Page:Prerogatives of the Crown.djvu/305

 Ch.XII. Pt.L Sec. v.] ExHenls. 28/> in strictness the fiat (a) ; but as it is the sheriff's duty, as ap- pears from the form of the writ, merely to take the property the defendant had at the time the writ is tested, it is the inva- riable 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. w^hich directs that goods shall be bound only from the delivery of writs of execution to the sheriff (&). The sheriff may seize all the defendant's goods in his ow^n possession or in the hands of another as his trustee (c except things necessary p'O victu of himself and family : and except also averia carucce^ if in the latter case there be other chat- tels sufficient [d). The King is not bound by a sale in market overt (^); or by the custom of London for the pledgee to retain goods against the real owner (^ ). The general rule is, that a stranger insisting that a seizure under an extent is invalid, must claim a •property in the goods taken (^). It will be proper to consider the effect of an extent: 1st, Where a stranger claims a special or other property in the ^oods. 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 bond Jide and not fraudulently assigned in trust for creditors, &c. though such assignment amount to an act of bankruptcy (//), 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. F.xcheq. 90. (/) Plowd. 243^ Iko. Prerog. 5. If Stra. 754. Warrant from Commission- a Tortfeasor hold defendant's goods the rrs of Taxes, Ibid. 982. inquisition should find the fact to ground (i) See 7 Viner, 105. 2 l>ac. Ab. process of withcnmm or an information 365, K. Gilb. Kxcheq. 90. in the nature of trover or jletinue against (c) 12 Rep. 2. him, 1 Manning, Pr. 544, 5. 1 Mod.90. (</) 2 Rol. Abr. 160. pi. 8. Com. pi. 58. Diir. r)e«e, G. 3. 16 Vin. Ab. 590. tit. (/r) See post, ch. 13. s. 3. div. 1. ^lerog. 1. pi. 8. (//) West. 115. Tidd, 5th ed. ^91 ie) 2 Inst. 713. 3 M. and F. 371. bailee. k