seized on a levari by the King for the debt (a). But in the case of tenants in common, the cattle of one going upon the land cannot be taken for the Crown debt due from the other (b). With respect to the powers of the extent, in case the defendant's goods have been already taken or seized in execution on a fieri facias, &c. at the suit of a subject, the statute 33 Hen. 8. c. 39. s. 74. enacts, that "if any suit be commenced or taken, or any process be hereafter awarded for the King, for the recovery of any of the King's debts, that then the same suit and process shall be preferred before the suit of any person or persons: and that our said Sovereign Lord, his heirs and successors, shall have first execution against any defendant or defendants, of and for his said debts, before any other person or persons, so always that the King's said suit be taken and commenced, or process awarded, for the said debt at the suit of our said Sovereign Lord the King, his heirs or successors, before judgment given for the said other person or persons." The general common law rule is, that even a prior seizure under a fieri facias, does not operate or render the execution complete against an extent; though a sale previous to the fiat or teste of the extent, will secure the subject's right (c). Notwithstanding the above section, it is clear therefore that if the Crown suit be commenced or the fiat for the extent be made, before judgment be given for the subject, the Crown process shall be preferred (d). And the word "debt," in the above section, includes a "penalty" due to the Crown. Therefore in Butler v. Butler (e), it was decided that process sued out by the Crown against a defendant to recover penalties, upon which judgment for the Crown is afterwards obtained, entitles the King's execution to have priority within the statute, before the execution of a subject, whose execution had issued and been commenced on a judgment recovered against the same defendant prior to the King's judgment, but subsequent to the commencement of the King's process: the King's writ of execution having been delivered to the sheriff 125. Gilb. Excheq. 90. 16 East, 264, 5. (a) Lane, 91. 16 Vin. Ab. 519, tit. Prerogative, L. (b) lbid. 2 Rol. Abr.. 457. Lord Raym. 308, (c) Dyer, 67, b. margin. Parker, (d) 1 Fast, 338. (e) Ibid. before before the actual sale of the defendant's goods, under the plaintiff's execution. But since the statute, it has become a dubious question whether or not the Crown suit is to be preferred where the subject's judgment is prior to the commencement of the Crown suit, or the award of the Crown process, and where the subject's writ is also delivered to the sheriff before the extent. The Courts of Common Pleas (a) and King's Bench (6) have unanimously decided in favor of the subject on this point, but the Court of Exchequer have subsequently and recently held otherwise (c). As the authorities are contradictory, the subject demands investigation. (b) Rorke v. Dayrell, 4 Term Rep. 402. (c) The King v. Allnut, cited 16 East, 278, notes. See the argument in Thurston v. Mills, ibid. 254. confirmed in the King v. Sloper and Allen, Exchequer, Saturday, November 14, 1818. The following is the report of that case in the Times "The Attorney. newspaper. General on a former day obtained a rule calling on the sheriff to pay over to the Crown a certain sum of money which he had in his hands, the property of the defendants, in satisfaction of a debt due from them to his Majesty. "Sir William Owen, on the part of Messrs. Morlands, bankers, opposed the motion. It appeared that Messrs. Morlands had obtained a verdict against the defendants, and had entered up judgment, sued out execution, and placed it in the hands of the sheriff, who had levied under it. Three days after the levy was made, and before the goods were sold, his Majesty came in with his writ of extent. The sheriff however, on the part of Messrs. Mor lands, retained the money which was the proceeds of the goods, on the ground U That that they having obtained their jndgment and execution before his Majesty's writ came down, the Crown was ousted. The Attorney-General, on the other side, contended, that the taking of the goods by the sheriff did not at all divest Sloper and Allen of their property in them. They were still their goods, and only in the legal custody or possession of the sheriff, for a purpose to be afterwards carried into effect, namely, for sale, in order that the proceeds might be applied to payment of a debt due from the defendant to Messrs. Morlands. The King's writ came down before that circumstance took place; and therefore the rule applied laid down in the King and Allnut, in which case the judges held, that up to the change of property actually taking place, the King's writ should have precedence of all others. Had the sale taken place only one minute before the King's writ arrived, he was ready to acknowledge the King would have been ousted; but as it was, he contended his motion was well founded. "The Court after hearing the argument, decided that the Attorney-General was entitled to his rule. The case of the King and Allnut was decided fourteen years ago; the Court had acted on it ever since; and until it was impeached, The That the Crown is entitled at common law to a preference, till the subject's execution is complete, is not denied. general common law doctrine, that the prerogative must prevail where it stands in competition with a subject's rights, arising concurrently with those of the Crown, and that consequently the prior part of the 74th section is merely declaratory of the old common law, is also admitted. But it is contended on the part of the subject, that the statute confers various benefits and advantages to the Crown, as by putting bonds to the King on the footing of statutes staple, by giving to the King the prerogative execution by extent, &c. and therefore he can only avail himself of it, by taking it subject to the express and clear exception in favor of the subject, in case his judgment be obtained before the King's suit be commenced or his process awarded and that the latter part of the clause is restrictive and imposes a condition on the prerogative. But the chief ground of Lord Kenyon's opinion in Rorke v. Dayrell, namely, that the property of the goods was altered by the delivery of the writ to the Sheriff, is now given up, it being admitted that the property of the goods is in the defendant till sale (a). On the other hand, the prior claim of the Crown is contended for principally on these grounds: First, It is urged, that the case falls within the general common law principle, exemplified in the case of a distress for the same goods, or the bankruptcy of the defendant, that if the King's execution bear teste before the property in the goods is actually altered, they are bound by the extent, and that until the sale under a fieri facias the property remains, as is admitted on the other side, in the defendant. That however the case may be between subject and subject, a superior obligation, by force of the Crown process, may intervene before a sale, and overpower it. To obviate the construction put on the 74th section, in favor of the subject, it is contended on the part of the Crown, that if the words "so that the King's suit or process be before the subject's judgment," be literally construed, the Crown peached, by some motion for its reconsideration, the Court would not depart from the rule there laid down. "The rule, calling on the sheriff to pay over the money, was made absolute." (a) 16 East, 267, 282. would would be placed in a worse condition than a subject, as the subject's prior judgment would prevail against the extent, though the execution on the judgment were after the extent. That the priority of the judgment never was a criterion by which the preference of execution could be determined. That express words are necessary to abridge or take away a prerogative, and if any other construction can be reasonably applied to the words of the 74th section, it should be adopted. That the history of this branch of the prerogative will prove that the statute was meant to give the subject a benefit, and restrain the Crown in a distinct and irrelevant case. "By the antient prerogative of the Crown (it is ingeniously argued (a)), as it stood at common law, the King was to be paid first, and was entitled to stay the suit 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 (b). The first alteration that was made by statute in the King's prerogative was by 25 Edw. 3. stat. 5. c. 19. which narrowed the prerogative, by allowing the suits of other creditors to proceed to judgment, notwithstanding such protections; but the execution was to be suspended, unless the creditor should undertake for the King's debt. The next alteration was by the statute now under discussion, 33 Hen. 8., 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 restraint, 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 (a) 16 East, 260, &c. 281, 2. U 2 (b) See Bac. Abr. Statute, L. 4. subject 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 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 issuing execution until the King's debt be satisfied in the case there provided for. But the statute was never intended to be applied to concurrent executions." It may be observed upon this most important question, that this mode of construing the statute seems reasonable, and it does not appear that any positive objection to this explanation of it has been offered. The leaning and construction should, it seems, be rather in favor of the Crown, in the case of an enactment apparently abridging its prerogatives; and in order to discover the scope and meaning of a statute, especially if it be ambiguous, it is perfectly consistent with legal principles to regard the common law as it existed at the period when the act was passed (a). And it appears on the whole highly probable that the question, if it arose again, would be finally settled, in conformity with the very recent decision in the Exchequer, in favor of the Crown (b). If the facts are returned specially by the jury, which appears to be the usual and most advisable course, they must be stated (a) See Bac. Abr. Statute, I. 4. (b) Ante, 289. See however Mr. West's observations, and |