The King and Sir Thomas Waller Plaintiffs, against Frances Hanger Widow, Executrix of George Hanger her late Husband, Deceased, by Information
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1688 |
| Date | 01 January 1688 |
| Court | Court of the King's Bench |
English Reports Citation: 81 E.R. 1
COURT OF KINGS BENCH
The THIRD PART of the REPORTS of EDWARD BULSTRODE, of the Inner Temple, Esquire. Of Divers RESOLUTIONS and JUDGEMENTS, given with great Advice and Mature Deliberation, by the Grave and Learned Judges and Sages of the Law. Of Divers and Sundry CASES and MATTERS in LAW. With the REASONS and CAUSES of their said Resolutions and Judgments, given in the COURT OF KINGS BENCH, in the time of the late Reign of KING JAMES I. and the beginning of KING CHARLES I. The Second Edition. 1688. [1] termin. hillar. 12 jag. banco kegis. the king and sir thomas waller Plaintiffs, against frances hanger Widow, Executrix of George Hanger her late Husband, Deceased, by Information. Entred terrain. Pasch. 9 Jac. inter placita Regis, Eot. 163. An information for prisage. 1 Bo. r. 138. 2 Bulst. 134. 261. Latch. 261. Calth. 33. Mo. 832. Sir Thomas Waller Miles, capitalis pincerna domini Eegis, by his letters patents, exhibited an information against Frances Hanger widow, for deteining of prisage, (a) eight tun of wine; and shews, that the King was seised in his deraesn as of fee, of this ancient duty called prisage, ut in jure Coronas, and that he and all his progenitors have used to have prisage, which is of every ship, of all merchants, aliens, or denizens, containing ten tuns of wine, to have for prisage one tun ; and if it contain twenty tun, or more, to have two tun, (s) unum ante doleum, and the other deorsum, and thia he is to have as a flower of the Crown : that 28 Novembris, 5 Jac. two ships laden with wines, of the goods of George Hanger, did arrive in the port of London, the one called the Hopewell, with 26 tuna, so that two tuns of these were due to the King; and the other called the Desire, with 22 tuns of wine, of which two tuns were due to the King: that afterwards the other two ships did arrive also in the port of London, and that in these four ships were 124 tun of wine, of which eight tun was due unto the King for prisage; that he required these eight tuns of wine of the said Frances Hanger, to the use of the King; and that she, of the premises not ignorant, seeking the dis-inheritance of the King, refused to deliver them; upon this he prayed the advice of the Judges, and to have process against the said Frances, who came in, and said by protestation : first, that the information was insufficient: secondly, that Sir Thomas Waller was not capitalis pincerna domini Eegis, & pro placito dicit, quod K. B. x.-1 l 2 TERMIN. HILLAR. 12 JAC. 3 BULSTRODE, 2. bene & verum eat; that the four ships with wines did arrive in the port of London, as is laid in the information; two of which ships did arrive in the life time of the said George her husband, and two after his death, and that the said George her then husband, was possessed of these goods, ut de vinis suis propriis, and so being possessed, made her his executrix, and dyed : afterwards she being libera feemina, accepta super ae onera testamenti, did un-[2]-lade theae two ships, and did take and occupy the winea, as executrix; and she also pleaded the charter of discharge of prisage made, fi Martii, 1 E. 3. &c. unto the Major, Commonalty, and Citizens of London, in hsec verbo, (s) quod de vinis civium, nulla prisa fiat, sed perpetue inde essent quieti, and takes a travers, absque hoe, that these were her own proper goods, and that ahe had nothing in them, but only as executrix of George Hanger her late husband, with an averment, that the said George, fuit civis, & liber homo de Civitate London, (s) of the company of cloath-workers; and she also averred, quod Civitas Lon. est antiqua civitas, incorporated by the name of major and commonalty : upon this plea the Kings Attorney-General demurred in law, upon which the case was briefly this, (s) merchanta, freemen, citizens, and resiants in London, by the charter of 1 E. 3. are discharged of the payment of prisage. A merchant citizen, and freeman of London, had four ships with wines arrived here in the port of London, two of them in his life time, and two after his death; after the arrival, and before the unlading of the two first ships, he made his wife his executrix, and dyed ; who afterwards unladed these ships so arrived, in the life time of her husband, and also the other two ships which arrived after his death : the sole question upon this demurrer was, whether she shall be discharged from the payment of prisage for these wines, or not, by force of the said general grant of discharge of prisage, by the said charter of 1 E. 3. This case was long argued at the Bar, in the terms of 9 & 10 Jac. B. R. And afterwards in Tiin. 10 Jac. B. R. this case was argued by the four Judges, who were then divided in opinion, two against two. Crake Justice. The question here is, whether prisage shall be paid for these wines, or not: in angustiis positua sum, which way to incline my opinion ; but I think, that in this case, judgement ought to be given for the King, and that prisage ought here to be paid unto him, for these two ships which did first arrive, but especially for the two last ships: I am of opinion, that hoc privilegium a principe concessum, ought to be taken and construed, benign, largely and amply, and not to be restrained, bene meriti Cives LondoD; this immunity to be extended to citizens, men or women citizens, aa well to the one, as to the other clearly; civis utriusque generis, & gratuitum donum Regis, this was to be to the citizens of London, being totius Britannise, & regni totiua Epitome, that women are not to be excluded out of the benefit of this charter, for that they deserve aa well as others; so that no dis-ability being in the woman, but she being Integra civis, is very well capable of this immunity for the widow of a merchant citizen, est civis & civium libertate dotata, and she shall have the same privilege, aa well as her husband, as long as she is resiant within the city, she shall be free from payment of prisage. All this I agree : but here relicta verificatione, that she is civis, saith, that she hath these wines in another right, and takea a travers that they are not bona sua propria, but that she hath them as executrix of her late husband i as to the privilege here of discharge, the difference will be, where the goods are attached in the life of the husband, and where after his death ; where it is in his life time, and he òdies the same day, yet the discharge shall continue; but here in this case the same was after his death. Also he which is to take benefit of this charter, ought not to be inquilinus nee adventitius, he ought to be civis residens, & coramorans iucola civitatis, and so are the words of the charter of discharge, made unto them in 1 E. 3. And the King, ex special! gratia, did then grant this discharge unto the city; and it appears by Magna Charta, cap. 9. quod Civitas London, omnes habeat libertatea suas antiquas, & consuetudines illrasas. Also this prisage is an ancient duty in the Crown, and due unto the King, as of common right, and the same is a prerogative in the Crown, incident unto the King, as a flower or fruit from the tree, but not so inseparably [3] for that he may well grant this immunity to whom he will. A woman may be a citizen, but here she is not an owner as she ought to be. 3 BULSTSODE, 4. TERMIN. HILLAB. 12 JAC. 3 If a citizen makes a foreigner his executor, who unlades the wines, clearly he shall not have the benefit of this discharge, for that he here hath them in another right, and the prisage growTtftte to the King, by the unlading ; so that a foreigner shall not have the benefit of this discharge, nor yet an executor of an executor. If the goods of a citizen come to a foreigner, he is not civis. If a foreigner makes a citizen his execator, he shall not have this privilege of discharge from payment of prisage ; for these are not bona civium, as they ought to be, or no discharge ; for that he which is to be quit from payment of prisage, ought to be a citizen, and ha ought to have the goods in his proper, and not in anothers right, Now this prisage at first grew due, a probable reason may be this; for that the King is to scour the narrow seas, and therefore he is to have of every ship, bringing ten tans of wine, one tun ; and if twenty tons, or above, then to have two tuns for his prisage; so that this is an hereditary rigkt in the Crown. Another matter is here observable, that formerly, in ancient time, the usual burthen of ships was but ten or twenty tun, but now, by great industry, they are made greater, and in this, the great benignity of the King is to be observed, that he cloth not extend the payment of prisage, according to the bigness of the ship, but only to have two tuns out of a ship^ though the same contain forty or fifty tuns, as here it appeared to be; and from hence may be gathered a good caution unto subjects, ultra debitoa Ihnites & fines, not to extend the Kings charter and grant, and to doe contrary unto this, is retribuere malum, pro bono. As to the charter it self, made in 1 E. 3. and the due construction thereof, letters patents of the King ought to be construed, secundum intentionem domini Regis, & non ad deceptionem: and the King, quatenus Eex, est protector legis terras, & quod Rex legi, lex regi, as Bracton observeth, Rex est anima legis, & lex est anima Regis : letters patents are to be construed benign, favorably and liberally ; and upon the true construction of this charter here of discharge, is the main knot and difficulty in this case, papilla oculi Regis Civitaa London, and the same is called, Camera Regis. As to the words of this charter, (s) de viuis cirium nulla prisa fiat, sed inde per-petua essenfc quieti: here is concessio Regis, and who he intended to have benefit by this immunity; and this was not Frances Hanger, but George Hanger de...
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