will tend to elucidate the argument. By the ancient prerogative of the crown, as it stood at common law, the king was to be paid first, and was entitled to stay the suits of other creditors against the king's debtor, until the king's debt was paid: and the means by which that was effected was to grant a protection to the debtor (a). This appears from Sir Edw. Coke's case (b), and also from the Registr. Brev. 281. b., where is to be found a form of such writ in favour of some Lombard merchants, who were indebted to the crown in debts payable at a future day, and the writ forbids that they should be taken, distrained, or arrested on account of any other debts; and in case judgment should have been given in the king's courts to recover those debts, it directs execution to be suspended until the crown debts be satisfied. There is also another writ of the same sort in Dyer (c), but that was not allowed; and the reason was that it was after the 25 Ed. 3. stat. 5. c. 19. Thus stood the prerogative whilst the debtor lived, but if the debtor died, the king was to be first paid out of his goods; the debtor could not make a will, neither could his executors intermeddle, without the king's permission, until the king's debt was satisfied. The sheriff was to secure the debt to the crown by Magna Charta (d), and Madox, in his History of the Exchequer (e), quotes several instances of permission to the king's debtors to make wills, and to the executors to take the goods. The first alteration that was made by statute in the king's prerogative was by 25 Ed. 3. stat. 5. c. 19., which narrowed. the prerogative, by allowing the suits of other creditors (a) Co. Lit. 131. b. (c) Dyer 328. Hunt's case. (b) Godbolt, 290., 2 Roll's Rep. 291. (e) 2 Madox Hist. of Exch. 183. et seq. 1812. THURSTON against MILLS. VOL. XVI. T to 1812. THURSTON against MILLS. to proceed to judgment notwithstanding such protections, but the execution was to be suspended, unless the creditor should undertake for the king's debt. And this was done in 41 Ed. 3. (a) There execution was sued on a statute merchant; the sheriff returned that he had extended the lands, but did not return that he had delivered them whereupon a motion was made to attach the sheriff, and one came on the part of the defendant and said that he was the king's debtor, and had a writ out of Chancery reciting that he was debtor in the Exchequer, and prayed that execution might cease until the king's debt was paid. On the other side it was prayed that process might be continued on the roll until the king's debt was levied, and that a capias might be awarded: the capias was objected to, and at last a continuance of the process was prayed without a capias, and that was granted." The next alteration was by the statute now under discussion, 33 H. 8. c. 39., which is very obscurely worded; for it would appear to one not conversant with the law as it then stood, from a view of this clause of the statute, as if it gave to the king something which he had not before, but at the same time gave it with qualifications; whereas it is quite clear from the above considerations, that although worded in the form of a gift, it gives nothing to the crown, nor enables it to do any thing which it might not have done before. But it imposes conditions, and therefore must be considered as a restraining clause. Now the rule is that the prerogative of the crown shall not be taken away, except by clear and unambiguous words. According to that rule, the statute must be taken to have worked this re (a) Fitzh. Abr. Execution, pl. 38., cited in Rex v. Cotton, Parker 123. straint, straint, and no farther, viz. that the king shall not prevent the subject from taking out execution upon a judgment obtained against the king's debtor, unless before the time when the subject shall have obtained such judgment, the king shall have commenced his suit, or instituted process for the recovery of his debt. This will be an abridgment of the prerogative, (for under the 25 Edw. 3. it has been shewn, that the king might have prevented the subject's execution, although the king's suit was not commenced before the subject had obtained judgment,) and will satisfy the words of the statute, and also conform to all the authorities prior to Uppom v. Sumner. The words of the statute cannot possibly be taken in their literal sense; for then if the subject's judgment were first, he would have precedence although his execution were last, which is not the case even between subject and subject. That sense therefore must prevail, which the words will best admit of, upon a reference to the law as it stood before the act. The substance of the enactment is this, that the king's suit and process, (which is intended of mesne process,) and the king's execution, are to be preferred to that of the subject; which is so far the same as at common law: but he is only to have first execution, i. e. a right to prevent the subject from issu ing execution until the king's debt be satisfied, in the case there provided for: but the statute was never in tended to be applied to concurrent executions. With respect to them, before the case of Uppom v. Sumner, it was considered that if the king's writ came before the execution of the subject was completely executed, the king's execution was to prevail; and that execution is then only completely executed, when upon an elegit the goods and land are delivered by the writ of liberate, or 1812. THURSTON against MILLS. 1812. THURSTON against MILLS. when upon a levari facias the goods are sold as well as seized by the sheriff. Therefore in Stringefellow v. Brownesoppe (a), where the king's extent came after the extent of the subject upon a statute staple was returnable, but before liberate; it was holden that the sheriff should be amerced if he would not prefer the king's writ. The reporter adds a quære to that case, because he says it was against the opinion of many in the Temple; but notwithstanding that, it was thought by Parker, C. B. to be good law (b). [Bayley, J. It was agreed to in Lord Lincoln's case (c).] So in Rex v. Peck (d), the extent was tested after seizure under a fi. fa.; the sheriff made a special return, and afterwards moved in the Exchequer to amend it, which was allowed; and there it was taken for granted that although the goods were levied by virtue of the fi. fa. three days before the teste of the extent, yet that was no bar to the crown; but it is added, "quære if they had been sold, for then execution would have been executed." The same doctrine is to be found in The Attorney-General v. Capel (e). The next cases are those of Rex v. Cotton (f), which was the case of a prior distress, but was considered the same as a prior execution; and Curson's case (g), where it was held that the queen should not avoid the execution of the subject, after a liberate; but it was also said "that if the land had been extended at the suit of the queen, then the execution of the queen should hold place, although her's was a statute of a puisne date." All these, taken together, are strong authorities to shew that if the king's extent comes before (a) Dyer, 67. b. (b) Parker, 125. (g) 3 Leon. 239, 240, 4 Leon. 10, S. C. (c) Dyer, 67. b. in note. (f) Parker, 112. execu execution executed, it shall prevail. [Bayley, J. cited Gilb. Exch. 90. ( in some editions p. 113.) which he said agreed with the argument, that although there be a seizure under a fi. fa., yet if an extent comes, the crown shall be preferred.] Gilbert is there speaking of an execution upon a judgment, and not upon an extent, and therefore his opinion may be set against that of Lord C. B. Comyns, which has been cited. Thus it appears that until the case of Uppom v. Sumner, all the authorities were in favour of the prerogative; and it is observable that the counsel in that case at first thought it too clear in favour of the crown to admit of argument. Lechmere v. Thoroughgood, on which that case mainly rests, is now abandoned: and as to The Attorney-General v. Andrew (a), although it is not stated in the report whether there had been a liberate, yet it seems clear from the whole taken together that there must have been; and that the elegits were completely executed. The record has been searched for but cannot be found. Rex v. Dickenson was also relied upon in Uppom v. Sumner; which was a scire facias against an executor on a simple contract debt due from his testator to a third person, and seized into the king's hands. The executor pleaded a judgment recovered against his testator in his lifetime, and other judgments recovered against himself before the return of the scire facias upon bonds given by his testator: and it was holden that the crown was entitled to priority over the subsequent judgments, but not over the precedent, by reason of the words of the stat. of H. 8. Now these two cases taken at their utmost, only decide that where a judgment can of itself give a (a) Hard. 23. 1812. THURSTON against MILLS. |