1812.

THURSTON

against MILLS.

plaintiff that money which he has parted with to another, in obedience to the order of the Court of Exchequer. Allowing the utmost latitude to this form of action, I find no case that will warrant its being carried to such an extent. I regret it, because the main object of the proceeding is rendered abortive; but upon no authority nor principle of equity or good conscience can this action be maintained.

GROSE, J. I have little to observe in addition to what has fallen from my Lord; and that is merely to remark upon the nature of the action, and the ground upon which I conceive the plaintiff must entitle herself to recover. This is an implied assumpsit, and the plaintiff must entitle herself to recover upon a promise which the law will raise: but how can the law raise a promise to pay to the plaintiff in one suit, that money which was received under the process of the Court, of Exchequer in another suit? It seems to me that it would be confounding the forms of action, and their principles, to hold that the law will imply such a promise.

LE BLANC, J. The plaintiff here was plaintiff in a former action, and obtained judgment, and issued a fi. fa. thereon, and delivered it to the sheriff, who seized the goods. After that, and before the sale of the goods, an extent issued out of the Court of Exchequer at the suit of the crown, and was delivered to the same sheriff, and an inquisition was taken thereon and returned into that court; after which the Court commanded the sheriff, by writ of venditioni exponas, to sell the goods, which he was bound to do under the peril of an attachment. He accordingly sold them and returned the writ, and the

Court

Court further ordered him to pay over the money, which
he also did. Now it is perfectly clear that the plaintiff
might at that time have gone to the Court of Exchequer,
and put in her claim upon record, and had her rights
determined in that court. However nothing of that sort
was done. Afterwards the sheriff being ruled to return
the fi. fa., made a special return to the Court of C. P.
of all the circumstances. Again, we do not find that
any application was made, or proceeding instituted in
the Court of C. P. to obtain a decision upon the sheriff's
return so that in neither of the courts from which the
process issued was any step taken. But an action for
money had and received is commenced in this court, out
of which no part of the process issued, and complaint is
here made of the sheriff's return. Although the Court
must always lament any delays which arise in litigation,
although a party has a right to litigate in this Court
the validity of the process of other courts, yet I cannot
but think that where the plaintiff has omitted to resort
to those courts out of which the process issued, and
where perhaps it might have been more properly con-
sidered, and with more advantage, she herself is not
entirely unconnected with the causes of delay; and
therefore perhaps it may be the less to be regretted.
Upon the two former arguments, the form of action
was certainly not so much adverted to as it might have
been another argument was therefore directed; and
now the question is whether the sheriff can be said to
have received money to the use of the plaintiff. This is
not like a case where there being two concurrent writs of
fi. fa. the sheriff has levied, and the question is for the
Court to determine under which the money was levied.
But here the sheriff having two executions, applies to
VOL. XVI.
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the

1812.

THURSTON

against MILLS.

1812.

THURSTON

against MILLS.

Goods seized under a fi. fa. at the suit of a subject are before sale liable to be taken by virtue of the king's extent, tested after

the delivery of the fi. fa. to the sheriff.

the Court to know under which writ he shall execute pro-
cess, and he is ordered to execute it under the vendit. expon.
Then if it be money had and received to the use of any
one, it is
money had and received to the use of the crown,
under whose execution the sheriff was directed by the
Court of Exchequer to levy. It seems impossible to con-
sider this as money had and received to the plaintiff's use,
under the most favourable consideration of this form of
action, because it is clear that neither the money nor the
goods were the property of the plaintiff, but money levied
under the order of the Court of Exchequer for another
party in that court. This makes it unnecessary to go into
any question as to the priority of the right of the crown.

BAYLEY. J. I believe the sheriff acted in this matter under the advice which I gave, and therefore I have cautiously abstained from interfering with any advice upon this occasion; but as all the Court have agreed that this was not money received to the plaintiff's use, I have no hesitation in adding, that I concur in the opinion which has been delivered.

Judgment for the Defendant.

The KING against EDWARD WELLS and JOHN
ALLNUTT. (a)

THE following is a statement of the proceedings had in the Court of Exchequer, and of the notes of the Lord Chief Baron Macdonald's judgment in this case:

Extent tested the 15th September 1796, reciting an inquisition of the same date, whereon Richard Pickman was found to be indebted to the king in 7221. 8s. 7§d. for duties on malt. Inquisition by the sheriff of Surry the 27th October 1796 finding Pickman's property, and farther, that on the 12th of September 1796, (three days before the issuing of the extent,) the sheriff of Surry by virtue of a fieri facias from the K. B. (on a judgment between Wells and Allnutt plaintiffs, and Pickman defendant for 15001. debt and

(a) See 7 T. R. 174.

633. damages, returnable Monday next after the morrow of All Souls, indorsed to levy 366l. Os. 6d.) seized all Pickman's goods, which were sold for 571. 18s., in part satisfaction of the said debts and costs, and that Wells and Allnutt insist they have a right to be satisfied, and then went on to find debts due to Pickman. Plea to the extent, Trin 1797. Prays oyer of the writ and inquisition, and pleads the judgment in K. B., (before the issuing and teste of the extent,) in Trin. 1796, by Wells and Allnutt against Pickman for 1500l. debt and 638. costs, and before the issuing and teste of the extent, ss. on the 15th of June 1796, the issuing of a fi. fa. to levy 366l. Os. 6d., directed to the sheriff of Surry, which was delivered to the sheriff before the issuing or teste of the extent, by virtue whereof the sheriff seized before the issuing or teste of the extent, ss. on the 13th of September 1796, and the goods remained in execution in the sheriff's hands at the time of issuing the extent and taking the inquisition. Traverse that Pickman was possessed at the issuing of the extent or taking the inquisition.

Replication Michaelmas term 1801. That Pickman made malt, on which duties arose, and for which the extent issued, and that the sheriff' had made no sale, and the property in the goods was not divested at the time of issuing the extent, but remained, with respect to the king and the duties, in Pickman; 2d, that the duties accrued before the delivery of the writ to the sheriff. There were other replications which did not apply to the present question.

Special demurrer to 1st replication. Causes that no fact in the plea is denied, or issue taken on the traverse, matter of law attempted to be put in issue. General demurrer to all the other replications.

Joinder in demurrer Hilary 1804.

Upon the 1st argument Mr. Wood was heard for the crown, and Mr. Abbott for the defendant, on the 27th of Nov. 1804.

Upon the 2d argument Mr. Attorney-General (Perceval) for the crown,
Mr. Serjt. Williams for the defendant, in January 1805.

Judgment for the crown 28th February 1807. Generally.
Notes of the Lord C. B. Macdonald's judgment.

The principle on which The King v. Cotton was decided was, that if the king's execution bore teste before the property was altered, it bound that property. If the premises are just, it reaches goods taken in execution, but not sold. Cooper v. Chitty, 1 Burr. 20. seems decisive; it is there laid down, that on sale by the sheriff before assignment under a commission of bankruptcy, no action can be maintained by the assignees. But if assignment took place after the delivery of the writ, but before sale, an action would lie against him, and it would be a trespass in him to sell, when the property was altered by assignment. It is fair to argue from thence, that the hands of the sheriff are equally tied up, if before sale any other matter occurred, which it did not absolutely alter, yet would bind the property which he had taken in execution. This case has occurred; two writs, one delivered to the sheriff the day before the other; the sheriff takes possession under the second writ first, then bailiffs are put in under the first writ; then the sheriff sells under that by which he took possession, and returns nulla bona

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The KING against ALLNUTT.

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The KING against ALLNUTT.

bona to the first. This is a false return, for by the statute of frauds, the goods were bound by delivery of the first writ, as they would have been before the stat. by the teste. I doubt therefore whether it be satisfactorily made out, either that the property is altered before the sale, or that the sheriff having once seized, is bound to proceed to sale, and that the property is to be considered as altered from the delivery of the writ. Between subject and subject the property is bound by delivery of the writ, but not altered ; íf only bound as between subject and subject, it may consist with that obligation, that a superior obligation by force of the king's process may intervene before a sale, and overpower it. I take it before the statute of frauds, the subject's writ of execution of a prior teste would have been preferred to another subject's writ of a subsequent teste, although the latter was first delivered to the sheriff, and was begun to be executed, provided the writ of prior teste came to the sheriff's hands before sale. If so, the question is reduced to this, whether the king's execution of a subsequent teste is not as effectual against the subject's execution, as a subject's writ of a prior teste before the statute of frauds, or as a prior delivery since the statute, would be against a subject's subsequent teste or subsequent delivery. As to which see Stringfellow's case, (Dyer,67.b.) recognized in The King v. Cotton, (Parker 112) agree that Stringfellow's case was a case which the letter of 3 Hen. 8. could not reach, and so was The King v. Cotton, because in neither was there judgment by the subject. But it may safely be concluded from the two cases, that The King v. Cotton was determined upon a principle which applies with equal force to the case of the king's and the subject's execution, in cases to which the statute 33 Hen. 8. cannot be applied. That there should exist a case of executions on the part of the king and of the subject, which (the king's execution being of a teste subsequent to the subject's writ of execution partly executed,) the statute of Hen. 8. could not touch, first led me to doubt of the construction of that statute in Uppom v. Sumner and Rorke v. Dayrell. Statutes Merchant and Staple were sufficiently familiar in Henry 8th's time to have been an object of the attention of the legislature; they were common assurances, perhaps more in use than judgment. And it does not readily occur, why a judgment which might be confessed as expeditiously as a statute could be acknowledged, and was in truth a less beneficial security to the subject than a statute, should be protected, and the others remain unprotected. But the thing which led me to doubt whether a true construction had been put upon this statute was this, that the priority of the judgment was no criterion, by which the priority or preference of executions could be determined as between subject and subject; and that if the priority of judgment were literally adhered to, it must have the effect of postponing the king's execution, though it should happen to be prior both in teste and delivery to the subject's execution on his prior judg ment. Buller, J. (4 7. R. 413.) hesitates respecting the effect of the statute, if the crown's prior execution should have happened to be completely executed, before the subject's execution upon his prior judgment was delivered to the sheriff. But he seems to be aware, that his construction of the statute would oblige him to maintain, that if the subject's subsequent execution upon his prior judgment came into the hands of the

sheriff