Page:Prerogatives of the Crown.djvu/321

 Ch.XII. Pt.I. Sec. v.] Extents. soi 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 pro- cess 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 [h) by the subject, take the defendant's lands and thereby oust the subject's execu- tion {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 de- livered to him by a liberate^ he shall hold it discharged from the King's debt; but if the King's extent come before the pos- session 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 pro- perty 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 ; there- fore 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 ; be- cause such extent and liberate of the subject was only execut- ing 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.'3Leon.239. (c) Gilb. Exch. 91. 3 Leon. 240., Hardr. 23. West, ICO. ' Cases in Pari. 72. Hardr. 106. 1 East, {h) 1 East, 338. 338. - 16 East, 279. prior