sheriff at any time before the crown's execution (prior both in teste and delivery) was completely executed, it must be preferred. Now this is putting the crown, as to its execution, upon a worse footing than a subject, inas much as between subject and subject, the priority of the delivery of the writ of execution always determines the question of preference without regard to the priority of judgment. My apprehension is, that when these cases were determined, it was not sufficiently considered how the law stood with respect to the prerogative of the crown, both in respect of the general preference which it claims to be entitled to for all its rights, and as to the particular prerogative in respect of execution for its debts. By the common law the crown was entitled to prior execution for its debts. This does not mean preference as between two executions sued out, the one by the crown, the other by the subject; but the crown was to be first satisfied its debt, before the subject could take out any execution at all. The crown protected its debtor against all executions by the subject, till the crown's debt was paid. We have a writ of protection in the register and Fitz. Nat. Brev. 28. B.; and notice is taken of this prerogative in Cr. Ly. and Madox: and this explains one of the cases cited in The King v Cotton, Parker, 123, where the king sent his writ out of Chancery to the justices of the C. B., commanding them to surcease execution in a suit between subject and subject, the defendant being his debtor, till the debt should be satisfied: which was considered as so much of course, that the plaintiff asked no more of the Court than that the cause should be left on foot in court by continuance on the roll, in order that when the king's debt should be satisfied, there should be an award of execution for him. Whether it may not be too critical to say that there is a legal distinction between prior execution, and preference in execution, I am not quite sure; the language of 33 Hen. 8. is that the king's suit and process shall be preferred before the suit of any person, and that he shall have first execution. It is not, that his execution shall be preferred, but that he shall have first execution; that is, he shall have execution before the subject shall be permitted to have his execution, which seems to have a pretty plain reference to this prerogative which went to restrain the subject from taking any execution at all, till the crown's debt was satisfied. This prerogative was carried so high formerly that an executor of one indebted to the king could not take probate till the king's debt was paid or secured to him. Instances are vouched by Madox, and the records of this court, of licences stating the prerogative, and stating that the king's debt had been in some manner compounded for or secured. At this day, in the case of an execution, the king's suit and process is preferred, and he is entitled to prior execution in respect of all his debts upon record. The diem clausit extremum issues without waiting for an executor or administrator; and when there is an executor or administrator, in the administration of assets, it would be a devastavit in him, if he were to pay the debt of the subject before the crown's debt upon record. But it has been held that since 33 Hen. 8. there is the single case of execution upon a judgment which they say is to be preferred to the king's debt, by force of the statute. This ap pears to me to go a great way to shew what prerogative of the crown it was

1812.

The KING against ALLNUTT.

to

to which the statute applies: that it was to the prerogative of having first execution in the sense in which I have explained the words, and not to any prerogative which goes to determine the preference between two executions, one of the crown and the other of the subject subsisting at the same time. This latter prerogative will be found to depend upon another principle, perfectly distinct from this, and far more general; determining a preference in favour of the crown in all cases, and touching all rights of what kind soever, where the crown's and the subject's right concur, and so come into competition. I take it to be an incontrovertible rule of law, that where the king's and the subject's title concur, the king's shall be preferred. The books are full of instances to that effect. A great number are cited in The AttorneyGeneral v. Andrew, Hard. 24., and among them Stringfellow's case, which is the case of an execution. But there is a multitude of other cases, which have nothing to do with executions. If 33 Hen. 8. bad meant to have taken away or abridged this prerogative, it can hardly be imagined that it would have controlled the effect of it in the particular instance of an execution, and left it to operate in its full force, in the multitude of other cases to which it applies. That in the case of two executions subsisting at the same time, the crown's and the subject's title do concur ; and that this is a different case from the case of a first execution, which supposes that to exist before the other appears to be manifest: each derives under his execution a title to be satisfied his debt out of the effects of his debtor. Both executions are in force at some one point of time before either is executed; the instant they thus concur, the king's prerogative to be preferred attaches. Stringfellow's case proves that priority of teste and even part execution avail nothing; an imperfect and even barely inchoate title gives way to a title of the same nature in the crown, whenever they are found to exist together. An execution executed by the subject alters the property, and there is then nothing left upon which the crown's execution can attach; in that case the crown's and the subject's title do not concur; but in the expressive language of Steel, C. B. in The Attorney-General v. Andrew, the subject's title is prior to the king's, and is executed. I observe that in the case of Rorke v. Dayrell it seems to be assumed in a part of the argument that as soon as the execution was begun to be executed, the property was altered; which to be sure would decide the question. I take that to be erroneous. The property is so far bound by delivery of the writ, that as between subject and subject, the question of priority is determined; but as against the crown it is not bound at all. But I take it the property is in no sense and to no purpose in the world altered either by delivery of the writ or by the actual taking possession of the goods.

SMITH,

1812.

SMITH, on the Demises of ARABELLA DENNISON and Others, against KING and DURNFORD.

THIS

HIS was an action of ejectment brought to recover certain premises described in the will hereinafter mentioned. The defendants were admitted to defend as landlords on the usual rule. The action was tried at the assizes for the county of Northumberland 1811, before Chambre, J., when a verdict was found for the plaintiffs, subject to the opinion of this Court on the following

case.

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66

Frances Isaacson being seised in fee of the premises in question by her will dated the 29th of March 1750, devised as follows: "I do hereby order and dispose of my estates in the following manner: I give, devise, and "bequeath all that my manor, or reputed manor of "Fenton, and all that my mill called Fenton-Mill, and "all my demesne lands of Fenton, and all my village or township of Nesbytt, all of them situate, and being in "the county of Northumberland, with all and every the "messuages, cottages, lands, tenements, hereditaments, rights, members, and appurtenants whatsoever, to the same respectively belonging or in any wise apper"taining, or therewith held, used, or enjoyed, and all "other my real estate whatsoever, and wheresoever, unto "my cousin Mary Altham, wife of R. Altham, Esquire, " and to my cousin Arabella Isaacson and their heirs and

legacies under the will; and that there was no resulting use to the heir at law. Possession of cestui que trust not adverse to the title of the trustee. "assigns

1812.

SMITH against KING.

"assigns for ever, subject nevertheless to and chargeable "with the payment of the following annuities herein"after mentioned; (that is to say)" the testatrix then gave several annuities, (inter alia,) one of 150l. to her brother W. Isaacson during his life; another of 150l. to her sister Sarah Isaacson during her life, for her sole, separate, and personal use, exclusive of her husband, and not to be subject to his debts or control; and for which her receipts should be a good discharge; remainder to her son Henry Creagh Isaacson for life; remainder to any other her child or children that should be living at the time of the testatrix's death, and to the survivors and survivor of such children during their respective lives in equal proportions if more than one, and if but one then to such one for his or her life; and lastly, from and after the decease of her aunt Margaret, (to whom she gave an annuity of 1007.) to her brother Anthony Isaacson for life an annuity of 1507.; remainder unto and amongst all and every the children of her said brother, in the same manner as before limited to the children of her sister. "All which annuities I will and direct shall be paid quar

terly, without any deduction, from the day of my death; "and I do hereby charge my real estate with the payment "thereof. And as concerning all and every my leasehold "estates in the county of Northumberland, &c., I do "give, devise, and bequeath the same, together with all "the rest and residue of my personal estate except 66 my wearing apparel, &c., to R. Altham, E. Byron, "and G. Alcock, their executors and administrators, "subject to and chargeable with the payment of my "just debts, and of the legacies hereinafter mentioned; "that is to say, (amongst other legacies,) to my cousin "M. Altham 1007.; to my cousin Arabella Isaacson 3001.;

"and

" and I also give her (several pieces of plate and trinkets.) "I give the aforesaid R. Altham, E. Byron, and G. Alcock, the sum of 2007. a-piece." The testatrix then directed that the annuity before devised to her brother William, should, upon his death, go to such of his children as should be living at the time of her decease, and after their deaths she gave one moiety thereof to her sister Sarah for her life, and after her death to such of her children, &c. in the same manner, and to the survivors or survivor of them. The will then proceeded thus: "And the other moiety of the said annuity, together with "the surplus profits of the said real estate, to be computed from the time of my decease, I give to my brother Anthony Isaacson for his life; and after his death to such "of his children that shall be living at the time of my "death, and to the survivors and survivor of them during

66

66

their respective natural lives; and my further will is, that "after the several deceases of my said sister and her chil"dren, then the said annuities of 1507. and the 757. as "aforesaid, given to her and them shall go to my said. "brother Anthony for life, if he shall be then living, and "if he be dead, then to such of his children and the sur"vivors and survivor of them that shall be living at my "death; and in case of his and their deaths first happen"ing, then my will is, that the whole rents and profits of

my said real estate shall go and be paid to my said sis"ter Sarah Isaacson during her life, if she should be then "living, and if she should be dead, then to be paid to "such of the surviving child or children of my said bro"thers and sister that shall be living at the time of my

66

decease, for his, her, or their natural life or lives; and, "lastly, I do constitute and appoint the said R. Altham, "E. Byron, and G. Alcock, executors of this my will."

The

1812.

SMITH

against KING.