Record. Petition. Et. Morac. Superinde Et Judicium, Et Brevis de Error
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1794 |
| Date | 01 January 1794 |
| Court | High Court |
English Reports Citation: 87 E.R. 500
IN THE COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS, AND EXCHEQUER.
record. petition. et morac. superinde et judicuum, et brevis de error. Termino Sancti Hillarii Anno. I. Gulielimi et Maria), Regis et Reginse. Lorid. Mid,-Memorandum, quod Joseph us Hornby de Loud. gen. venit coram Baronibus de Scaccario vicesimo primo die Octobr. hoc termino in propria persona sua et exhibuit Curise hie quasdam literas patentes Dom. Caroli Securidi nuper Regis Anglise, &c. sub Magno Sigillo Anglite confect. geren. dat. tricesimo die Aprilis anno regni diet. Dom. Caroli nuper Regis Anglias vicesimo nono eid. Josepho Hornby, hatred, et assignat. suis confect. de annuali redditu sive siinima roille trecent. quinquagint. et duar libr. septemdecim. solid, et decem denar. annuatim solvend. recipiend. et percipiend. Anglice " taken" per pried. Josephum Hornby haired, et assign, suos in perpetuum de redditibus reventionibus proficuis et perquisit. et emolument, et solutionibus reservat. surgen. crescen. et provenien. eid. nuper Dom. Regi Carolo Secundo haered. et successoribus suis de pro ex sive ratione debit! excise Anglice " duty of excise " super potum lupulat. et illupulat. et alios liquores infra regn. Anglian domin. Wallise et vil. Berwici super Twedam virtute Actus Parliament! fact, anno regni ejusdem nuper Regis Caroli Secundi duodecimo intitul. "An Act for taking away the Courts of Wards and Liveries and Tenuras in Capite, and by Knights Service and Purveyance, and for Settling a Revenue upon His Majesty in lieu thereof," dat. et concess. solvend. quarteriatim viz. ad Festum Annunciationis Beats) Maria? Virginia Nativitatis Sancti Johannis Baptist, Sancti Mich. Arch, et Nativitatis Dom. per asquas et aequales portiones sub flducia in iisdem literis pateritibus expressa. Et preed. (a) It is said, S. C. Holt, 368, that in Hil. 10 Will. 3, judgment was given for the defendant by the whole Court. So in S. C. 1 Ld. Ray. 423. S. C. 1 Salk. 391. S. C. 12 Mod. 228. But by Comberbatch the judgment was arrested, and the defendant ordered to replead and avow de now, S. C. Comb. 330; and Carthew says, that no judgment was given, but that afterwards the grantees took new distresses severally, and, upon new replevins brought, made several avowries as for several rents; and then the parties agreed, and nothing farther was done. S. C. Carth. 342. 8 MOD. 31. TRINITY TERM, 7 WILL. 3. IN B. R. 501 Josephus Hornby petit literas patent, de recordo hie irrotulari. Quas quidem literas patent. Baronea hie receperunt et illas legi et sub serie verborum in iisdein literis patent, content, irrotulari prfeceperunt. Et tenor earund. literarum patent, sequitur in hajc verba, scilicet, [31] " Charles the Second, by the grace of God of England, Scotland, France and Ireland, King, defender of the faith, &c. To all to whom these presents shall come, greeting. Whereas, since the time of our happy restoration, we have been involved in great and foreign wars, as well for the safety of our Government, as for the vindication of the rights and privileges of our subjects; in the prosecution whereof we have been constrained for some years past, contrary to our inclination, to postpone the payment of the monies due from us to several goldsmiths and others, upon tallies struck, and orders registered on and payable out of several branches of our revenue arid otherwise. And although the present posture of our affairs cannot reasonably spare so great a sum as must be applied to the satisfaction of those debts, yet considering the great difficulties which very many of our loving subjects, who put their monies into the hands of those goldsmiths and others, from whom we received it, do at present lie under, almost to their utter ruin for want of their said monies ; we have rather chose, out of our princely care and compassion towards our people, to suffer in our own affairs, than that our loving subjects should want so seasonable relief: and having seriously considered of the ways and means to effect this our present purpose, we could not find any more effectual and less prejudicial to us in the present posture of our revenue, than by granting to each of them the said goldsmiths and others, to whom we are indebted as aforesaid respectively, and to his and their heirs and assigns, an annual sum or payment, answerable in value yearly to the interest of their respective debts, at the rate of six pounds per cent, per annum, for all such monies that are due unto them. The consideration whereof induced us to command our High Treasurer of England to cause all the accompts of the said goldsmiths to be stated and made up by Richard Aldworth, Esq. one of our auditors, to the first day of January 1676; which having been accordingly cast up and settled, it appears thereby that there is due and owing by us unto our trusty and well-beloved subject Joseph Hornby of London, goldsmith, the sum of twenty-two thousand five hundred and forty-eight pounds five shillings and sixpence. In satisfaction whereof, according to our intent in these presents expressed, we have resolved to grant unto him the sum of one thousand three hundred fifty-three pounds seventeen shillings and ten pence per annum, out of that part of our revenue of excise which was granted to us, our heirs and successors for ever, by an Act of Parliament made in the twelfth year of our reign, intituled 'An Act for taking away the Court of Wards and Liveries, and Tenures [32] in Capite, and by Knights Service and Purveyance, and for settling a Revenue upon His Majesty in lieu thereof.' Know ye therefore, that we, for the consideration aforesaid, and in satisfaction or lieu of the said debt, or sum of twenty-two thousand five hundred forty-eight pounds five shillings and six pence, by us owing to the said Joseph Hornby, and of our especial grace, certain knowledge, and meer motion, have given and granted, and by these presents, for us, our heirs, and successors, do give and grant unto the said Joseph Hornby, his heirs and assigns, one annual or yearly rent or sum of one thousand three hundred fifty-two pounds seventeen shillings and ten pence, of lawful money of England, to be yearly had, received, and taken by the said Joseph Hornby, his heirs and assigns for ever, out of the rents, revenues, profits, and perquisites, emoluments and payments reserved, arising, accruing, or coming, or that hereafter shall or may be reserved, arise, accrue or become due or payable to us, our heirs and successors, out of, for or by reason of the duty of excise upon beer, ale and other liquors within our kingdom of England, dominion of Wales, and town of Berwick upon Tweed, by virtue of the said Act of Parliament, the said sum of one thousand three hundred fifty-two pounds seventeen shillings and ten pence per annum, to be paid quarterly at the four most usual feasts in the year, that is to say, at the Feast of the Annunciation of the Blessed Virgin Mary, the Nativity of St. John the Baptist, St. Michael the Archangel, and the Birth of our Lord Gocl, commonly called Christmas, by even and equal portions, in trust for such of the creditors of the said Joseph Hornby, as within one year next ensuing the date hereof shall, upon notice of these presents, deliver up their securities, and accept of assignments of proportionable parts of the said yearly sum of one 502 TRINITY TERM, 7 WILL. 3. IN B. R. 5 MOD. 33. thousand three hundred fifty-two pounds seventeen shillings and ten pence for satisfaction of their respective debts, according to the true intent arid meaning of the covenant in that behalf herein after contained, for so much as their proportionable parta shall amount unto, and in the mean time shall not sue or prosecute the said Joseph Hornby, his heirs, executors or administrators, for such their debts; and the residue and overplus of the said yearly sum of one thousand three hundred fifty-two pounds seventeen shillings and ten pence to remain and be to and for the proper use and benefit of the said Joseph Hornby, his heirs and assigns, without any trust or account whatsoever; the first payment of the said sum of one thousand three hundred fifty-two pounds seventeen shillings and ten pence to commence from the Feast of the Birth of our Lord God one thousand six hundred seventy and [33] six: and we do hereby, for us, our heirs and successors, authorize direct and appoint our High Treasurer, Chancellor, Under-Treasurer, Chamberlain and Barons of our Exchequer, and the High Treasurer and Commissioners of the Treasury, Chancellor, Under-Treasurer, Chamberlain and Barons of the Exchequer, of us, our heirs and successors that hereafter shall be, and all other officers and ministers of the said Court and of the receipt thereof now being or that hereafter shall be, that they and every of them, in their respective places, do from time to time, upon request of the said Joseph Hornby, hia heirs or assigns, respectively perform all acts necessary for the constant and due payment of the said yearly rent or sum of one thousand three hundred fifty-two pounds seventeen shillings and ten pence to the said Joseph Hornby, his heirs or assigns, as the same shall grow due and become payable, and of every such part and parts as the said Joseph Hornby, his heirs or assigns, shall grant or assign to any person or persons, from time to time, according to the trust and agreement in that behalf herein contained ; and as occasion shall be, levy or strike, or cause to be levied or stricken in the receipt of the Exchequer of us, our heirs and successors, from time to time, tallies of pro or assignment, or other tallies, as the case may require, and as shall be desired, upon the commissioners, treasurers, receivers, collectors or farmer's of the said duty and revenue for the time being; or upon such other person or persons as ought to be charged or chargeable...
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