
meet
this
particular
objection
and
I
have
been
unable
to
find
any
answer
to
it.
I
have
come
to
the
conclusion
that
in
addition
to
stating
the
facts
relating
to
the
making
of
the
assessment
the
affidavit
should
also
have
set.
out
that
notice
of
the
assessment
was
sent
to
the
defendant,
if
such
was
the
case,
and
the
amount
of
the
assessment
remained
unpaid,
and
that
counsel
for
the
defendant
was
right
in
his
contention
that
the
affidavit
did
not
prove
a
payable
debt
to
the
Crown
and
that
it
was
consequently
defective.
But
even
if
the
affidavit
were
considered
as
sufficiently
proving
a
payable
debt
to
the
Crown
the
remaining
objection
that
it
was
defective
in
that
no
proof
of
danger
was
given
appears
to
me
to
be
unanswerable.
Paragraph
4
of
the
affidavit
is
open
to
several
criticisms.
In
the
first
place,
the
affidavit
does
not
say
by
whom
he
was
informed
or
on
what
grounds
he
bases
his
belief
as
he
ought
to
have
done
under
Rule
168.
But
there
is
a
much
stronger
reason
for
holding
that
the
affidavit
is
defective.
There
is
merely
a
statement
that
the
sum
specified
as
owing
is
in
danger
of
being
lost.
It
is,
I
think,
indisputable
that
such
a
bare
statement
is
insufficient.
In
dealing
with
the
proof
of
danger
required
West
on
Extents
says,
at
page
92:
“With
respect
to
the
allegation
of
danger
in
the
affidavit,
it
is
apprehended
that
the
affidavit
should
contain
not
only
a
general
allegation
of
the
defendant’s
insolvency,
but
also
some
fact
or
instance
of
insolvency:
such
as
"‘that
he
has
stopped
payment’’,
"‘has
absconded’’,
"‘a
docquet
has
been
struck
against
him’’,
or
that
he
has
committed
an
act
of
bankruptcy
or
insolvency,
particularizing
the
act.’’
And
in
Rex
v.
Jans
vel
Smith
(1731)
Bunb.
300
the
statement
that
the
defendant
"
"
was
in
suspicious
circumstances,
and
that
the
debt
was
in
danger
of
being
lost’’
was
held
not
to
be
sufficient.
The
following
statement
was
also
made
by
West,
at
page
180
:
‘
if
the
affidavit
be
defective
in
the
statement
of
the
defendant’s
insolvency,
the
defendant
may
move
to
set
it
aside:
and
it
is
the
more
necessary
that
this
statement
should
be
complete,
as
the
defendant
has
no
means
of
contradicting
or
explaining
the
fact
which
is
alleged
as
the
proof
of
insolvency
;
the
Court
having
refused
to
grant
a
rule
to
shew
cause
on
counter
affidavits
as
to
that
point:
and
that
he
could
not
traverse
the
fact
of
insolvency
is
clear;
as
it
constitutes
no
part
of
the
record,
but
is
merely
a
statement
in
the
affidavit
required
by
the
rules
of
the
Court,
as
a
ground
for
the
exercise
of
their
discretion
in
issuing
the
Extent
:”
Vide
also
Chitty
on
the
Prerogatives
of
the
Crown,
at
page
278.
I
agree
with
counsel’s
suggestion
that
the
matter
is
concluded
by
the
decision
of
Bray,
J.
in
Rex
v.
Pridgeon,
[1910]
>
K.B.
543.
There
a
writ
of
extent
had
been
issued
upon
an
affidavit
of
debt
and
danger
in
which
the
deponent
stated
the
fact
that
a
debt
was
due
to
the
Crown
from
a
certain
debtor,
and
the
nature
and
origin
of
the
debt,
and
proceeded
to
allege
that
from
enquiries
he
had
made
he
had
ascertained
and
believed
that
the
debt
due
to
the
Crown
from
the
debtor
would
be
lost
unless
some
more
speedy
course
than
the
ordinary
method
of
proceeding
were
forthwith
had
and
taken
to
recover
the
same
on
behalf
of
His
Majesty.
On
a
motion
to
set
aside
the
writ
it
was
held
that
the
affidavit
was
defective
in
that
it
omitted
to
state
the
facts
from
which
the
Court
might
infer
that
the
debt
was
in
danger
of
being
lost
and
the
writ
was
accordingly
set
aside.
The
case
establishes
that
it
is
not
sufficient
in
an
affidavit
of
debt
and
danger
merely
to
state
that
the
debt
is
in
danger
of
being
lost;
it
is
necessary
to
set
out
the
facts
from
which
the
conclusion
may
be
drawn
that
the
debt
is
in
danger
and
that
there
is
need
for
the
issuance
of
a
writ
of
immediate
extent
for
its
speedy
recovery.
Bray
J.
approved
the
statement
of
West,
at
page
180,
to
which
I
referred
and
said
of
the
cases
cited
in
support
of
it
:
"‘They
establish
that
it
is
necessary
to
state
facts
leading
to
the
conclusion
that
the
debt
is
in
danger.
Even
in
a
case
where
insolvency
is
alleged
it
is
not
sufficient
simply
to
state
the
fact
of
insolvency
without
specifying
facts
which
lead
to
that
inference.
The
affidavit
in
the
present
case
does
not
go
so
far
as
even
to
allege
insolvency.
It
merely
alleges
that
there
is
danger
of
the
debt
being
lost.
In
my
opinion
the
affidavit
is
insufficient
and
the
proceedings
are
irregular.
‘
‘
I
come
to
a
similar
conclusion
in
the
present
case.
Counsel
for
the
claimant
suggested
that
the
allegations
in
paragraph
3
of
the
affidavit
sufficiently
supported
the
statement
that
the
debt
was
in
danger
of
being
lost.
I
am
unable
to
agree.
I
cannot
see
what
bearing
these
allegations
have
on
the
issues
before
the
Court.
Nor
can
the
practice
of
the
Court
in
the
past
of
issuing
writs
of
immediate
extent
on
affidavits
similar
in
effect
to
the
one
under
review
be
an
answer
to
the
defendant’s
complaint.
The
repetition
of
an
erroneous
practice
cannot
make
it
a
correct
one
and
this
is
the
first
time
that
the
practice
has
been
challenged.
Nor
can
it
be
said
that
the
correct
practice
is
difficult
to
find.
Indeed,
it
is
indicated
in
Form
4
of
the
Appendix
to
the
General
Rules
and
Orders,
where
it
is
stated
that
the
affidavit
‘‘should
contain
not
only
a
general
allegation
of
the
defendant’s
in-
solvency,
but
also
some
particular
fact
or
instance,
such
as
that
he
has
committed
an
act
of
bankruptcy,
or
stopped
payment,
or
absconded
or
that
an
execution
has
issued
against
him.’’
The
form
itself
shows
that
a
mere
allegation
of
danger
is
not
enough.
The
writ
of
immediate
extent
is
an
extraordinary
remedy
calling
for
the
exercise
of
the
discretion
of
the
Court
where
the
need
for
it
appears.
In
the
very
nature
of
things
the
application
for
it
is
made
ex
parte.
The
applicant
for
the
remedy
must
show
that
a
proper
case
has
been
made
out
for
the
exercise
of
the
Court’s
discretion.
The
remedy
sought
being
such
an
extraordinary
one
it
is
essential
that
the
requirements
of
proof
which
the
law
imposes
under
the
circumstances
should
be
strictly
complied
with.
There
has
not
been
such
compliance
in
the
present
case.
It
follows
that
there
must
be
judgment
setting
aside
the
fiat
and
the
writ
of
immediate
extent
issued
under
it.
The
defendant
will
also
be
entitled
to
his
costs.
Judgment
accordingly.
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