Page:Prerogatives of the Crown.djvu/311

Ch.XII. Pt.I.Sec.V.] Extents. 291 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 prero- gative, and if any other construction can be reasonably applied to the words of the l^th. 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 crer ditors to proceed to judgment, notwithstanding such protec- tions ; but the execution was to be suspended, unless the cre^ ditor should undertake for the King's debt. The next altera- tion 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 consi- derations, 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 re- straint, 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 («) 16 East, 260, &c. 281, 2. (5) See Bac. Abr. Statute, I. 4. u 2 subject