1. Of course, even bona fide alienation and charges, do not in general bind the King, if they be made after the period from which the lands of the Crown debtor are bound (a); for the King's debt is in the nature of an original charge on the land itself, and, therefore, must subject and bind every one that claims under it. And it has been held, that a term of years, created out of an estate, prior to the right of the Crown attaching on the estate, and assigned to a trustee, in trust for a purchaser, would not protect such purchaser against Crown debts, though he purchased bond fide, and without notice (6). But it is still a common law rule, that alienations and charges, as sales, legal mortgages, &c. and even, it seems (c), voluntary charges, if bona fide created before the claim of the Crown on the land commenced, are valid (d). And we have just observed, that a term for years bona fide purchased from the defendant, shall be bound as against a purchaser, as a chattel only, from the award of execution (e). The general common law doctrine is, however qualified by, and must be carefully regarded, with reference to the 75th section of the statute of extents, 33 H. 8. c. 39. which vests in the Crown a continuing claim in certain cases on estates, after the death of the Crown debtor. Fee simple lands might it seems be followed, but at common law, if a tenant in tail became indebted to the King in any manner and died, the King could not extend the land in the seisin of the issue in tail, because the King was bound by the statute de donis conditionalibus (f). To remedy this, the statute of Hen. 8. enacted, that all manors, lands, tenements, possessions and heredita ments, "the which now be, or that hereafter shall come or be, in or to the hands, possession, occupation or seisin of any person or persons, to whom the same manors, lands, tenements or hereditaments, have heretofore or hereafter shall descend, revert or remain in fee simple or in fee tail, general or special, (a) 7 Rep. 21; 3rd Resolution. (b) Rex v. Smith, Sugd. V. and P. App. &c. See however Mr. Sugden's observations on this point. (c) At least this is so when the Crown claims by forfeiture. 2 Vez. 116. (d) Gilb. Excheq. 91. Moore, 12, 126. 2 Mod. 247. 1 Price, 207. 1 Wightw. 34. Per Cur. in Rex v. Smith, 8 Rep. 171. by, from or after the death of any his or their ancestor or ancestors as heir, or by gift of his ancestors whose heir he is, which said ancestor or ancestors was, is or shall be indebted to the King, or to any other person or persons to his use, by judgment, recognizance, obligation or other specialty, the debt whereof is or shall not be contented and paid: that then in every such case the same manors, lands, tenements, possessions and hereditaments shall be and stand, by authority of this Act, from henceforth charged and chargeable to and for the payment of the same debt, and of every part thereof." And by the same section, the heir is made liable, though not mentioned in the specialty (a). The debts of the ancestor mentioned in the statute are not confined to such as accrued before the conveyance: and consequently the heir who claims by the gift of his ancestor, whether in fee simple or in fee tail, shall be bound to pay the King's debt, whether due before or after the gift (b). It will however be remarked that the statute mentions only four species of debts from the ancestor, viz. "by judgment, recognizance, obligation or other specialty," and is confined to debts" to the King or to any other person or persons to his use." Consequently other debts than those by judgment, recognizance, obligation or other specialty, remain as at common law: and the statute does not apply where the debt, of whatever nature it be, was not originally due to the King but to a subject, and accrued to the King by reason of an attainder, outlawry, forfeiture, gift of the party, or by any other collateral way or means. In neither of such cases is the land in the possession of the heir in tail, chargeable for the Crown debt (c). And it has been resolved on the statute, that if a tenant in tail become indebted to the King by one of the four ways mentioned therein and die, and before any process or extent, the issue in tail bonâ fide alien the land in tail, it shall not be extended by force of the statute, for it only renders liable the land in the possession or seisin of the heir in tail, against the issue in tail, and not the alienee (d). Lands in fee simple. were extendible at common law, in the hands of any person; (a) See 1 Inst. 386, a. Wood's Inst. 20. (b) 7 Rep. 19; 6th Resolution. (c) Ibid. 21; 2d and 4th Resolution. (d) Ibid. 3rd Resolution. and and therefore as to them the statute was declarativum antiqui juris, and the alienee of such fee simple lands, from the heir of the Crown debtor, would not, it seems, be protected; but as to estates tail, the statute was introductivum novi juris, against the issue in tail. It seems also that a conveyance in consideration of marriage, is not a gift within the meaning of the statute (a). It has been observed by C. B. Manwood (b), that the heir of a Crown debtor shall not be charged if his executor have assets; nor the feoffee who comes in by purchase, if the heir have assets; for the heir comes to the land gratis, and therefore with reason ought to be charged. On the death of the King's debtor, process shall issue against the executors, the heir and terretenants jointly at once (c). It seems that lands held by the Crown debtor when alive, as joint-tenant with another person who survives him cannot be extended after the debtor's death in the hands of the survivor, they being his by survivorship (d). And if a party purchase or convey lands to himself and his wife (for her jointure), and to his heirs, and then become indebted to the King and die so, no execution having issued during his life, the land cannot be charged during the life of his wife (e). And the wife's dower is free from debts due from the deceased husband to the Crown (f). Commissioners of bankrupts have but a power and the assignment from them to the assignees of the bankrupt's lands by bargain and sale is not complete till enrolment (g): and consequently the Crown may take the lands though the teste of the writ be subsequent to the bargain and sale if it be prior to the enrolment (h). 2. As to the effect of the extent, where a subject has a lien or claim on the defendant's lands by virtue of a judgment or other debt of record or an execution, &c. Where the subject has a lien on the land by judgment prior to the King's debt of record or the entry into office, &c. or to the commencement of the Crown suit, and has perfected his execution before the issuing of the extent at the suit of the. Crown, the subject shall retain the lands against the Crown's extent (a). But it appears that if the Crown suit be commenced prior to the subject's judgment being obtained, the Crown process shall at all events prevail. It seems to have been clear at common law, that though a subject has a judgment prior to the King's debt or before office entered into under the statute of Elizabeth, yet the King might by an extent issued before execution commenced, or even after it was commenced if before it was perfected (b) by the subject, take the defendant's lands and thereby oust the subject's execution (c). Chief Baron Gilbert observes, "if the subject's debt be by statute staple on judgment, and prior to the King's debt; and the King extend the lands first; the subject shall not, by any after extent, take them out of his hands. But if such judgment be extended, and the subject has the possession delivered to him by a liberate, he shall hold it discharged from the King's debt; but if the King's extent come before the possession by liberate, the King's extent shall be preferred, and the subject wait till the King's debt be satisfied. The reason of the difference is, because the King's debt is in nature of a feudal charge; which if it comes on the lands before the property of them is altered, it seizes them as it might have done for the original service at first imposed; but if there had been a lawful alienation before such debt, there is not the feud of the tenant, and therefore such charge cannot affect it; therefore if there was a precedent judgment or statute staple, and a liberate pursuant, before the King's extent comes down, there it cannot charge the lands; because the property is altered by the extent of the subject, which relates to the time that the judgment was first given, or statute staple acknowledged; because such extent and liberate of the subject was only executing such judgment or statute on the land, and the execution was relative to that judgment, which was prior to the King's charge; and so there was a complete alteration of property (a) Gilb. Exch. 91, &c, 3 Leon. 239. Hardr. 23. West, 160. (b) 1 East, 338. (c) Gilb. Exch. 91. 3 Leon. 240. Cases in Parl. 72. Hardr. 106. 1 East, 338. 16 East, 279. prior to the King's charge, before his extent came down: but if the King's extent had come before the liberate, he had charged the land whilst it was in the hands of his debtor, and then his charge would be satisfied, as if it had been in the first feudal donation; for nothing can hinder the King's charge, (which comes on the land as if it had been settled in the first feudal donation,) but what amounts to a precedent alienation; for so far as there is a precedent alienation, they are not the lands of his debtor, and the feudal charge is only laid on the lands of his debtor; and if such lands were not his debtor's lands, they are not subject to that charge; and a liberate in pursuance to a preceding judgment, amounts to an alienation of the land itself, before it became charged to the King." "Note also, the lien upon lands by the subject's debt came in by the statute West. 2.; for before that, the judgment did not bind the lands; but the King's debt bound the land before that statute. But that statute does not touch the King's prerogative, and therefore the King has a power to levy upon the lands notwithstanding the preceding lien by judgment; and therefore the King may seize lands that are bound by a preceding judgment, whilst the lands are in the custody of the law on the elegit or extent, and before they are actually delivered out to the creditor by the liberate, as a satisfaction of his debt; but when they were actually delivered out to the creditor by the liberate, they then no longer belonged to the debtor; since the King's writ had delivered them over for satisfaction of a debt that was precedent to the King's: for the creditor did not take them under the burthen of the King's debt, because his lien was antecedent to the King's debt; and it were repugnant to construe him to take the land sub onere of the King's debt, when he took it in satisfaction of a debt precedent." It will be observed that C. B. Gilbert does not notice the provisions of the statute 33 Hen. 8. c. 39. s. 74. which certainly render the above doctrine doubtful in cases where the Crown process is issued for debts not due on outlawries, &c.; but for debts originally due to the King, and where the subject's judgment has been obtained, and execution commenced before the Crown suit has commenced, or its process been awarded. This has been already considered (a). (a) Ante, 289 to 292. The |