When the rights of the King and of the subject concur, those of the King are to be preferred.
This prerogative is said to depend upon the principle that no laches can be imputed to the King, who is supposed by our law to be so engrossed by public business as not to be able to take care of every private matter relating to the revenue ; and that the King is in reality to be understood as the nation at large, to whose interest that of any private individual ought to give way ; and which prerogative, until restrained by recent statutes, extended to prevent the other creditors of the King's debtor or person indebted to the Crown, from suing him, and the King's debtor from making any will of his personal effects without the sanction of the Crown.
It has been held that after seizure and before sale under a writ of fi. fa., whilst the defendant's goods were yet in the possession of tne sheriff, the officers of customs having seized them under a warrant to levy a penalty incurred by the defendant for an offence against the revenue laws ; the sheriff was justified in returning nulla bona to the writ of fi. fa. Also, that goods of a debtor already seized under a writ of fi. fa., but not sold, may be taken under a writ of extent, in chief or in aid, tested after such seizure. The rule as to writs of execution being : as to ordinary persons, that the writ first delivered to the sheriff shall be first executed, without regard to the teste ; but as between the King and a subject, the King's writ, though delivered last, shall be executed first, without regard to the teste ; the property in the goods. not being changed by the seizure, and the writs being concurring. Where, however, the property has been changed, and the right of the subject is complete before that of the King commences, the rule does not apply ; for there is in that case no point at which the two rights conflict ; nor can there be a question as to which of the two claims ought to prevail when that of the subject has prevailed already. The property in goods seized by the sheriff under a fi. fa. are not changed, however, until sale, and the execution-debtor, upon tendering the amount for which the levyis made, with the sheriff's charges thereon, is entitled to a return of the goods. The right of the Crown is, however, upon the same principle of concurrence or privity, subject to any special property in the goods created by act of the party ; as, where a factor holds goods upon which he has a lien for advances made before the teste of the writ, the Crown can only take the goods subject to that lien ; and so of goods pledged. The difference in the cases being, that goods in possession of the sheriff, the rule applies to an assignee in bankruptcy also, are in custodia legis, for the benefit of the parties entitled ; but those in the hands of the factor, or pawnee, are in the hands of the parties themselves : those in custodia legis being in a situation in which the right of the Crown and that of the subject may come in conflict, but those in possession of the parties not being in such a situation.
It may also be observed that in all cases of joint grants, devises, and gifts to the King and a subject, incapable of separation, and division, the King shall take the whole ; it being inconsistent with the dignity of a King to be joint owner of property with a subject.