proceedings of other creditors, till the Crown debt be satisfied (a). This was effected by a writ of protection, and antiently this prerogative was carried so far that the executor of the King's debtor could not take out probate or intermeddle without the King's permission (b). Great inconvenience, says Lord Coke (c), arose out of these protections; for to delay other men of their suits the King's debts were the more slowly paid and therefore by the 25 Edw. 3. st. 5. c. 15. "Forasmuch as our Lord the King hath made, before this time, protections to divers people which were bounden to him in some manner of debt; that they should not be impleaded of the debts which they owed to other till they had made satisfaction to our Lord the King of that which to him was due by them by reason of his prerogative; and so during such protections no man hath dared to implead such debtors: it is accorded and assented, that notwithstanding such protections, the parties which have action against their debtors shall be answered in the King's Court by their debtors, and if judgment be thereupon given for the plaintiff or demandant, the execution of the same judgment shall be put in suspence (d), till satisfaction be made to the King of his debt. And if the creditors will undertake for the King's debt, they shall be thereunto received, and moreover shall have execution against their debtors of the debt due to them; and also shall recover against them as much as they shall pay to the King for them." So that since this statute the Crown can only delay the execution, not the suit of its subjects: and the statute only applies where a writ of protection is actually granted (e). Protections are now obsolete though the power of the Crown to grant them remains entire (f). Consequently in the King v. Cotton (g), the King sent his writ out of Chancery to the justices of 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; and this was considered so much a matter of course, that the plaintiff asked no more of the Court than that the cause should be kept on foot in Court by continuance on (a) F. N. B. 28, B. Co. Lit. 131, b. Godb. 290. 2 Rol. R. 294. (b) 16 East, 261, 281. (c) Co. Lit. 131, b. (d) This was done in 41 Edw. 3. See Fitz. Abr. Execution, pl. 38, cited in (e) Cro. Car. 389. (f) Co. Lit. 131, b. and note 206. (g) Parker, 123. the the roll in order that when the King's debt should be satisfied there should be an award of execution for him. So in respect of a subject being engaged in the King's service out of the realm, the King may, by his writ of protection, privilege such subject from all personal and many real suits for one year (a). It seems at the present day to be clear that the subject may have an interest in his debtor's body, simul et semel with the Crown (b); for, as observed by Lord Hobart, "the body is all to all," and the Crown cannot be prejudiced by the subjects having an interest in common with him in the body of its debtor. This doctrine holds it should seem though the party be first taken by the Crown (c). The Crown has however the prerogative right of choosing the custody in which its prisoner is to be kept; and no subject can without the consent of the Crown remove the party from such custody for the purpose of charging him with a declaration, charging him in execution, or surrendering him in discharge of his bail, &c. (d) As the bankrupt (e) and insolvent laws do not bind the Crown, a bankrupt's certificate and insolvent's discharge will not entitle the party to be released from confinement on an extent. And it seems to have been held that a bankrupt may be arrested for a Crown debt when under examination eundo et redeundo (f)• Goods and Sums of Money. The goods and monies of the defendant are also to be seized under the extent. An extent binds the defendant's goods, whatever the nature of the debt may be, only from the award of execution, that is (a) Co. Lit. 130, 1. 3 Bla Com. 289. (b) See Cro. Car. 389, 390. Savile, R. 29. Hob. 115. and the following notes, vide Dyer, 297. pl. 24. (c) Ibid. But see Godb. 298. (d) 5 Taunt. 503. and cases there cited. In this case the defendant having given bail to the action and being in custody of the sheriffs of London under an extent of the Crown, the Court of C. P. held, that they could not grant his bail, a habeas corpus to bring him up, and render him in their discharge to the fleet without the consent of the Crown. See further on this subject, 3 Manning, 533. In Criminal Cases, &c. Chitty, Crim. Law, 811, 812. (e) Bunb, 202. 1 Atk. 262. (f) Bla. Rep. 1142. 1 Montague, Bankrupt Laws, 664. in strictness the fiat (a); but as it is the sheriff's duty, as appears from the form of the writ, merely to take the property the defendant had at the time the writ is tested, it is the invariable practice to teste the writ as of the date of the fiat, and it cannot be tested before. No difficulties can therefore arise in this respect as to the teste and fiat, and the distinction between them is nominal. The King is not named in, and consequently is not bound by, the statute of frauds, 29 Car. 2. c. 3. which directs that goods shall be bound only from the delivery of writs of execution to the sheriff (b). The sheriff may seize all the defendant's goods in his own possession or in the hands of another as his trustee (c), except things necessary pro victu of himself and family: and except ́also averia caruca, if in the latter case there be other chattels sufficient (d). The King is not bound by a sale in market overt(e); or by the custom of London for the pledgee to retain goods against the real owner (ƒ). The general rule is, that a stranger insisting that a seizure under an extent is invalid, must claim a property in the goods taken (g). It will be proper to consider the effect of an extent: 1st, Where a stranger claims a special or other property in the goods. 2dly, Where he claims an interest without a property. First, in the case of a claim of a special property in the goods, as contra-distinguished from the general property in them, the rule is, that if such claim arose prior to the fiat or teste of the writ, the extent shall not operate. As if the goods were boná fide and not fraudulently assigned in trust for creditors, &c. though such assignment amount to an act of bankruptcy (h), ..or were pawned, demised, &c. to another, for a term certain, so as to vest a special property in them in the pawnee or (a) 8 Rep. 171. Gilb. Excheq. 90. Stra. 754. Warrant from Commissioners of Taxes, Ibid. 982. (b) See 7 Viner, 105. 2 Bac. Ab. 365, K. Gilb. Excheq. 90. P (c) 12 Rep. 2. (d) 2 Rol. Abr. 160. pl. 8. Com. Dig. Dette, G. 3. 16 Vin. Ab. 520. tit. **Prerog. I. pl. 8. (e) 2 Inst. 719. (ƒ) Plowd. 243. Bro. Prerog. 5. If (g) See post, ch. 13. s. 3. div. 1. i 1 bailee. bailee (a). It seems however that goods pawned before the teste of the extent, may be taken as against the pawnee, on satisfaction of the pledge (b), or taken and sold, subject to the pawnee's right (c). As however the Crown is not bound, by the bankrupt statutes not being named in them, and relations which are but fictions of law, cannot bind the King (d), the extent operates on the defendant's goods, though a commission of bankrupt has issued against him, if the assignment of his effects be not executed before the fiat or teste of the writ; but the Crown cannot take the effects if actually assigned before the fiat or teste, and a provisional assignment is sufficient for this purpose (e). If the assignment of the bankrupt's effects and the teste of the extent be on the same day, the King's prerogative shall prevail (ƒ). But an extent issued out of term cannot be ante-dated, so as to over-reach the assignment (g). It has been asserted (h), that if husband and wife are joint tenants of a term, demised to them during the coverture, and the husband become indebted to the Crown, the King may have execution of this term against the wife, after the husband's death, because the taking the lease was the husband's act, and he had power of the term at the time of his death, and the wife came to it without valuable consideration, and quodammodo continued in of the interest of her husband. Rolle however he does not see how this doctrine can be lawentant que l'execution ne relate (i);' and it seems to be unfounded, if there be no fraud. On the death of the husband says (g) Stra. 749. It is said the Crown cannot prove under a commission. Ibid. 752. (h) In Sir G. Fleetwood's Case, 8 Rep. 171; and the authority cited for the position is 50 Ass. pl. 5. See 1 Wightw. 37. (i) 2 Rol. Ab. 157, Prerog. F. pl. 5. And see 16 Vin. Ab. 521. If a party purchase or convey lands to himself and his wife (for her jointure), and to his heirs, and then becomes indebted to the King, and dies so, no execution having issued during his life, the land cannot be charged during the life of his wife. Ibid. 156. Post, 300. the the chattle real vests, by operation of law, absolutely in the wife, as survivor, he having omitted to dispose of it during her life (a); and there is no principle of law in favour of a relation back further than the teste of the writ. And dower is free from the claims of the Crown against the deceased husband (b). Under an extent against one partner, the Crown may seize partnership goods, but it can sell only the interest of the partner against whom the extent issues; which is his share of the surplus, after payment of the partnership debts (c). The invariable form of the writ shews, that under an extent against several, the separate goods of each may be taken. Secondly, where a stranger claims an interest, without a property in the goods, the general rule seems to be, that though such interest arose prior to the fiat or teste of the writ, the prerogative shall prevail. Therefore where goods are distrained, but not sold, before the fiat or teste, they may be taken, because till the sale the property in them remains in the defendant (d). Nor is the landlord in such case entitled to a year's rent, under the statute 8 Ann, c. 14 (e). So the effects of a bankrupt are subject to the extent, if not actually assigned before the fiat or teste, though the creditors have an interest therein (f). But goods holden by the defendant in his representative capacity of executor or administrator, cannot be taken (g). And if the defendant be a member of a corporation which has been fined, the goods of which he is possessed in jure proprio, shall not be seized for the fine (h). Nor is an executor or administrator liable, even at the suit of the Crown, for the testator's or intestate's debts, if there be no assets (i). It seems that the cattle of a stranger, levant and couchant, on the debtor's property, cannot be taken on an extent (k), though they may be on a levari facias. It is even said that if the King's debtor suffer A. to manure his land, the goods of A. may be (a) Bac. Ab. Baron and Feme, C. 2. D. Co. Lit. 351. a note. (b) Co. Lit. 31, a. post, 300. (c) 1 Wightw. 50. See 3 Bos. and P. 288, 9. See ante, ch. 11. s. 3. (d) Parker, 112, 121. 4 T. R. 211. 16 East, 279. (e) See seet, 8. So on extents in aid. 2 Price, 17. (ƒ) Ante, 286. (g) Rol. Ab. Prerogative, 159, 1. 49. (i) 33 H. 8. c. 39. s. 77. Rol. Ah. 159. 16 Vin. Ab. 519. 1 Ld. Raym. 307. 12 Mod. 178. |