Attorney General v Bushopp and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1600 |
| Date | 01 January 1600 |
| Court | Court of the King's Bench |
English Reports Citation: 76 E.R. 89
King's Bench Division
Followed, Corporation of Yarmouth v. Simmons, 1878, 10 Ch. D. 528.
S. C. 2 And. 154. Jenk. Cent. 251. Mo. 413. S. C. cited acc. Hob. 230. 10 Co. 68 a. S. C. cited acc. 1 Mod. 196. 1 Ld. Raym. 50. 296. 298. 302. 2 Salk. 561. 2 T. R. 537. 558. 560, 561, 562, 563. 3 T. R. 212. (a). 1 Mo. C. P. Rep. 446. 449. 1 Hale, P. C. 254. 1 Inst. ii. 606 (A). Shep. Touch. 76. 99. 111. 248. 268. 287. Gilb. Ten. 312. 1 Bl. Com. 89. 5 Cru. Dig. 23. 50. 54. 60. Watk. Desc. 2d edit. 223. 3 Prest. Conv. 240. Vin. Abr. Almoner (A). pl. 2. Estate (Z). Pl. 2. (A a). pl. 7. (I b). pl. 2. Fictions (A). pl. 2. 4. Fractions (B). pl. 3. Grant (G a 2). pl. 6. Manor (C 2). pl. 2. Merger (E). pl. 1. Office or Inquisition (D.) pl. 6. Prerogative (G. b 2). pl. 1. (N b). pl. 3. (O b). pl. 15. 18. 22. (R b 2). pl. 1. (O c 2). pl. 7. 8. Presentation (I), pl. 3. Remainder (F), pl. 7. Statutes (E. 7), pl. 4. (E. 10), pl. 10. Com. Dig. Grant (G 4. 7, 8, 9, 10, 11. 13). Estates (C 33). Bac. Abr. Descent (F). Estate for life (A). Prerogative (E). Statute (I). See the references and notes infra. (Ed.)
[40 b] the case of alton woods. Between the queen and richard bushopp. 1600. the attorney-general v. bushopp and others. Trinity Term 42 Eliz. [Followed, Corporation of Yarmouth v. Simmons, 1878, 10 Ch. D. 528.] S. C. 2 And. 154. Jenk. Cent. 251. Mo. 413. S. C. cited ace. Hob. 230. 10 Co. 68 a. S. C. cited ace. 1 Mod. 196. 1 Ld. Raym. 50. 296. 298. 302. 2 Salk. 561. 2 T. R. 537. 558. 560, 561, 562, 563. 3 T. R. 212. (). 1 Mo. C. P. Rep. 446. 449. 1 Hale, P. C. 254. 1 Inst. ii. 606 (a). Shep. Touch. 76. 99. 111. 248. 268. 287. Gilb. Ten. 312. 1 Bl. Com. 89. 5 Cm. Dig. 23. 50. 54. 60. Watk. Desc. 2d edit. 223. 3 Prest. Conv. 240. Vin. Abr. Almoner (a), pi. 2. Estate (z). pi. 2. (a a). pi. 7. (I b). pi. 2. Fictions (a), pi. 2. 4. Fractions (b). pi. 3. Grant (g a 2). pi. 6. Manor (c 2). pi. 2. Merger (e). pi. 1. Office or Inquisition (d.) pi. 6. Prerogative (g. b 2). pi. 1. (n b). pi. 3. (o b). pi. 15. 18. 22. (r b 2). pi. 1. (0 c 2). pi. 7. 8. Presentation (i), pi. 3. Remainder (f), pi. 7. Statutes (E. 7), pi. 4. (E. 10), pi. 10. Com. Dig. Grant (G 4. 7, 8, 9, 10, 11. 13). Estates (c 33). Bac. Abr. Descent (f). Estate for life (a). Prerogative (e). Statute (i). See the references and notes infra. (ED.) King Henry 8th being tenant in tail of the manor of Abbottesley, with the reversion to him, his heirs and successors, granted, by his letters patent, the said manor to (a) Ante 22 a. 1 Roll. R. 278, 279. 1 Bulstr. 125, 126. 179. 3 Bulstr. 92, 93, 94. 1 Syd. 70. 1 Co. 83 a. 119 capiatur pro fine. b. Hob. 17. 19. 194. 327. Yelv. 130. Latch. 76. 83. 188. Noy, 77. Poph. 203. 212. N. Benl. 148. pi. 226. Cro. El. 145. Jenk. Cent. 13. Cro. Jac. 6. Stat. 16 and 17 Car. 2. cap. 8. Cro. Jac. 386. 632. Stat. 22 and 23 Car. 2. cap. 4. Cro. Car. 442. 443. 1 Ro. 771. 774. (q 2) As to the judgment in intrusion for the King, see ante p. 22 a. n. (y). In suits between party and party, where an erroneous judgment for the defendant in the original action, on demurrer to a plea in bar, is reversed, the plaintiff has judgment for his debt and damages, as if he had recovered below, and is not merely restored to his action. Taylor and Moore's case, 1 Leon. 33. 2 Mann. Exch. Prac. 492. As to judgments in error in general, see 2 Saund. 101 a. &c. 2 Tidd's Prac. 6th ed. 1207-1216.; as to the award of restitution, 2 Saund. 101 y. 2 Tidd's Prac. 1225, 6 ; and as to damages and costs, and interest after non pros, or affirmance, 2 Tidd's Prac. 1218-1222. (ED.) 90 THE CASE OF ALTON WOODS lCO.EEP.40b. Walter Walshe and to the heirs male of his body; the manor was afterwards, by Act of Parliament, given expressly to the King, with a general saving of the rights of all persons; held, 1st. That the grant was void, for the King having only an estate tail himself, could not grant a greater estate than for his own life, and was therefore deceived in his grant; and it could not enure as a grant for the life of the King in possession, with the reversion in tail, for the King intended to grant one entire estate-tail, and not by fractions; 2d. That, (admitting the grant to be good) the manor being given by the Act expressly to the King, the saving was repugnant and void. As to the pleading, held, 1st. That in pleading title under a grant by letters patent of the lands of an attainted person, an averment that the predecessor of the King was seised by the Act of Attainder, without alleging the death of the person attainted, or office found, though informal, is sufficient: secus (at common law) if the grant had been by such predecessor; 2d. That an office found before the escheator virtute qfficii, returned into the Exchequer, instead of the Chancery, is good; 3d. That an office finding the attainted person seised at the time of his attainder, is sufficient to entitle the King, and if it find more, the residue is but surplusage; 4th. That where the King, in consideration of the surrender of a lease, grants, it is sufficient to aver the surrender made, without saying that there was a lease; for the surrender is the consideration. A false recital of a thing not parcel of the consideration, does not vitiate the King's grant. The King is not estopped by a recital in his patent, but the law will rather adjudge him to be deceived. Letters-patent, with the words ex ceria sdentia, &c. are to be construed beneficially for the grantee, according to the King's intent expressed in the grant, unless the King is deceived in his grant, or his intent cannot by law take effect; and such a grant is to be construed according to the proper signification of the words. The King's grant passes only what he may lawfully convey, and it cannot work a discontinuance, though made with Warranty. When a patent is capable of two constructions, one of which will make it good, and the other bad, the former shall be adopted. General words in a patent will not pass things which belong to the King by virtue of his prerogative. If a saving clause be repugnant to the body of an Act, it is void. If the King grant his reversion without reciting the particular estate, or make a second grant without recital of a former one, it is void. A recital of the King's estate will not help the grant, if the King is deceived. The King's grant cannot enure to a double intent. In an information of intrusion, which began Trin. 37 Eliz. Rot. 299. Scaccario, against Richard Bushopp for intrusion in a wood called Alton woods, in Alton, alias AJvington, and Rock, in the county of Worcester, &c. the defendant pleaded, that before the intrusion, one Anne Countess of Warwick, who was the wife of Richard Earl of Warwick, was seised of the manor of Abbottesley, alias Abberley, in the county aforesaid, whereof the said wood was parcel, in her demesne as of fee; and so seised quindena, Hilarii anno 3 Hen. 7. did levy a fine of the said manor, whereof &c. unto King Hen. 7. to have and to hold to him and to the heirs male of his body, saving the reversion unto the said countess and her heirs; and afterwards the said countess died seised of the said reversion in fee, after whose death it descended unto Edward Earl of Warwick her cousin and heir, that is to say, son and heir of Isabel, daughter and heir of the said countess; and afterwards by Act of Parliament 25 Januarii anno 19 Hen. 7. the (a) said Edward Earl of Warwick was attainted of treason ; and further it was enacted by the said Act, that he should forfeit to the said King and his heirs, all his lands, tenements and hereditaments, which he had the second day of August, anno 14 Hen. 7. Quarum quidem convictianis & attincturw pratextu, prced' nuper Bex Hen. 7. fuit seisilus de reversione manerii prced', unde, die. ut de (a) Bacon's Hist. H. 7. fo. 111. Dugd. Baron. 2 Tom. 164, 165. ante 28 a. 2. And. 154. Mo. 413. Jones, 79. ICO. REP. 41 a. THE CASE OF ALTON WOODS 91 feodo & jure, injure. Coronce suce Anglian, & sic inde seisitus existens, ac de manerio prcedicto cum pertinenliis, sicut prcefertur, seisit' existeri idem nuper Bex apud Westmon' in comitatu Mul. obiit, de manerio prced' cum pertinentiis, unde, &c. ac. de r-[41 &,}-versione prced', in forma prced' seisilus, post cujus mortem the manor and reversion descended unto Hen. 8. by force whereof he was of the said manor and reversion seised, &c. ; and being so thereof seised, it was found before the escheator, (a) virtute officii, 5 Julii anno 23 Hen. 8. that the said Countess of Warwick levied the said fine, and that she died seised, as aforesaid, of the reversion; and that the same descended to the said Edward Earl of Warwick; and that he being of the said reversion seised, the said earl was, by the said Act in 19 Hen. 7., attainted of high treason; and by the same Act it was ordained, that he should forfeit, ut supra: by force of which King Hen. 7. was seised of the reversion in fee; and that the said estate-tail, and the reversion also, after the death of Hen. 7., descended to Hen. 8.; by force of which King Hen. 8. was seised, viz. of the manor in tail, and of the reversion in fee, prout per inquisitianem prcedict' in cur. Cancellar. domince Regince apud Westmono.ster. pnedid' debito modo retornaf, & ibidem de recordo remanen', plenius apparet. And that King Hen. 8. so seised, that is to say, of the estate-tail in possession, and of the reversion in fee, by his letters patent (R 2) bearing date (b) 3 Nov. anno 23 Hen. 8. recitan' quod (a) 2 And. 32, 33. 36. 154. 1 Jones, 79. Mo. 413. (b) 2 And. 154. Mo. 414, 314. (r 2) It is a rule of the common law, that the King cannot grant any lands, tenements, or hereditaments, but by matter of record ; and therefore the King's grants are contained in charters or letters patent, to which the Great Seal is annexed ; and are usually directed or addressed by the King to all hia subjects. Grants or letters...
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