1812. THURSTON against MILLS. ditioni exponas, returnable on the 23d of January then next, under which the sheriff sold the goods and received the proceeds, to the amount of 23821. 10s. 6d., and afterwards returned the said writ of venditioni exponas into the Court of Exchequer, having received an order of that court for returning the same. In February following the under-sheriff was served with the copy of an order of the Court of Exchequer, whereby he was ordered to pay into the hands of the collector of excise for the king's use the said sum for which the extent was issued, after deducting his poundage; in obedience to which order the money was paid to the collector. The sheriff was ruled by the Court of C. P., to return the writ of fieri facias, and thereupon applied to that court for time to return it; but afterwards, and after the payment of the money pursuant to the order of the Court of Exchequer, he made a special return to the fieri facias, stating "that he received the said writ on the 18th of "June last, and on the same day seized goods by virtue "thereof to the value of 23821. 10s. 6d. That on the “23d of June last he received an extent duly issued "out of the Court of Exchequer, commanding him "to levy of the goods of S. Thurston the sum of "20667. 15s. 8d. for a debt due from the said S. Thur❝ston to his majesty for malt duties. That by virtue "of that writ of extent, he did on the 26th of October “last take an inquisition, upon which the writ of fieri "facias and the seizure under the same were duly found, "and did thereupon certify to the Court of Exchequer, "that he seized the said goods into the hands of his ma"jesty, subject and liable nevertheless, as far as by law "the same were liable, to the said writ of fieri facias; and "that he did seize the said goods accordingly. That "by virtue of and in obedience to his majesty's writ of "venditioni exponas, he sold the goods, which produced "23821. 10s. 6d. That on the 3d of February last he 66 was ordered by the said Court of Exchequer to pay "19607. 18s. 11d., being the balance of the said "20661. 15s. 8d., after deducting 1057. 16s. 9d. for "poundage for the same 2066l. 15s. 8d. to Powell, "collector of excise, &c. and paid the same accordingly, "and that he had 3057. 7s. 4d., the residue of "the 23827. 10s. 6d., and 10l. 7s. 6d. for poundage, "ready to be paid to the plaintiff Thurston; and that S. "Thurston had no other goods, &c. whereon to levy the "residue of the debt, &c." The special verdict then stated that the 3051. 7s. 4d. was by the consent of the plaintiff and defendant paid to the plaintiff's bankers on her account, and that 107. 7s. 6d. were due to the sheriff on the sum of 3051. 7s. 4d. for poundage and other charges, and that if the whole of the 23821. 10s. 6d. had been levied under the fi. fa. there would have been due to the sheriff the further sum of 51l. 13s. 6d. But whether, &c., and if the Court should be of opinion that the defendant promised in manner and form as declared against him, the jury assess the damages at 2015l. 2s. 2d. This case was three times argued, first by Frere, Serjt. in Michaelmas term 1809, 2dly, by Park in Trinity term 1811, and again by Frere, Serjt. on this day for the plaintiff; and by Dampier on the first, and Abbott on the two last arguments, for the defendant. The question made upon the two first arguments was whether, under the circumstances stated in the special verdict, the king's writ of extent was entitled to priority over the plaintiff's 1812. THURSTON against MILLS. 1812. THURSTON against MILLS. plaintiff's execution. Upon that question the arguments for the plaintiff were in substance as follow: As the writ of fieri facias was actually delivered to the sheriff, and he entered under it, and took possession of the goods, before teste of the writ in the king's suit commenced in the Exchequer, the question is, whether the king's extent is to have the priority. In this Court (a) and in the Court of C. P. (b), this question has been decided in favour of the subject; but, it must be admitted that in another case in the Court of Exch. (c), it has been decided in favour of the crown. Much will depend upon the construction of the 33 H. 8. c. 39., and if it shall be found that the words of that act are clear, the Court, especially where there are conflicting decisions, will look no farther. By s. 74. it is enacted, "that if any suit be commenced or taken, or any pro66 cess be hereafter awarded, for the king for the recovery "of any of the king's debts, the same suit and process "shall be preferred before the suit of any person, and "the king shall have first execution against any de66 fendant, of and for his said debts, before any other person, so always that the king's said suit be taken and "commenced, or process awarded for the said debt at the 66 suit of the king, before judgment given for the other "person." Now here the king's suit was not commenced until the 22d of June, (the date of the fiat,) whereas the plaintiff obtained judgment, and her writ of fieri facias issued on the 17th, and the sheriff took possession under (a) 4 T. R. Rorke v. Dayrell. (b) Black. R. 1251. 1294, Uppom v. Sumner. (c) The King v. Wells and Allnutt. See MS. note at the end of this case. it on the next day. It has been said, however, that this act is restrained to executions against lands; but there are no words so to restrain it; on the contrary, s. 77., which enables the crown to recover against the assets in the hands of executors and administrators, shews that it was meant to extend to executions against personalty. In some of the cases the act has been said to be in extension, in others in restriction of the subject's right. In Sir T. Cecil's case (a), the Court resolved that the act was intended to give a new benefit to the subject as a compensation for the advantage given to the crown, and such was the view which Buller, J. took of it in Rorke v. Dayrell. The authorities on which the plaintiff's title may be supported are the following; Lechmere v. Thoroughgood (b), which perhaps, after the observations made upon it in Payne v. Drewe (c), is not much to be relied upon; The Attorney-General v. Andrew (d), and Rex v. Dickenson (e), and in Com. Dig. (f), it is said, "If execution be upon a judgment against the king's debtor, and before venditioni exponas, an extent comes at the king's suit, those goods cannot be taken upon the extent:" and this is given as a summary of all the cases. It may also be observed that the case of Uppom v. Sumner (g) was a judgment delivered after consideration, and with the unanimous concurrence of all the judges of the court, some of whom were very eminent persons. That judgment was followed by Rorke v. Dayrell in this Court, upon which also the Court was unanimous. [Lord Ellenborough, C. J., Lord C. J. De Grey, and Lord Kenyon, (a) 7 Rep. 19. (c) 4 East, 540. (b) 2 Vent. 169. 3 Mod. 236. S. C. (f) Com. Dig. Debt, G. 8. (e) Parker, 262. (g) 2 Black. R. 1294. 1812. THURSTON against MILLS. who 1812. THURSTON against MILLS. who concurred in those judgments, had been attorniesgeneral, and must have been conversant with the rights of the crown upon such questions.] The case of Rorke v. Dayrell is precisely in point, and although Lord Kenyon fully acceded to the authority of Uppom v. Sumner, yet he did not rest upon that alone, but went de novo into the grounds of his decision; and Ashhurst, J. said, that the words of the statute were clear and decisive. It may be said that the case in the Exchequer, where the Court put a different construction upon the statute, is a later decision; but it is a single decision against all the above authorities. [Le Blanc, J. said, that Eyre, C. J. when he was Chief Baron, upon the question coming before him on motion, expressed very considerable doubts upon the case of Uppom v. Sumner, and desired that the question might be brought on again upon demurrer, in order that it might be considered.] Arguments for the Defendant.-There being conflicting authorities upon this question, it must be argued as if it were res integra. It will not be easy to maintain that the words of the statute are so clear as they have been supposed to be in some of the decisions relied upon by the plaintiff, when the consequences of those decisions are adverted to; for if the king is not to be allowed to take out his execution if the subject has first obtained judg ment, it will follow that although the subject after judgment obtained should delay taking out execution for any length of time, yet the king cannot proceed to take out his execution; which would be giving a greater effect to a prior judgment as against the king, than it would have as against a subject. Perhaps a short reference to the history of this branch of the prerogative |