Bret against Johnson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1611 |
| Date | 01 January 1611 |
| Court | Exchequer |
English Reports Citation: 145 E.R. 249
IN THE EXCHEQUER
REPORTS in the COURT of EXCHEQUER, beginning in the Third, and ending in the Ninth Year of the Raign of the late KING JAMES. By the Honourable RICHARD LANE, late of the Middle Temple, an eminent Professor of the Law, sometime ATTURNEY GENERALL to the late PRINCE CHARLES. Being the First Collections in that Court hitherto extant. London, 1657. [1] mlchaelmah, 3 jac. m the exuuequeh. bret against johnson. In an information for the King by the attorney general against Sir Robert Johnson for entrie into a house, and close in Buckingham town, called the Parsonage Close, in February 4 Jac. upon not guiltie pleaded a special verdict was found to this effect: that Queen Klizabeth was seised in fee, in right of her Crown of the late prebends of Button Buckingham, Horton, and Hordley in the countie of Buck, whereof the place where, &c. is parcel, and she 20 Februurie, 11 Eliz. granted to Henry Seymor Lord Soymor the said prebends for life reudring 1 Is. 4d. for rent, and the jurors say, that these letters patents, by the command of the said Lord Seymor were restored to be cancelled; and he being seised pro ut lex postulat, (2ucetl Eli/,. '1I Mar. 37 Eliz. reciting the former patent, quas quidem litteras paterites, et totura jus, statum, titulnm, terminum et interesse de et in pnemissis pnufatus dominus Seymor modo habens, et gjiudens sursum rediddit et restituit cancellandum, to this intention nevertheless that we should tnake to him another patent, which surrender we accepted of by these presents ; she by her patent under the great seal as well in consideration of the said surrender, as for other causes and considerations, demised and granted to the said Lord Seymor the said foure prebends for his life, tho remainder to Anthony Wingfield for life, the remainder to Robert Johnson for life reudring 901. 15s. 3d. for rent, and bhey found that there was not any actual surrender, or cancellation of the said letters patents of 11 Eliz but rostitut. ad cancellancliim as before the making, and acceptance of the second patent of 37 Eliz. and they found that there was not any vacat made upon the inrolment of the patent of 11 liliz. and tboy found that 10 April 37 Eliz Anthony Wingfield, and Johnson granted to the Lord Seymor for 90 years to commence after his death, or forfeiture of his estate, if Wingfield, or Johnson, or one of them should so long live, and 20 April the same year the Lord Henry Seymor granted to Sir Robert Johnson for 60 years to begin after the death of the said Seymor, rendring 4001. rent to him his executors or assignes ; the Lord Seymor died 4 Jac. and Sir Robert Johnson entred, upon which entrie this information was brought: nay, that the defendant is guiltie, and he divided the case into two points. First, if there be any actual surrender of the patent of 11 Eliz. because there ia not any record thereof, and the King 250 BRET V. JOHNSON LANE, 2. cannot take by bargain or contract if there be not a record of it, as appears by 5 E. 4 and 7 E. 4, 6, and Plowden in The Dutchy of Lancasters case, for as it is there said, it agrees with the majestie of the King to have a record of things [2] made by him, or to him, and if a grant is pleaded to be made to the King, it is good to say quod non habetur tale recordum, and here is no record, but a memorandum made upon it, for otherwise leasea made by abbots before the dissolution shall be said to be of recoid, because after the dissolution they were all put in the Tower amongst the records, but questionless those leases are not of record, because there is not any memorandum made upon them: also in The Lord La timers case, [2 H. 7 in Kelloway, where baron and feme seised in right of the feme in fee granted to the King, this is not good if the deed be not iurolled, for there they of the other side would have concluded the tenant to say the contrary, but that the deed was inrolled, and so by way of admittance confess that a grant to the King is not good, if the deed be not inrolled : 3 Eliz. Dyer, the Lord Dacres surrendred a patent of an office granted to him before Sir Nicholas Hare Master of the Rolls, but the surrender was not recorded, nor the patent cancelled, nor a vacat entred upon the inrohnent, this is void, and shall not be aided now after the death of Sir Nicholas Hai'e per optimum opinionem; in Kemps case, Dyer, 195, but it will be said that it appears not there, that the surrender was made in Chancery, and therefore differs from our case, but see 19 Eliz. Dyer, 355 which is direct in the point, where an exchange of land was with E. 6 by deed acknowledged to be inrolled, &c. but not inrolled, it cannot after be inrolled, nor vest any interest in the Queen either as heir, or purchaser, so hereby it appears that before inrolment, an estate vests not in the King, and he said that he had heard Popham late chief justice say, that the opinion of the judges was, that in this case nothing vests in the King until inrolment, and for that there was a private act made in 39 Eliz. to relieve this particular case, so the memorandum makes the record, and not the deliveiy of the patent to be cancelled, but the opinion of Davers in 37 H. 6, 10, may be objected against me, where he saith, that if a man make a feof rnent to the King, and deliver the deed in the Exchequer1, or at the Kings coffers, it is good without inrolment, which by the court is intended for goods, and not to a feofment made to the King, for this is only the opinion of Davers, which I denie to be law, and also all this may be admitted for law, and yet prove nothing, for when the partie surrenders to the King, and delivers the deed to be inrolled, so that he had done all which in him is to pass the land to the King, then it may aptly be said in common speech, that the right of the land is in the King: because he of right ought to have it after inrolment, although he had not the propertie of the land before the deed be inrolled, then if nothing vest in the Queen in the principal case before the patent made in 37 Eliz. the words subsequent in the patent will not help the matter, viz. quam quiclem sursura redditionem acceptamus per prasentes, because the King had taken nothing before, and the recital in the patent concludes not the Queen; it hath been said that the not making of a memorandum is the fault of the elark, and this shall not prejudice the partie,in so great a mischief, but I answer that the same mischief will insue, where a man sells land by indenture, and delivers it to the clark to be inrolled, and he inrols it not within 6 moneths, nothing shall pass by the sale, yet this is only the fault of the clark, but in this case he may have his action upon the case against the clark, if so it be that he had paid all his fees, the same law in the principal case, but admitting that, yet great mischief will insue if it be so that the estate shall pass to the King before inrolment, for then the estate and interest shall be tried by the countrie, and not by the record, and then also in what place should a man search to flnde the Kings estate, and perhaps for want of knowledge thereof every grant of the King will be avoided, and this would be a great mischief to the subjects, but admitting that this should be a good surrender without a memorandum, or vacat, yet this is not shewed in this; case, for it appears not here that his intent was to surrender it, for although he deliver up his; letters patents, yet his estate remaines, and then the consideration of thejpatent in 3|7 Eliz. being of a surrender of the first patent, and also of a surrender of thei estate, if the estate be not surrendred as well [3] as the patent, the consideration is for tTiat false, and then the patent is void, and to prove that the estate remains although that the patent be surrendred, it appears by Fisher, 1 2 H. 7, 12, where tenant in tail of the gift of the King loses his letters patents, his heir is riot at a mischief, for he may have a constat, and this shall be good in evidence, but he cannot plead it, LANE, 4. BRET V. JOHNSON 251 and this appears by the preamble of the statute of 13 Eliz. cap. 6, dean and chapter lease land, this shall be by deed, and in this case although that the lessee redeliver his deed, it is no surrender of the estate, but he shall not plead it without shewing a dead of the assent of the chapter, but he shall give it in evidence, and good, because he had once a. deed thereof, as it appears by 32 E. ;!, Monstrance of Deeds, and it appears by 32 H. 8, Patents, Br. 97, that if the Kings patentee lose his letters patents, he shall have a constat, and by .32 H. 8, Sureiider, Br. 51, and 35 H. 8, Tail: that if the King give in tail, and the donee surrender his patent, the tail thereby is not extinct, so although letters patents are necessary for pleading of the Kings grant, yet they are not requisite for the essence and continuance of the estate: also it is found that the said patents were restored to be cancelled per mandatum Domini Heymor, & it is not found what manner of authoritie the Lord S. gave, nor found to whom the letters patents were delivered, nor at what time, and peradventure they were delivered after the second patent made, and then is the second patent false, because then there was no surrender, and this is one of the reasons put in Kemps casfi, 3 Eliz. 195. The second point admitting that there is no actual surrender, if notwithstanding that, the patent of 37 Eliz. be good, and as to that, I say if this patent bo good, it is because the Queen had recited the particular estate, and therefore is not to liar damage, or because the second patent is a surrender in law of the first, and the rather because it appears to be the intention of the Queen, that the acceptance should be a surrender by these words, quam quidem sursutu rerlditionem aeceptamus per pnesentes; and as to the first reason it seems to me, that...
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