hurteth not the Merchant nor no other but only a smal number of delicate persons and those also who are of most able and best estate for their pleasure but when the King is in want he is to be relieved by a general imposition or subsidie upon all the subjects the imposition which is here said to be so great and intollerable is an evil president for if he may do so much he may do it in infinitum and upon all other Merchandise for the Imposition I say that it is reasonable for it is no more then foure times so much then was before and that there hath been asmuch done in antient time in other Imposts as in that of Wooll which was at first but an Noble a fack and is now at 50. s. the Impost of Wine was in antient time 3. s. 4. d. a Tun and now is foure Marks the lessening of custome and Impost is much to be guided by intelligence from forrain Nations for the usage and behaviour of a forrain Prince may impose a necessitie of raising custome of these Commodities and so it was in the particular of Currants the Duke of Venice Imposed upon them a ducket by the hundred which by the wisdom of the state was foreseen to be a means that in time will waste and consume the Treasure of the land whereupon the Queen writ to the Duke that he would abate his custome which he refused wherefore to prevent that so great a quantitie of this Commoditie should not be imported into the land the Queen granted to the company of Merchants of the Levant that none should bring in Currants but by their Licence and those Merchants Imposed upon them who did Import which were not of their company if he were denizen 5. s. if he were a stranger 10. s. and this was paid by the Merchants without contradiction but there was a clause in the Patent that when the Duke of Venice abated his Impost that the Patent should be void and after the Duke was Solicited again that he would abate the Impost but he refused and the first Commission was recalled and after a new grant was made which was executed all the Queens life time which was as aforesaid and whereas it is said that if the King may Impose he may Impose any quantitie what he pleases true it is that this is to be referred to the wisdom of the King who guideth all under God by his wisdom and this is not to be disputed by a subject and many things are left to his wisdome for the ordering of his power rather then his power shall be restrained the King may pardon any fellon but it may be objected that if he pardon one fellon he may pardon all to the damage of the Common-wealth and yet none will doubt but that is left to his wisdom and as the King may grant a Protection for one year so it may be said that he may grant it for many years which is a mischief and so ought to grant none which will not be denied but that he may so it may be said that the Queen may grant a safe conducted a stranger for if she may do that then she may grant to all which would be but then same to the inhabitants and yet it will not be denied but that she may grant to any or all as in her wisdome shall seem convenient and the wisdom and providence of the King is not to be disputed by the subject for by intendment they â—â—mot be severed from her person and to argue a posse ad actum to restrain the King and his power because that by his power he may do ill is no argument for a subject to prove the power of the King by presidents of antiquitie in a case of this nature may easily be done and if it were lawful in antient time it is lawful now for the authoritie of the King is not diminished and the Crown hath the same Attributes that then it had and in antient time such Imposts were never deuied and that which is given by Parliament is not an Impost but a subsidie in antient time small Traffick or intercourse was betwixt the inhabitants of this land and forrain Nations so that the principal custom was of the Commodities of this land which were Wolfels and Leather and that the custom for Wools was an Noble for a Sack was an imposition as it appears by the Statute of the 14. of Ed. 3. cap. 21. it is objected that Merchants cannot be restrained but only persons suspected as the writ of ne exeat Regnum is but as it is said in Dyer before cited it is without doubt that the cause is not Trasable and that the King may inhibit any man for if it be not Traversable it is not material and the reason wherefore any man may be restrained is for defence of the Realm and it may be done by privie Seal privie signet great Seal or Proclamation and that appears by the writ of licentia Transportandi in the Register which containeth licence for one to Travail and limits him to what place he shall go and when he shall return and with what goods that the King may prohibit body and goods and when a man is beyond the Seas the King may command him to return and if be doth not obey such command he shall forfeit his good now 〈◊〉 restraint of commodities many presidents are to prove it in the time of H. 3. and E. 1. it was forbidden that no Wooll should be Transported into Flanders and in E. 1. a Comuâ—â—ssion was awarded to inquire who had done against this ordinance and the goods of one Freeston were seised therefore an Attachment awarded against the Ships of Hull for Transporting contrary to the ordinance in the 22. E. 1. there it was forbidden that no Merchant should Trade with France for Trade with forrainers is a forrain thing which is only referred to the King in the 17. H. 6. all Merchants were forbidden to import wares from Flanders into this land and the Cittizens of London complained of certain Merchants which had done contrary to this ordinance to the Lords of the privie Councel which I have here ready for the Record mentions it and the Kings Attorney was commanded to exhibit an information against the Merchants which he did and they pleaded that the Proclamation was made here upon Easter Eve and that they were then at Bruges and upon the Wednesday after Bruges Market they bought the wares before notice of the Proclamation and before it were possible that they could have notice of it and pray judgement c. and so much for restraint of the person and goods by the Statute of 31. E. 3. Cap. 8. times were appointed in which Wools should be Transported and also Cap. 9. Authoritie was given to the Chancellor and Treasurer to defer the passage at their pleasure but that this was the Common Law and that the King by his supream Authoritie might do it
they ought to joyn in every action to which the wife is intitled before marriage but otherwise it is here as he thought and as to that which hath been said that the declaration ought to have been special viz. per quod consortium amisit uxoris suae it seems that shall be necessarily intended without shewing of it in the declaration but in the case put by Altham if a man bring an action of false imprisonment of his servant he need not shew whereby he lost his service c. because peradventure he had no imployment for him this is good Law by him but otherwise it is in the case of a wife but yet he would be advised thereof as of a thing not mentioned before Altham Baron it may be intended that the husband was also imprisoned with his wife and so did not lose her company except it be shewed to the contrary aswel as it may be intended the Master had no imployment for his servant and after at the next Term Tanfield and Altham Barons agreed that the Declaration ought to be special as Altham Baron conceived or otherwise the wife ought to have joyned in the action which had been better for they said that in all cases where the action is brought for such a matter for which the wife by possibility might have an action after the death of her husband there they ought to joyn and for this false imprisonment the wife may have an action after the death of her husband and therefore they ought to joyn here Snig and Bromley Barons seemed prima facie that the action lies well enough when they joyn or when the husband alone bringeth it and they vouched and Doillies Councel said that they have heard it to be adjudged in the Kings Benth 28. Eliz. in one Cholmlies case and 35. Eliz. in the Common Pleas that an action lieth for the husband alone for a battery made to his wife and so they conceived it good if they joyn or sever in the action and therefore it was appointed that the next Term the presidents should be shewed and the case to be argued as to this point Note that Doillie perceiving the Law against him for this last point or matter because his wife did not joyn commenced his action of new in this Court and this was in Trespas for the beating and imprisoning his wife and in this case the husband and wife joyned and declared to the damage of the husband and wife and the like Plea was pleaded in Bar as was in the other action and the record thereof was read in Court Termino Pasch 9. Iac. and then adjourned and after it was adjudged for the Plantiff Wikes by English Bill in the Exchequer Chamber Trin. 7. Jac. IN the Exchequer Chamber by English Bill this case was depending and argued before all the Barons at Serjeants Inne in Fleetstreet viz. the King exhibited an Information against Wikes for entering into divers parcels of land and Wikes prétending that he had good equitie prayed his relief by English Bill in the Exchequer Chamber and the case upon the said Bill was this Graunt made a lease for years to one Somerfield and Iohn Wintor in Trust and for the benefit of the wife and Children of the lessor rendring rent and after Wintor one of the Lessees and also Graunt who was the Lessor were attainted of the Gunpowder Treason and Wikes married the wife of the Lessor and entred and upon this information he prayed relief in behalf of his wife and Children by this English Bill and first it was agreed by all the Barons that the King by the course of the Common Law had the moitie of the land and no more by the attainder of Wintor and that Somerfield the other Lessee shall be Tenant in common with the King but what remedy he should have if the King took all the profits they agreed not Secondly they agreed by the admittance of Wikes his Councel that the King as to the moity which came to him shall not be ordered in equity to perform the trust reposed in Wintor for the wife of the Lessor for the King cannot be seised to another mans use no more can his estate be subject to any trust at this day as the Attorney general had said clearly which the Court granted but Brock of Councel with Wikes seemed not to be satisfied but that the King ought to execute such trust by equity but Tanfield chief Baron said that before me at another day you were content to be concluded as to this point that there is no equity against the King Thirdly it was debated if in this case the King should have the other moity which was in Somerfield by equity for clearly if the lease had been made in trust for the benefit of the Lessor himself the King should have it by his attainder and then what difference it being made for the benefit of the wife of the person attainted for her husband might have disposed of it being a trust only of a Chattel as he might have done of a Chattel whereof the wife was possessed and he might have wholly released this trust and by consiquence he might forfeit it by his attainder whereunto Snig and Altham Barons agreed and by Bromley his release shall binde but during his life the Attorney general said that he might release all Brock it should be mischievous that his release of this trust should bar the wife of her trust after her husbands death for admit that a man make a lease to A. to the use of his wife for 100. years if she shall so long live and this for a joynture for his wife can her husband prejudice her of this joynture by release of the trust as if he should say no and then à fortiori in the case here for the trust is for the wife and children and the trust for the children cannot be released by the father and consequently not forfeited by him by the Court there is no such Bill depending before us which demands any thing for the King and the Bill which is here exhibited by Wikes prayes nothing but one moity of the term viz. that which in Law belongs to Somerfield which moity by the Common Law we cannot take from him and therefore we will leave you to sue in the office of Pleas according to the course of the Common Law in the name of Somerfield and therefore they gave no resolution if by equity the husband shall forfeit a trust which he had for years in the right of his wife Sir Thomas Overburyes case was opened to be this viz. Robert Wintor was seised in see of six Bullaries at Wich and he covenanted to levy a fine of all his Bullaries and that for 4. of the said Bullaries this should be to the use of John Wintor in tail and for the other to the use of himself in fee with power of revocation and after the said Wintor levied a fine sur connizance de droit
Rot. 906. in the Common Pleas and this was upon a new and Collateral matter as our case is Trin. 20. H. 8. Rot. 247. or 2447. upon an Arbitrament pleaded and he vouched divers other precedents upon the same point Trin. 3. H. 8. 446. or 466. and 14 H. 8. Rot. and 11. H. 8. Rot. 446. and Mich. 31. H. 6. Rot. 141. and. Hill 33. H. 6. Nota that here it was admitted without any doubt that an Ejectione firmae lyeth of a Mannor although it was said at the Bar that Williams Iustice was of opinion to the contrary the last assises at Norwich and so by all Iudgement was entred for the Plaintiff immediately and a Writ of Error was brought but never prosecuted for the Countesse of Pembrook had day given to remove her goods out of the Mansion House and so she relinquished the possession of all the premisses as I heard Trespasse against Gibson and others VPon evidence to a Iury an Action of Trespass against Gibson and others it appears that the Defendant was Deputy to the Duke of Lenox upon his Patent of Vlnage and that by vertue thereof he pretended to make search of certaine Stuffs called new Drapery which the Plaintiff were carrying to London and at the Town of Ware two or three strangers affirming themselves to be servants of the said Gibson did unpack the said Drapery and laid it in the dirt whereby the Plaintifs were hindred of the sale c. And in this case it was agreed if they as Servants to Gibson without his precedent appointment doe seise the Plaintifs goods and the said Gibson approve them to be seised although his Servants without his consent abuse the goods yet Gibson shall be Trespasser ab initio Also they agreed without any scruple although that the first seisure of these goods be admitted to be lawfull as by the pretence or licence in Law yet the abusing of them makes the originall seisure to be wrongfull and trespass lyeth and therefore in this case although it were not proved that Gibson himself appointed or was privy to the misusing aforesaid yet he shall be charged in dammages and so he was for severall seisures in an Action to 32. pounds viz. 30. l. for one seisure and 2. l. for another seisure and so severall dammages for severall Trespasses in one Action and although that by the abusing of an Authority or licence in facto a man shall not be a Trespassor ab initio but an Action upon the Case lyeth yet for misusing of an Authority in Law Trespass lyeth ab initio for if he who hath power to seise Estrayes will labour the Estray a Trespas lyeth for the seising thereof Bagshews case Hill 4. Jacobi in the Kings Bench. Bromleys Case Hill 8. Jacobi in the Exchequer HUtton Serjeant came to the Bar and shewed that one Bromley had before this time made a Lease for years in County Palatine of Durham of certaine Cole-mines in that County rendring rent 100. l. per annum which rent is arreare for divers years and that Bromley became outlawed here in the Common Pleas for debt at the Suit of Cullamour a Merchant and that the King had granted this debt due upon this Lease for years as forfeited for outlawry unto him And Hutton for the Bishop said that it belongs to him because he had all the goods of men outlawed within his County and if this debt belongs to the King or the Bishop it was the doubt the party being outlawed in the County of Northumberland which is out of the County Palatine of Durham Tanfield chief Baron said that the debt shall follow the person and he said that in 21. Eliz. Vere and Jefferies case it was a question if debt upon a Bond shall be forfeited to him who had such a priviledge where the Bond is and he said that in this case it was resolved that he shall have the Bond and debt who had Bona utlagatorum where the Bond is and so it was resolved as he said in a Case referred out of the Realm of Ireland but here is a bebt which accrueth by reason of a reall contract of goods in the County Palatine and he who is Debtor is the party outlawed but not in the County Palatine of Durham And Hutton Serjeant said that he dad the Rolle of a Case in this Court in the time of E. 3 that the Bishop of Durham was allowed a debt in a more strong case then this is for there a Creditor was outlawed in London and his Bond was also in London and the Creditor was only an Inhabitant within the County Palatine yet the Bishop was allowed this debt Curia put in your Claime and we will allow that which is reasonable and it was adjourned Isabell Fortescues case VPon a motion it was shewed by Coventry that upon a penalty imposed upon Isabell Fortescue for her Recusancy and Inquisition issued and it was found by the Iury that the said Isabell was seised of no Lands but those mentioned in a Schedule to the Inquisition annexed and then expresseth divers particulars in the Schedule without expresse finding that she was seised of them this is no good Inquisition nor finding of any seisin by the whole Court And so by the Court where an Inquisition or Schedule saith that the said Isabell was seised of the Mannor of D. as by information this is not good cleerely for it may be she is seised without information but where it was shewed that upon this insufficient Inquisition divers summes of money were levied and paid into the Kings Coffers that this may be restored The Court answered it doth not appear but that the King may by a new Inquisition have this money justly therefore it shall not be delivered out of the Kings Coffers but if you mone good matter in equity to be discharged in your English Bill you shall have restitution c. Brockenburies case THe Kings Debtor suffered A. to manure his Land and therefore the Sheriff seised the goods of A. for this debt whereupon A. to the intent to have his goods again paid the Fees to the Sheriff and made a Bond to the King to pay the Summe due And now upon a motion and Affidavit that the Debtor himself had sufficient to satisfie the debt due it was ordered by the Court that the Fees taken by the Sheriff shall be restored to A. and that the Bond remaine in the Office here and if this debt can be levied of the lands or goods of the Debtor the Bond shall be delivered to A. but if it fall out that it cannot be levied of the Debtor then the King shall resort to A. upon this Bond and he shall have the assistance of this Court for his reliefe against the said Brokenbury the Debtor Robert Beckets case touching Recusancy RObert Backet seised of divers Lands in Fee in the County of Cornwall upon an Indictment in 28. Eliz. was convicted of Recusancy for 10. moneths next before and died
false the Patent is void although it hath these words Ex certa scientia et mero motu and so is 18. Eliz. Dyer 352. where the Patent was ex certa scientia et mero motu c. but there Dyer held that this falsitie in the matter of Recital did avoid the Patent notwithstanding the words ex mero motu c. but he held it otherwise if it were in a consideration which is faise for at that time the point of falsitie in matter of consideration for 100 l. to be paid although it be much contraverted in our Books and it seems in what place soever of the patent it appears that the King is mis-informed deceived in any matter material or concerning his own estate in the thing to be granted that that will dictate the Patent and therefore 17. Eliz. the Queen seised of the Mannor of D. grants all her purpartie of the Mannor of D. if in this case a Common person had granted by such words the Mannor had passed but in the Queens case it will be a void grant because a thing which she intended to pass cannot pass in such plight as she conceived it viz. as a purpartie and 36. Eliz. the Queen granted all her portion of Tithes c. although she had a Parsonage there yet it doth not pâ—â—s for this manner of Appellation implies that the Queen was mis-informed and not well instructed of the thing to be granted and therefore void see Cook lib. 4. in Bozuns case Ex certa scientia et mero motu c. doth not help it also if the King recite that whereas he had such land by the attainder of I. S. where in truth he had it not by his attainder now although that he grants this land Ex certa scientia et mero motu yet this will not pass but if the King be not deceived in the point of intitling himself but in the deducing of his title that will not prejudice the Patent as if the King recite that whereas I. S. had land by descent from his father and he grants it to the King and the King doth re-grant the same to I. S. this grant is good notwithstanding that I. S. had it not by descent from his father see the Lord Lovels case in Plowden that if the King be deceived only in the point of mis-conveyance the Law will not avoid the Patent as if be grant to one and his heirs born at D. the last words are void and the grant is good Pasch 42. Eliz. it was agreed that if the King be Tenant for life or years and makes a lease for one and twenty years this lease is void to all intents against the King because it appears not in the grant what estate the King had and by that lease the King conceived that he had power by his estate to make an absolute lease whereas legally his lease ought to determine by his death so by implication it is manifest that the King was not well instructed of his estate 39. Eliz. the Queen leased for twenty one years to begin whensoever the land should fall in possession by the expiration of any former lease then in being if in that case there were no precedent lease then in being this lease will be void for these words implie that the Queen conceived her former lease to be in being and so impliedly she is deceived in her intent in like manner in the principal case the Queen was deceived in her intention for the recital is that all the estate which Potter had is come to the Queen by surrender and in truth all the estate is not come unto her in respect of a mean estate to Wilkinson c. as to the second point it seems the consideration being that he did assume to new build implies asmuch as if he had said he faithfully promised and then it is all one as if it had been for that that he shall build for it is a consideration executory and is of value and then the not performance thereof vitiates the Patent and the estate was as if it had been by a limitation to cease and these words that he did assume upon himself cannot be construed to any other intent but unto an executory consideration because the King hath no remedy by way of Action for the breach of this promise and it cannot be conceived that the Covenant is satisfied in giving securitie for it is observable that the Covenant is but the ordinary Covenant viz. to repair and keep repaired and so a Trivial reparation will satisfie that but it appears that the Queens intent was not to make the lease for such a petty consideration because the Lessee had undertaken at his own charges to new build the Mills but the express Covenant doth not binde him to the new building of them and in 6. Eliz. the like lease was made of the Mannor of Lidlescourt to Customer Smith and the lease was for that that he assumed that he at his costs would c. and he avoided his lease upon a former lease made to A. of the premises and in truth the lease formerly made to A. was meerly void upon the making of this lease though perad venture the condition may be good and the consideration performed but the Queen was not well instructed of her title also in this case the lease to Hitchmore is not determined by a condition as it hath been objected but it ceaseth and is determined by a limitation and this may well enough revest in the Queen without entrie or office because it was but a Term and such words purporting an executory consideration in the Queens case implies as much as if in case of a Common person it had been said expresly to cease upon an act not performed for in the Kings case the Law speaketh and if so then the lease for years is void and the Patentee may enter without office and all considerations executory in leases made by the King amount to a conditional limitation and then he who will have benefit by such a lease ought to aver the performance of the consideration as if a man declare upon a lease made unto him c. if I. S. should so long live he ought to aver his life in the Declaration because it determines by limitation at his death but otherwise it is upon a condition if a Parson make a lease for years the Lessee must aver the life of the Parson because by his death the lease ends by a limitation implied but otherwise it should if it were upon condition for the performance of that needs not be averred but that ought to be shewed on the other part and so it seemeth that as wel for the point of falsitie in the recital as also in the not performing of the consideration that the lease is void and the Plantiffe should have judgement which was entred accordingly Snig Baron was of opmion against all the other Barons and he held that
the letters Patents is not material for he said it seemed to him that in rei veritate the particular estate cannot be sufficiently surrendred by this bare giving up of the letters Patents by the Tenant for life as it appears by Walshes Case cited in Altonwoods Case Cook lib. 1. and therefore he insisted not upon that Secondly he argued that a recital in the Kings Patents of a thing material if it be false and come by information of the partie is all one as a false Consideration and not otherwise and he said that it appears by Brook tit Patents pla 100. that all Considerations valuable although they are false do not avoid a Patent as where the King grants lands prodecem libris sibi solutis although that in facto this is false yet the grant is good also it appears by 26. H. 8. and Sir Thomas Wrothes Case and by 21. E. 4 fol. 48. that a consideration executed avoideth not a grant although it be false but he said that it appears by the Case of 18. Eliz. Dyer 352. that if the King make a lease in Consideration of a surrender of a precedent lease which in truth was void by some that the King may avoid the lease but others contrary because it was not done upon the suggestion of the partie but for a consideration executed and the surrender of the estate precedent was the material cause and consideration of the grant and he said that although in this Case there be not a good surrender of the letters Patents yet the Consideration being only the surrendring of the estate that is not material for as it is said in Altonwoods Case Cook lib. 1. if the King in Consideration only of the surrender of precedent Patents makes a grant in this Case there needs no averment of an estate for the surrender is not material of the letters Patents Also it appears Cholmleys Case Cook lib. 2. that if the King recite an estate to be made with Condition although that at the same time of the recital this is not Conditional yet if once this were Conditional the King is not deceived although the condition be now released and he cited also the Lord Chandos Case Cook lib. 6. where it appears that if the King recite a thing untruly which cometh not of the information of the partie this shall not hurt the Grant except it be part of the consideration and he said that Harris and Wings Case differs from this Case for there the King had a Tenant who held a Tenement by the yearly rent of six pounds and another Tenement of him by the yearly rent of nineteen pounds and he made a new lease of both those to the said Tenant without any recital of the former leases reserving but Nineteen pounds for both and there it was adjudged that the second lease was not good but he said that the reason of that judgement was not because the antient lease was not recited but by reason that a loss in the rent came to the King and so by intendment he was deceived and this was also upon the matter the reason of the resolution of Barwicks Case and also in Mack-Williams Case for there was not a surrender of the estate as the King intended which ought to be but in our Case the estate is well surrendred clearly and he thought that these words modo habens may well stand with the Kings intent aswel to a surrender in Law as to an actual surrender The Attorney generall to the contrary First for the recital that the information of the partie was that the King should have an actual surrender and so was the Kings intent collected upon the information of the partie Secondly that here is not any actual surrender Thirdly that by consequence it followeth that the Queen is deceived Fourthly here is no surrender in Law in this Case Fifthly although here were a surrender in Law yet that is not sufficient to make the grant good to the first point be said that alwayes a familiar construction ought to be made of the Kings grants and therefore if the King grant all his portion of Tithes in D. this doth not pass his Parsonage in D. although he had no other Tithes there so if the King grant all his Titheable lands within the Mannor of B. although the lands of Coppiholders are parcel of the demeasnes of the Mannor of B. yet these lands in such Case do not pass Cook lib. 1. Bozuns Case and Cook lib. 1. Altonwoods Case fo 46. aâ—so it appears by the pleading in Plowden in Wrothesleys case and in Adams case and also in Fulmerstons case that although the antient particular estate be gone in Law by the acceptance of a new estate yet it ought not to be pleaded as a surrender and therefore it shall not be construed that the King intended such a surrender which pleaders in their pleading do not accompt a surrender also he said that in regard that the Queen saith quam quidem sursum redditionem acceptamus it seems by that that she did not intend a surrender in Law and therefore accepted nothing but gave an estate c. and must be meant such a surrender to which she is partie by her acceptance also where the words are modo habens et gaudens and therefore it is inferred that the Queen intended an estate containing in the Patentee this is true for although that the Queen intended an actual surrender precedent to be made by the Patentee yet his estate continues against the Queen untill an acceptance of a surrender by her although also this may be called a surrender like unto a surrender of a benefice untill an acceptance by the ordinary also although it was found that the Queen made a new lease or letters Patents of the said Land to the said Lord Seymor yet it appears not that the new letters Patents were accepted by the Lord Seymor until a moneth after the making of them when he made a lease to Johnson and until that time without question there was no surrender either in fact or in Law and where it hath been objected that these words modo habens implie only the present time he said that the word modo will alwayes signifie such a time as the Verb with which it is joyned will signifie and therefore Cicero saith modo hoc malum in hanc Rempublicam invasit also the words Jam et nunc are of such signification as this word modo is and these words are alwayes governed by the Verb as Jam venit c. so in the Bible the story of Naaman and Gehesey Jam modo venerunt duo behold two young men are come to me c. and as to the second point it is clear that here is not any actual surrender for the King cannot take by an actual surrender without matter of Record And therefore it was holden in the Lord Stanleys Case that the King took nothing although his officers by his command did
and there bought Currants and imported them into England and he recited the Statute of the first of King James cap. 33. which grants 2. s. 6. d. for Poundage and he said that he had paid that and therefore he had refused to pay the 5. s. because it was imposed unjustly and unduly against the Lawes of the land whereupon the Kings Attorney demurred in Law this matter had been divers times argued at the Bar and at the Bench by Snig and Savil Barons and now by Clark and Flemming chief Baton whose arguments I only heard and Clark who argued first this day said that this Case being of so great consequence great respect and consideration is to be had and it seemeth to me strange that any subjects would contend with the King in this high point of Prerogative but such is the Kings grace that he had shewed his intent to be that this matter shall be disputed and adjudged by us according to the antient Law and custome of the Realm and because that the judgement of this matter cannot be well directed by any learning delivered in our Books of Law the best directions herein are presedents of antiquitie and the course of this Court wherein all actions of this nature are to be judged and the Acts of Parliament recited in arguments of this Case prove nothing to this purpose the best case in Law is the Case of Mines in Mr. Plowden Com. where this ground is put that the precedents of every Court ought to be a direction to that Court to judge of matters which are aptly determinable therein as in the Kings Bench for matters of the Crown in the Common Pleas for matters of inheritance and Civil contracts and in the Exchequer for matters of the Kings Prerogative his revenues and government and as it is not a Kingdome without subjects and government so he is not a King without revenues for without them he cannot preserve his dominions in peace he cannot maintain war nor reward his servants according to the state and honor of a King and the revenue of the Crown is the very essential part of the Crown and he who rendeth that from the King pulleth also his Crown from his head for it cannot be separated from the Crown and such great Prerogatives of the Crown without which it cannot be ought not to be disputed and in these cases of Prerogative the judgement shall not be according to the rules of the Common Law but according to the Presidents of this Court wherein these matters are disputable and determinable as for Example an action of accompt lies not by the Common Law against him who had the land of the accomptant by mean conveyance but if one be an accomptant to the King and had land in fee and alien it unto A. who alien it unto B. B. by reason of this land shall be charged with this accompt in 14. E. 3. a Coroner was elected by the Kings writ as he ought to be by the Countie and after be was amerced and because he was not sufficient to answer the Amercement the Countie was charged therewith and that appears of Record here and in 30. E. 3. Rot. 6. as appears also of Record in this Court one William Porter was Magister monetae and had received Bullien of divers Merchants and Coyned it in the Kings Mint and did not restore the Coyne to the Merchants but was insufficient and the King paid the Merchants and inquired of the suerties for the Coyne and it was found that he had none then it was inquired who recommended him unto the King and it was found by whom he was recommended and they who only recommended him as friends were charged with the Debt and if one be outlawed in a personal action and Debt is due to him upon a contract this shall be forfeited to the King and this is ordinary by the Presidents of this Court and yet this seems to be contrary to Law and is against our Books and the Kings Debtor shall have a quo minus against Executors upon a simple contract and therein he cannot release nor be non-suited and I put these cases to prove that the presidents of this Court ought to be pursued and observed although they seem to cross the Common Law and the Books thereof a case was here betwixt the King and Jourden Jourden was receiver and sold his office to one D. and he not being able to pay Jourden for his office at the day limited it was agreed that Jourden should come to the next receipt and when D. received the Kings money that Jourden should take it for his office which was done accordingly after D. was indebted to the King and this matter appearing as above c. Jourden was charged with the money which he had received and as Stamford in his first cap. of Prerogative saith that the King is the most worthy part of a Common-wealth so is he the preserver nourisher and defender of the people and true it is that the weal of the King is the publick weal of the people and he for his pleasure may a forrest the word of any subject and he thereby shall be subject to the Law of the Forrest and be may take the provision of any man by his Purvieour for his own use but at reasonable prizes and without abuse the abuse of which officer hath been restrained by divers Statutes and the King may take wines for his provision and also Timber for his Ships Castles or houses in the wood of any man and this is for publick benefit and the King may allay or inhaunce Coyne at his pleasure for the plentie of the King is the peoples peace and these imposts are not only for the benefit of the people and for the Kings profit but are also imposed many times for the increase of Merchandise and Commerce as the Statute of Aulnageors made in the 2. E. 3. cap. 14. which was made principally to make cloathes more Vendible and so Corporations are granted by the King with immunities and priviledges and to seclude other subjects from them are well limited and good for it is for the increase of the peoples wealth and thereby the Kings revenue is increased and sometimes there is contained in grants a Prohibition to other subjects that they usury not upon the priviledges of such Corporations upon a pain as in the custome of Forraign bought and Forraign sold in London and York and divers customes are permitted to such Corporations as in the Chamberlain of Londons Case Cook 5. and the breach or violation of these customes is a decay of the Corporations and so an impairing of the revenues of the Crown and therefore the King may make them and also give them priviledges and make inhibitions to others not to Vsurp upon them King Edward the third in the sixteenth year of his Raign proclaimed that no man should sell Wool-fels or Leather under such a price so that these staple commodities might not be
to commit a contempt by his refusing to return and so to save his lands by this conveyance in respect this countermand is a thing whereof he could not have divined to that I answer that the contempt subsequent is a sufficient proof of such precedent conjecture and that the conveyance was made fraudulently to prevent the prejudice which might accrew unto him by such contempt and this opinion will appear by the makers of the Statute of 13. Eliz. cap. 3. and 14. Eliz. cap. 6. made against fugitives and may well be collected upon the perusal of those Statutes and that the Iudges here ought to make such construction upon the subsequent Act he vouched the case of Doctor Ellis in Plowden and Saunders case in the matters of the Crown happening at Salop by which cases it appeareth that the Iudges proved the first intent by secondary Actions subsequent by way of discourse and therefore in Saunders case the partie having an express intent to poyson his wife delivered unto her a poysoned apple and the wife not knowing it to be poysoned gave it to her child who died thereof there the indictment against Saunders was that of malice forethought c. he intended to murder the child although this was not his first intention so in the other case there cited if a man intend only the death of A. and being fighting with him be a stranger interposeth himself to part the affray and he is slain this is wilful murder although here was no primer intent to kill B. but this is made an intention by legal collection and so in our case here is intentio Jegalis and not actualis and yet aswel unavoidable as any other also although it hath been objected that by the common Law none shall avoid a conveyance by reason of fraud except he who hath a former interest and the Statutes give no authoritie to any but to purchasors upon valuable consideration yet I say that the Statute of 13. Eliz. is to avoid all fraudulent conveyances against such as by any means may be hindred thereby yet the intention was not to defraud the partie who is thereby defrauded but some other and therefore although it was not to defraud the King in our case yet being fraudulent it is void against him by this Statute for he should be hindred thereby also the proviso in this Statute saveth such conveyances only which are upon good consideration and bona fide and that is such wherein simple and plain dealing are used but in this conveyance there was not any simple and plain dealing used for the Bargainees paid no money nor ought to take no profits of the land nor dispose of any estate therein and therefore fraud for Dolus est Machinatio cum aliud dissimulat aliud agit also the preamble of the Statute of the 27. Eliz. willeth that conveyances shall be void which are made to the use of him who maketh the conveyance or otherwise to defraud purchasors although that the body of the Act mentioneth such only which are to defraud purchasors and he vouched the Statute of the 28. Eliz. made against couveyances by resumption and he said that Twines case in Cook lib. 3. proveth our case effectually to be a void conveyance which cannot be answered but the Lord Treasurer said that there was fraud in both parties and he argued further and vouched Goodales case Cook lib. 5. to prove that a Deed shall not be deemed to be good except it be free from all fraud or clandestine agreement as it was there resolved that the payment for performance of a condition was not good as to strangers by reason of a precedent agreement and Burrels case Cook lib. 6. where it appeareth that no fraud shall be accounted bona fide as to strangers which is accompanied with trust c. also although here is not any fraud expresly found by the office yet he thought that the equity of the case appears plainly and that it shall be for the King and he vouched divers decrees in this Court to prove it as 43. Eliz. Howse was outlawed and took divers bonds of Carne in the names of others his friends viz. of Marlow and others in trust also took Statutes in their names in trust and it was decreed here that the King should have all vy reason of the fraud although it be not found by any office and in Hoards case it was decreed here that whereas the said Hoard betwixt the years of 25. and 32. had sent divers summes of money to Sheldon of Bealie and had taken divers obligations and other securities of him in others names before his conviction yet it was decreed to the King in this Court without any fraud found by office and in Sir Walter Raughlies case the same year decreed in this Court that whereas Sir Walter Raughlie being possessed of a tearm of 100. years of _____ he having a determination to purchase the reversion in fee of the same land conveyed his Tearm to his eldest son to the intent it should not be drowned and therefore about 40. Eliz. he purchased the fee and after in the year c. of our King that now is he committed Treason and was attainted and it was decreed here that the King should have the land discharged of this lease viz. in possession and although no fraud be found in the case but only it appeareth by circumstances of witnesses here examined that Sir Walter Raughley took the profits of the laud and held Courts in his own name until the attainder yet the said assignment was conceived to be in trust and therefore decreed to be void against the King as for fraud although he was convicted of Treason a long time after and so the Kings title subsequent to the said assignment and he vouched Walter de Chirtons case in 24. E. 3. Rot. 4. also as to Mr. Wardenfords case in 2. and 3. Eliz. Dyer 193. and the 9 and 10. of Eliz Dyer 267. but our case is different from them in two material circumstances which alter the law in the cases First we are in a Court of equitie by English Bill where the Iudges are only to adjudge upon the fraud and there they were in a Court of Law and the fraud was the matter of fact which ought to be expressy found by the Iury as appears by the books Secondly in that case the Iury found expressy that the conveyance was not by fraud to deceive the King of his wardship but only to deceive the Creditors c. but in-our case there is no such negative and therefore it differeth much see Dyer 267. and 268. as to the finding in the negative at another day in the same Term of Easter 7. Jac. the Barons decreed for the King and the Lord Treasurer agreed and he then demanded of Tanfield chief Baron if upon the return of Sir Robert Dudley he ought to have his lands again of right or if but upon special grace and the Lord chief
without deed is not aided by a good assurance a surrender without deed is aided within the Statute or else the Statute should serve for little or nothing the Statute of confirmations of letters Patents hath the same words That the Statute of 43. Eliz. hath and upon 18. Eliz. it was resolved in 27. of Eliz. in Husseys case that if Tenant in tail be and the reversion is granted to Queen Eliz. this is good and aided by the Statute so if a man grant lands to the King but the Deed is not inrolled this also is aided by the Statute and where a grant shall be good at the Common Law by a Commonperson there the like grant made by the King is made good by the Statute and there was a case in the Dutchy Chamber Trin. 37. Eliz. between Cavendish and Bateman where the Queen did grant Turbary within the Mannor of Lady Meadows within the Countie of Darby unto Bateman for 21. years Bateman thereof makes a meadow and afterwards the Queen in consideration of the surrender of the first grant doth grant the same unto him for 40. years by the name of a meadow and although he made no surrender yet by the taking of the grant it was resolved that it was a good surrender because there it was but of a particular estate but otherwise if should be of fee for a fee cannot be surrendered by implication Dodderidge Serjeant of the King argued that the Defendant is guiltie of intrusion and he divided the case into two parts only the first whether there be a sufficient consideration at the Common Law to make the second Patent void the second point admitting that there is not a sufficient consideration by the rule of the Common Law whether the defect thereof be aided by the Statute of 43. Eliz. and he argued that the surrender which the Queen intended to be the consideration of the grant was an actual surrender alreadie perfected before the grant which doth plainly appear to be so as he took it by the word sursum redditionem and he said that he could not so have that word in the Preterperfect Tense as it would be supplied by an act of the Present Tente as is pretended viz. that the surrender is to be made by the acceptance of a new grant and he vouched 35. H. 6. also he thought her to intend an actual surrender for an other reason viz. for the words nobis sursum reddidit et restituit cancellandum the which cannot be performed without an actual surrender for otherwise there is no restoring and he vouched 18. Eliz. fo 437. 43. E. 3. fo 19. where it is observed that if a wife do not remain with an Adulterer with her own accord c. another reason the Queen did intend an actual surrender because of the words ea intentione which implie a surrender to have been actually precedent another reason was for that hereby the acceptance of the second Patent there is no surrender wrought of the former estate in the Law until after the acceptance of the second letters Patents and so the Queen deceived in the time and he vouched the case of Totnes in 40. Eliz. in the Kings Bench and Savages case in 9. H. 8. Carrels Rep. fo 195. and here it appeareth there was no surrender upon record precedent unto the second grant also it ought to have been found by a special verdict that the second letters Patents were granted at the suit of Seymor or otherwise the granting of them to him makes no surrender of his former letters Patents and then it follows that they are not surrendred yet And where it hath been objected that the Queen useth these words in the second letters Patents quas quidem litteras patentes praedictus Seymor modo habens et gaudens and therefore it must be intended she takes notice that the first letters Patents were not yet surrendred for then she would not say modo habens et gaudens he answered that this word modo signifieth the time passed or the time presently for to pass and the word habens cannot be taken in a legal sense no otherwise then the word being is taken in Dockwrais case 27. H. 8. fo 19. and so these words modo habens et gaudens signifie no more but that one he had an estate also the Queen is deceived in this word acceptamus for she cannot in the Law be said to accept of that which by the Law is not vested in her also he said that an actual surrender ought to be an actual giving up of so much as the Patentees received of her grant as it appears 14. H. 8.21 E. 3. Brook Prerogative 90.7 E. 6. Dyer Sir Maurice Barklies case 2. Eliz. 159. Sir Ralph Sadlers case that a duplicat is not sufficient if the letters Patents be surrendred and cancelled 3. Eliz. Dyer 195. and he said that the surrender which the Queen intended ought to pass an estate from the partie surrendring which is not so done here and where it hath been objected that the very delivery in the Court made of the letters Patents is a surrender of them by the opinion of Davers in 37. H. 6. fo 10. he said that this book was no Law as it may appear 12. H. 7. fo 12. Carrels Reports although in that book also Vavasour agreeth with Davers and where it hath been objected that here is an actual surrender made yet the intention of the Queen ought to be observed to make it an effectual surrender or otherwise though she hath no loss by the surrender that is made yet is it no effectual surrender as appears by 18. Eliz. Dyer 352. and so also was the case of the Isle of Man also Sir Henry Seymor did not in this case all that he might have done for the perfecting of this surrender for he ought to have seen this his surrender recorded as it appears by the book case of the 11. H. 4. where it appeareth that if I be bound to levie a fine I ought to sue forth a writ of covenant or dedimus potestatem and do all such other acts as it may make it a good and perfect fine in Law Secondly he took it that the Statute of 43. Eliz. did no whit aid this case for that makes no surrender to the Queen to be a good surrender but only an actual surrender which here is wanting and the Statute in no sort extendeth to a surrender in the Law for the surrender which this Statute intendeth to aid ought to be a surrender conveying and assuring c. and this surrender in the law conveyeth nothing but only extinguisheth and for that purpose he put this case if A. take a new lease of the Queen in 27. by indenture and this is of his own land this Statute of 43. Eliz. doth not make such a kind of conveyance in the Law by Estoppel good to vest the land in the Queen by this Estoppel which is a conveyance in the Law unto
the which the Lord chief Baron Tanfield said insist not upon a labour of that kinde for it is plain enough because the Queen being partie there can be no Estoppel as to any part in that case also as to that part of his argument Mr. Walter agreed on the other side and also he said that if a grant of the Queeen were void at the Common Law for default of want of consideration this Statute aids not Walter for the Defendant and he divided the case into foure points the first whether the Tenant for life by the Kings guift by surrendring his letters Patents hath also surrendred his estate Secondly if the surrender in this case made be defective only for want of matter of circumstance as the inrolment c. whether such defects are saved by the Statute 43. Eliz. Thirdly whether in this case an actual surrender be the consideration meerly which moveth the Queen to grant or what shall be intended the consideration in this case Fourthly admitting that an actual surrender is the sole consideration in this case then whether a Patent shall be adjudg'd void for default of such consideration for a false consideration doth not avoid a Patent but a false surmise doth first when the Kings Tenant for life doth surrender or give up his Patent although without deed yet with such circumstances as the law requireth the surrender is good for although a surrender of letters Patents made by the Kings Tenant in tail will not make estate tail void or determine as it appears by the book case of 35. H. 8. title surrender and Cook 6. the Lord Chandos case yet the bare giving up of the letters Patents by a Tenant for life is a surrender of his estate so here in this case is some proportion between a Tenant for life of the Queen and a Tenant for life of a Common person to amount to a surrender and therefore it appeareth by 43. E. 3. that a Tenant for life may surrender without deed and without livery and from the land but a Tenant in tail may not do so also if a Common person hath a rent or other thing which cannot pass but by deed yet a surrender of such a rent shall be good by a bare deliverie up of the deed if he hath but an estate for life in the Rent and this also although it be but to the disseissor of the land out of which c. the same Law he took it of a particular Tenant for life of years also 32. H. 8. Brook Patents 97. it is made a doubt whether the estate tail of the Kings Donee be determined and gone by surrendring of the letters Patent and he referred that if thought worthy of a doubt whether it should be a good surrender of an estate tail they would hade held it clearly a surrender for an estate for life and it was admitted 3. Eli 2. Dyer fo 193. Mack-Williams case that if in the principal case if a Vacat or cancellation had been the surrender had been good actually without question and Sir Maurice Barkleys case cited on the other part proves the same also for there it is admitted that if the letters Patents had been given up there had been a perfect surrender And 40. H. 3. fol. 5. Belknap held that a surrender may be by word which is to be intended by giving up the Patent and that appears by Rolfs case in Dyer that a voluntary surrender needs no Conftat also where it hath been objected that the special verdict in this case hath not found in what Court the surrender was made he answered that the Law shall intend it to be made in the same Court from whence the letters Patents did issue for a surrender cannot be good being made in another Court and therefore it must needs be intended the same Court and he vouched 11. Ed. 3. fo 1. and 18. Eliz. Plinies Case and Covel and Cabels Case in Banco Regis 38. Eliz. wherein a special verdict it was holden that all things necessary for the perfecting of that the Iury hath found to be done must be necessarily intended concurrent Secondly the want of circumstances in a surrender are perfected and supplied by the Statute of 43. Eliz. for although matters of substance are not aided within this Statute yet matters of circumstances are aided And he said that all the defects in this Case are matters of circumstance and to prove that the defects in this Case are only in circumstance he said that there are three principal defects in conveyances which are meerly matters of circumstance and aided within this Statute the first is meerly want of form in a conveyance and that such a defect is aided he cited Hussies Case to be adjudged accordingly the second is where words are wanting in a conveyance and that such a conveyance is aided by this Statute he cited the opinion of Popham and Gawdy in 44. Eliz. in a cause depending in the Chancery the third matter of circumstance is where there is want of some matter concerning the executing of an estate and that such defect is only matter of circumstance and aided within this Statute he cited Morley and Whartons Case to be adjudged 7. Eliz. in the Common Pleas that the default of not inrolling is aided by this Statute and Mack-Williams and Kemps Case cited in Dyer before proves this to be but matter of circumstance and for that he thought the surrender in the principal Case wanting nothing but inrolment is aided by this Statute also in the argument of the second point he shews what defects in conveyances should be accompted matter of substance and so not aided by this Statute of 43. Eliz. and to this purpose he held that all disabilities of the person in a grant is matter of substance and so not aided within this Statute and he cited Twynes Case 32. Eliz. in the Exchequer to be accordingly Secondly he held that the nature of an assurance is not aided by this Statute and therefore if a man hath power to grant an estate by fine and he doth it by Deed this is not aided by the Statute for this is defective in matter of substance and he cited Wisemans Case and Sir Hugh Cholmleys Case in Cook l. 2. also he said if a man give land to the King and his heirs to have ten years after such grant this is not made good by the Statute Thirdly whereas it may be Collected that because it is found in the special verdict that an actual surrender was the cause which moved the Queen to grant or that it appears to be the cause he held that no consideration plainly appeareth but only by relation to a consideration before mentioned and he said that these words used by the Queen viz. modo habens et gaudens shew that the Queen took notice the state was still injoyed notwithstanding the delivery up of the letters Patents and therefore it cannot be intended by the verdict that the Queen intended
but another person cannot be presented to this benefice during the continuance of the first institution see Cook lib. 4. in Digbies Case fol. 79. that the institution to a second benefice is a present avoydance of the first Saint Saviours in Southwark in an Information IN an Information of intrusion against A. and B. the Defendants claim and justifie by force of a lease made unto them by the Queen of the Rectory of Saint Saviours in Southwark in the year 33. Eliz. and the truth of the Case was that the Church-wardens of the Church of Saint Saviours and their successors were incorporated by letters Patents in which Patents it was contained that the Parishioners or the greater number of them every year should elect two Church-wardens and that the said Church-wardens and their successors are a Corporation capable to take purchase and sell and after the said Charter so made in regard of the great number of the Parishioners of the said Parish the Bishop of the Diocess made an order that the Parishioners should appoint a certain number of the said Parish to be called Vestrie men the which Vestrie men should have the election of the Church-wardens from time to time for and in the name of the whole Parish and after it was used that the said Vestrie men elected the Church-wardens accordingly for a long time and that A. and B. being so elected the Queen Anno 33. Eliz. made a lease to them for years by the name of A. and B. Church-wardens of the Parish of Saint Saviours c. and their successors rendring rent and this appearing to be the Case upon evidence to the jury the Barons moved two points First if the election made by the Vestrie men were a good election to make them a Corporation capable to purchase within the intent of the Kings Charter in so much that saith that they shall be elected by the greater number of the Parishioners and here but a small number that is the Vestrie elected them and as to that it seems by the Barons that in regard it was not given in evidence that others of the Parish to a great number did withstand or gain-say the said election or nomination it being made at a day usual and place certain and therefore all the Parishioners by intendment were knowing of it or might by intendment of Law have been present at the said election it being in an open place where every Parishioner might make resort and did not therefore it was held that this election was as good as if all the Parishioners had met and elected them for it were hard in Law if the election by these that are present should not be good when the residue are wilfully absent and therefore Tanfield chief Baron cited a Case where the King did grant that the Parishioners of Wallingford should be a corporation to bargain and sell and that the greater number of the Parishioners there did make leases and estates and there was an usage that at the time of meeting for the making of any such leases by them they did use to Ring a bell by the which notice was intended to be given of the assembly and that after such Bell rung 20. of the Parishioners then present did make a lease there being 100. others in the Parish not present and yet this was adjudged in the Court 32. Eliz. to be a good lease and he said that if there be a day and place by usage certain for their meeting in such case there needeth no warning and therefore in the principal case the election was good but as for any order made by the Bishop that had been of no force to this purpose Secondly it was moved that although this were not good to make them Church-wardens within the intent of the Kings Charter of Corporations yet that this lease made by the King should amount to make them a Corporation and to a lease unto them also that being by intendment for the benefit of the King inasmuch as a rent is reserved like as when the King makes a lease to the honest men of Islington rendring rent but unto this Tanfield the chief Baron said that he held that this lease should not make a corporation where the King conceived that there was no corporation before but that the King should rather be said to be deceived for he took a difference where there is a reputed Corporation in being and where there is not and thereupon the Barons directed the Iury to give a general verdict In this case it was agreed by the Barons that if the King make a lease for years to A. and after he makes a lease of the same land to A. for more years this second lease is meerly void and therefore the acceptance of it shall not cause a surrender of the other lease and they said that it was holden accordingly in Harris and Wings Case see Plowden Fulmerston and Stewards Case in which case the second lease was one good although it was void after by relation It was held for Law that if a man do make a feosment to A. to the use of B. for the life of C. and that if B. and C. die then the remainder over this is a Contingent remainder by Borastons Case in Cook lib. 3. and also by Colthirsts Case in Plowden It was also held that if a man doth in consideration that his son shall marry the daughter of B. covenant to stand seised to the use of his son for life and after to the use of other his sons in reversion or remainder these uses thus limited in remainder are fraudulent against a putchaser though the first be upon good consideration viz. for marriage also it was holden though the consideration of marriage be a good consideration yet if a power of revocation be annexed to it it is void as unto strangers By Standon and Bullocks Case cited in Twins Case Cook lib. 3. if a man reserved a power of revocation by assent of a stranger this is fraudulent but if there be a consideration to be paid before the revocation it is otherwise Mich. 4. Jac. in the Exchequer An Information against Bates Mich. 4. Jac. in the Exchequer AN Information was exhibited against Bates a Merchant of the levant and it was recited that the King by his letters Patents under the great Seal had commanded his Treasurer that he command the customers and receivers that they should ask and receive of every Merchant denizen who brings within any Port within his dominions any Currants five shillings a hundred for impost above two shillings and six pence which was the Poundage by the Statute of every hundred and it was alledged that Bates had notice thereof and that he had brought in Currants into the Port of London and refused to pay the said 5. s. in contempt of the King whereunto Bates came and said that he is an English Merchant and an venturer and a denizen and that he made a voyage to Venice