Page:Prerogatives of the Crown.djvu/310

 290 Extents. [Ch.XII. Pt.I. Sec.V. That the Crown is entitled at common law to a preference, till the subject's execution is complete, is not denied. The general common law doctrine, that the prerogative must pre- vail where it stands in competition with a subject's rights, arising concurrently with those of the Crown, and that conse- quently the prior part of the T^th 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 be- nefits 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 u. 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 contend- ed for principally on these grounds : First, It is urged, that the case falls within the general com- mon 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 Jieri facias the property remains, as is admit- ted 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 Y^th section, in fa- vor 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 recon- pay over the money, was made abso- sideration, the Court would not depart lute." from the rule there laid down. (a) IG East, 267, 282. " The rule, calling on the sheriff to would