bret against johnson in a information for the king by the attorney general  against sir Robert Johnson for entry into a house and close in Buckingham town  call the parsonage close in February James upon not guilty plead a special  verdict be find to this effect that queen Elizabeth be seize in fee in right  of her crown of the late prebend of Sutton Buckingham Horton and Hordley in  the county of buck whereof the place where c be parcel and she February I  Elizabeth grant to Henry seynor Lord seynor the say prebend for life render  two S d for rend and the juror say that these letter patent by the command of  the say Lord seynor be restore to be cancel and be be seize pro ut law demand  queen Elizabeth mark Elizabeth recite the former patent quas indeed letter  patenes et totum law position distinction boundary et interest de et in  premise a saying beforehand dominus seynor modus to have et to rejoice up  rediddit et to set up again cancelland to this intention nevertheless that we  shall make to he another patent which surrender we accept of by these present  she by her patent under the great seal as well in consideration of the say  surrender as for other cause and consideration demise and grant to the say  Lord seynor the say four prebend for his life the remainder to Anthony  Wingfield for life the remainder to Robert Johnson for life render S d for  rend and they find that there be not any actual surrender or cancellation of  the say letter patent of I Elizabeth but restitute ad cancelland as before the  make and acceptance of the second patent of Elizabeth and they find that there  be not any vacat make upon the enrolment of the patent of Elizabeth and they  find that April Elizabeth Anthony Wingfield and Johnson grant to the Lord  seynor for year to commence after his death or forfeiture of his estate if  Wingfield or Johnson or one of they shall so long live and April the same year  the Lord Henry seynor grant to sir Robert Johnson for year to begin after the  death of the say seynor render rend to he his executor or assign the Lord  Seymordied James and sir Robert Johnson enter upon which entry this  information be bring nay that the defendant be guilty and he divide the case  into two point first if there be any actual surrender of the patent of I  Elizabeth because there be not any record thereof and the king lane er p can  take b that bargain or contract if there be not a record of it as appear by e  and e and Plowden in the duchy of lancasters case for as it be there say it  agree with the majesty of the king to have a record of thing lane make by he  or to he and if a grant be plead to be make to the king it be good to say quod  lion to have tale record and here be no record but a memorandum make upon it  for otherwise lease make by abbot before the dissolution shall be say to be of  record because after the dissolution they be all put in the tower among the  record but questionless those lease be not of record because there be not any  memorandum make upon they also in the Lord latimers case h in kelloway where  baron and feme seize in right of the feme in fee grant to the king this be not  good if the deed be not enrol for there they of the other side will have  conclude the tenant to say the contrary but that the deed be enrol and so by  way of admittance confess that a grant to the king be not good if the deed be  not enrol Elizabeth dyer the Lord Dacres surrender a patent of a office grant  to he before sir Nicholas hare master of the roll but the surrender be not  record nor the patent cancel nor a vacat enter upon the enrolment this be void  and shall not be aid now after the death of sir Nicholas hare per good belief  in Kemp case dyer but it will be say that it appear not there that the  surrender be make in chancery and therefore differ from our case but see  Elizabeth dyer which be direct in the point where a exchange of land be with e  by deed acknowledge to be enrol c but not enrol it can after be enrol nor vest  any interest in the queen either as heir or purchaser so hereby it appear that  before enrolment a estate vest not in the king and he say that he have hear  Popham late chief justice say that the opinion of the judge be that in this  case nothing vest in the king until enrolment and for that there be a private  act make in Elizabeth to relieve this particular case so the memorandum make  the record and not the delivery of the patent to be cancel but the opinion of  davers in h may be object against I where be say that if a man make a feoff to  the king and deliver the deed in the exchequer or at the king coffer it be  good without enrolment which by the court be intend for good and not to a  feoff make to the king for this be only the opinion of davers which I deny to  be law and also all this may be admit for law and vet prove nothing for when  the party surrender to the king and deliver the deed to beinrolled so that he  have do all which in he be to pass the land to the king then it may apt be say  in common speech that the right of the land be in the king because be of right  ought to have it after enrolment although he have not the property of the land  before the deed be enrol then if nothing vest in the queen in the principal  case before the patent make in Elizabeth the word subsequent in the patent  will not help the matter videlicet how indeed up redditionem acceptam per  present circumstance because the king have take nothing before and the recital  in the patent conclude not the queen it have be say that the not make of a  memorandum be the fault of the clark and this shall not prejudice the party in  so great a mischief but I answer that the same mischief will ensue where a man  sell land by indenture and deliver it to the clark to be enrol and he inrols  it not within month nothing shall pass by the sale yet this be 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 have pay all his fee the same law in the principal  case but admit that yet great mischief will ensue if it be so that the estate  shall pass to the king before enrolment for then the estate and interest shall  be try by the country and not by the record and then also in what place shall  a man search to find the king estate and perhaps for want of knowledge thereof  every grant of the king will be avoid and this will be a great mischief to the  subject but admit that this shall be a good surrender without a memorandum or  vacat yet this be not show in this case for it appear not here that his intent  be to surrender it for although he deliver up his letter patent yet his estate  remain and then the consideration of the patent in Elizabeth be of a surrender  of the first patent and also of a surrender of the estate if the estate be not  surrender as well lane as the patent the consideration be for that false and  then the patent be void and to prove that the estate remain although that the  patent be surrender it appear by fisher h where tenant in tail of the gift of  the king lose his letter patent his heir be not at a mischief for he may have  a constat and this shall be good in evidence but he can plead it lane er p and  this appear by the preamble of the statute of Elizabeth cap dean and chapter  lease land this shall be by deed and in this case although that the lessee  redeliver his deed it be no surrender of the estate but he shall not plead it  without show a deed of the assent of the chapter but he shall give it in  evidence and good because he have once a deed thereof as it appear by e  monstrance of deed and it appear by h patent Br that if the king patentee lose  his letter patent be shall have a constat and by h Surender Br and h tail that  if the king give in tail and the donee surrender his patent the tail thereby  be not extinct so although letter patent be necessary for plead of the king  grant yet they be not requisite for the essence and continuance of the estate  also it be find that the say patent be restore to be cancel per mandatum  domini seynor it be not find what manner of authority the Lord S give nor find  to who the letter patent be deliver nor at what time and peradventure they be  deliver after the second patent make and then be the second patent false  because then there be no surrender and this be one of the reason put in Kemp  case Elizabeth the second point admit that there be no actual surrender if  notwithstanding that the patent of Elizabeth be good and as to that I say if  this patent be good it be because the queen have recite the particular estate  and therefore be not to her damage or because the second patent be a surrender  in law of the first and the rather because it appear to be the intention of  the queen that the acceptance shall be a surrender by these word how indeed up  redditionem acceptam per present circumstance and as to the first reason it  seem to I that the queen recite this as a particular estate determine and not  as a estate continue for by these word modus to have et to rejoice it appear  that the meaning of the queen be that the Lord seynor have not a estate  continue in the intent of the queen at the time of the make of the second  patent but the Lord chandos case in Coo fol seem to impugn I in this opinion  where the king make a gift in tail and afterward by patent recite the former  grant and also that the patentee have deliver up the patent into the chancery  to be cancel by virtue whereof he think himself to be seize in demean as of  fee do grant the land unto the say donee in fee in that case it be adjudge  that the reversion do pass unto the donee although the word of the reversion  be not contain in the patent although that the king in that case do think that  he grant a possession but the reason of that be that although the patent be  not enrol yet by law it shall have be surrender unto the king nevertheless  because that be the collection of the king and not the suggestion of the party  that the king be seize by virtue c therefore the collection be false shall not  make the patent void for all there that come of the suggestion of the party be  true but our case be otherwise for here the intention of the king be that he  have the land in possession when he have make the grant and in truth he have  but a reversion also if the patent shall be good great prejudice will or may  ensue to the queen thereby for put the case that the queen have annex a  condition to this lease or that she have reserve a great rend upon it this  condition or increase of the rend be the cause that the queen have make this  grant and that if the second grant shall be good and the first not determine  that the grantee may claim his first estate and so defeat the queen of her  rend and of his condition to have benefit of either and this be the reason why  the patent be adjudge void in the case of Barwick Coo lib foe because some  parcel be not surrender to the queen and therefore they be not subject to  condition or rend reserve upon lane the second patent and for a second reason  be argue that the acceptance of the second patent be not a surrender in law of  the first patent because the first patent be mere void as it appear in  fulmerston and steward case Plowden that the reason why the take of a second  lease shall be a surrender of the former be because both the estate can be in  one and the same parson at one and the same time but this reason hold not in  our case because no estate passes by the second patent in regard it be void  and therefore this case may be resemble unto the last case in Elizabeth dyer  where a man take a second benefice incompatible without dispensation noth not  make the first benefice void by the statute against plurality because he never  be a lawful parson of the second benefice in respect he never subscribe to the  article accord to Elizabeth cap and in harries and wing case the second patent  be void but a three reason be he think that these word how indeed up lane er p  redditionem acceptam have not aid this grant for the second patent be make in  consideration of a surrender make by the patentee and therefore there ought to  be a good surrender make by he or otherwise the consideration be false for the  king in consideration of a surrender make noth grant land where in facto there  be no surrender as if the king grant black acre in consideration of a  surrender of white acre which in facto be not do this grant be void also this  appear by these word modus to have et to rejoice up To give back et to set up  again c that the intention of the queen be that the Lord seynor have surrender  before and that he have no estate at this time of the make of the grant for  these word modus to have et to rejoice ought to be interpret accord to the  rule of grammar and for that in h b the court consult with grammarian touch  the exposition of Latin word and be by they direct and be say that this word  modus have diverse signification for this signify recently sometimes sometime  but most proper it signify recently or sometimes modus a preparation to be  codrus to be subito who modus craesus to be modus ad haec diem c there it  signify the present tense or time but in the principal case if modus shall  signify the present tense there it will not stand with this word up To give  back which be the preter tense but if here it be construe that modus signify  the present tense this may well stand with up To give back and the meaning of  the queen ought to be take to be that the queen be deceive and the patent void  although in the principal case here be a good surrender before the second  patent yet until agreement nothing vest in the queen and therefore if a man  plead a surrender make by the lessee to he in reversion he ought to plead a  agreement to this surrrender and h that this be not in he before agreement and  entry and e bar that until agreement nothing vest in he it be late adjudge in  the common plea where a incumbent have resign yet until the ordinary do agree  unto it he remain a incumbent still and for that in as as the queen have not  agree before the second patent make nothing vest in her till then and then she  be deceive for she think that she be in possession thereof at the time of the  grant and therefore he conclude that he conceive the patent be void brock to  the contrary and he divide the case into three point first whether here be a  actual surrender find to be make in law second if the acceptance of the second  lease be good or if the queen recite the estate and that he have surrender  which the queen have accept and that in consideration thereof she make the  grant whether this be make good although there be no actual surrender three  admit that here be no actual surrender in facto whether this grant be aid by  the statute of Elizabeth cap but first before he will enter into his argument  he say that he will wash away the rub cast in his way to make his way the  smooth and first where it have be say that if the queen shall take by contract  or bargain without record that great mischief will ensue for by that mean the  queen title shall be try by the country and in proof thereof he cite the Lord  latimers case in h which he think to be no authority lane for that purpose for  there the opinion of the court be deliver concern the show forth of letter  patent but not concern matter of enrolment also the case be of a estate of  inheritance to be convey from the king but the case now in question be but for  a estate for life which may in law more easy be determine than a estate of  inheritance convey also the case of Elizabeth dyer cite of the other part  prove not this case for first the question be not there whether the king take  anything without enrolment but whether the deed may be enrol in the time of  another king second if this be confess that the king there shall take nothing  without enrolment yet this be not like to our case for here this be but to  merge a particular estate which differ much from the case of convey of a  inheritance also this be confess if there have be a memorandum make in the  margin then the surrender have be good and the want thereof be the laches of  the clark and then if it shall not be a surrender before the memorandum make  the clark shall make the surrender and not the party and as to the book of h  it be not answer for to say that the king bath no right to the thing grant  before enrolment but that he bath the property that can be and to that which  bath be object that there noth not appear any intention of the surrender  because that although the patent be surrender the estate remain the book of e  monstrance of faith prove nothing for there it be say that a mail may plead  lane er p that a dean and chapter do not lease modus et form without show any  deed for there this plead be not to divest any thing out of c and also it  appear in the principal case that his intent be to surrender for the jury do  find that the letter patent be restore by the command of the Lord seynor to be  cancel and to that which have be object if the second patent shall be good  that the queen may lose her rend or condition because the first lease have his  continuance to that I give answer that the first lease bath not his  continuance and therefore no loss can grow to the queen and to that which have  be object that the queen be deceive it appear by these word modus habeas c to  set up again c that the intention of the queen be that the Lord seynor have  surrender his estate before and that he now have nothing because that the word  modus be join with the word To give back signify the time pass but as to that  it seem to I that although modus poetry freedom in the strict construction of  grammar may signify the time pass yet the signification thereof shall not be  so take in the letter patent for there it shall be take in common construction  and not to the deceit of the king and therefore in the dean and chapter of  bristols case e dyer the word be recently in tenure I S et modus in tenure a b  there recently be take for the time pass but modus for the present time and in  h Rogerum Townesend modus soldier be to be intend that he be now knight and  not that he be a knight in time pass and not now also it be so to be observe  here that these word harden et to rejoice be annex to this word modus both  which be in the present time and to set up again come afterward and so modus  be not annex to to set up again but unto to have et to rejoice also although  the word shall be refer unto to set up again yet all may well stand together  for to set up again may be refer unto the time present as siqae to be in h and  to that which have be object that until the queen agree unto the surrender the  estate be not in the queen he think that where tenant for life surrender  before agreement he in the reversion be tenant to the praecipe although he  shall not maintain a trespass before entry for by h it appear that a estate  for life may be determine aswell by word as by surrender so in h where the  tenant die without heir the freehold be immediate in the lord but yet he shall  not have a action of trespass before entry now as to the first point he  conceive it to be a actual surrender although there be no vacat make nor any  memorandum and to examine it be do relate what act may make a surrender and to  that purpose he say that word be use which do prove a assent of the tenant  that lane he in reversion shall have a estate that shall be a surrender  without express word of a surrender for a man may surrender by these word to  let go back or to unseal for the word be not material if so there be substance  as in e plea and assize pl if a lessee for life say to his lessor that you  shall enter and I will that you shall have this land this be a good surrender  so in h dyer if a termor agree that he in the reversion shall make a feoff  that be a surrender so in Elizabeth dyer lessee for life be content that he in  the reversion shall have the land and his interest that be a surrender but in  that case it appear that a rend be reserve and a agreement that the lessee  shall have it again if he survive the lessor and therefore appear plain that  it be not intend to pass by way of surrender it be at the last adjudge no  surrender so in h the grantee of a rend do surrender the deed and that hold to  be a good surrender of the rend it be doubt in Elizabeth dyer in sir Maurice  Barkleys case if the surrender of the patent of a office unto a master of the  chancery out of the court be good without delivery of the patent to be cancel  but that book prove nothing but that a delivery of a patent to be cancel shall  be a good surrender though the patent be not cancel in facto it have be object  that it matter not what commandment the Lord seynor do give nor in what court  the patent be give up nor before who but to that he say inasmuch as it be find  that the patent be give up by the commandment of the Lord seynor to be cancel  that be it be by his command it be his own surrender also it appear that the  letter patent be under the great seal of England which always issue out of the  chancery and therefore it can be cancel in any other court and it shall be  intend that they be give up to be cancel there also this word to set up again  signify to restore and a man can restore any thing but where he have it and he  have it out of the chancery and therefore it shall not be otherwise intend but  to be there restore so in Baggots assize e lane er p plead quod to set up  again letter patenes cancelland and show not to who nor where and it be hold  to be very good but it be there plead quod up To give back patenes domini king  and show in special to who they be surrender because it may be to any that  have power at the time of the surrender but a man can restore unto any but  such a one who grant unto he and therefore needs not show unto who he do  restore and these word to set up again cancelland be no new word but usual use  in surrender of patent as it appear by e and in Altonwoods case cook lib and  there the not enter of a vacat noth not hurt for it be the fault of the clark  and sir Maurice Barkleys case in Elizabeth cite before noth not question it  that the enter of a vacat shall be material but the question here be because  he do not deliver they up to be cancel in the Lord Darcies case dyer the jury  do think that there be no surrender at all but the book noth not warrant but  that there may be a surrender without a vacat and he say that at this time the  matter be depend for saint saviour in Southwark if it be a good surrender  without a vacat enter and no opinion as yet give in that case and where it  have be object that there be no actual surrender until that the queen have  agree and and h cite that where a man plead a surrender be must also plead a  agreement yet because the agreement can appear by any record that the party  can procure to be make of it it shall be good although there be no record make  of that agreement yet in this case the queen noth agree as appear by the word  in the second patent how indeed up redditionem acceptam c second admit there  be no actual surrender in this case yet if when the queen do recite the  particular estate and that she have accept the surrender thereof and in  consideration of it she make a grant whether this second patent shall be good  and it seem that it shall and therefore it appear by h that the take of a  second lease shall be a surrender of the former and in Corbets case Elizabeth  dyer lane mark dyer although the first lease be by deed indent and the second  but by word and in Ives case cook lib acceptance of a future lease be a  surrender of a lease in possession and to that purpose be h h assize plea and  other book and in Elizabeth dyer the king grant a house for year and after do  grant to the patentee the custody of the house with a fee and the patentee  accept the fee and it be there doubt if that shall be a surrender of the term  and the matter be compound but be say that he hear that the opinion of the  judge be that the acceptance of the custody and fee be a surrender of the term  by that I do infer that there shall be a surrender by implication aswell where  the king be party as where a common person only first if a surrender be  effectual it be sufficient although it be not formal because it work as much  profit to the king and the surrender in this case be at the same instant that  the queen do seal the letter patent for the estate passes from the queen  without delivery and it appear that the intention of the queen be not to have  any actual possession of that by these word modus to have et to rejoice but it  bath be object in as much as this surrender be at a instant that it shall be  void because that in instant the best shall be take for the king yet it seem  to I that it be good as in the case of e a a man devise burgage land hold of  the king and die without heir this devise be not good against the king because  the devise take not effect until the instant of the devisor death and at that  instant also noth the title of the king begin by death without heir and he  cite Plowden in Fulmerstons case for the exposition of these word not now in  be within the statute of monastery and if in that case issue have be take  whether it have be a surrender or not it shall have be find to be a surrender  because it be a surrender in the law as it be in Thetsores case in the common  plea p Elizabeth rot in waste baron and feme donee in tail make a lease for  life the husband die and the wife disagree to the lease and the issue be if  the husband and wife do lease and it be find that they do not lease because  now by her disagreement it be become in law not the lease of the wife cook lib  butler and baker case accord foe but if the king be to sustain any loss by the  consideration if that be false then shall it make the patent void as it be in  h where the king be deceive in the value so Elizabeth dyer where there be a  loss in be but it be contrary where there grow no loss to the king as h of a  thing pass because the king be not to have benefit of it the Lord lane er p  chandos case be not answer on the other side for there the king do intend to  have the actual possession where in facto he have not yet because that be only  a recital and collection in the matter in law it noth no hurt so in the  principal case and so if the king grant a manor although be bath but a  reversion of it yet it shall pass without the word reversion Elizabeth dyer  and the king patent also shall be so construe that one part may stand with  another videlicet that the Lord seynor now have the estate c noth restore unto  we c the which we do accept c as in sir John molins case Elizabeth cook lord  measne and tenant the tenant be attaint of treason and the king do grant the  land tenendum de we c nest our men et other cap owner fee that per the  condition of a slave ind debt is owed et de jure consuet he shall in that case  hold of the mesne as the tenant hold before for if he shall hold of the king  the word subsequent will be void and for that cause such a construction shall  be make that all may stand together now for the three point admit that the  surrender be not good yet it be aid by the statute of Elizabeth cap which aid  all grant and surrender c to or from the queen the clause for conveyance to  the queen be with restraint but for the conveyance of the queen there be  certain exception our case be within that part of the statute which relate  unto the that year of her reign and our case be within the word of the statute  videlicet surrender and surrender within the statute be such as be surrender  lane to a common intent and therefore where the party have do that in he lie  but some thing be to the perfection of a surrender that be aid by the statute  also by this word assurance in the statute a purchase without deed be not aid  by a good assurance I surrender without deed be aid within the statute or else  the statute shall serve for little or nothing the statute of confirmation of  letter patent have the same word that the statute of Elizabeth bath and upon  Elizabeth t be resolve in of Elizabeth n hussey case that if tenant in tail be  and the reversion be grant to queen Elizabeth this be good and aid by the  statute so if a man grant land to the king but the deed be not enrol this also  be aid by the statute and where a grant shall be good at the commonlaw by a  common person there the like grant make by the king be make good by the  statute and there be a case in the duchy Chamber Trin Elizabeth between  Cavendish and Bateman where the queen do grant turbary within the manor of  lady meadow within the county of Derby unto Bateman for year Bateman thereof  make a meadow and afterward the queen in consideration of the surrender of the  first grant noth grant the same unto he for year by the name of a meadow and  although he make no surrender yet by the take of the grant it be resolve that  it be a good surrender because there it be but of a particular estate but  otherwise it shall be of fee for a fee can be surrender by implication  dodderidge sergeant of the king argue that the defendant be guilty of  intrusion and he divide the case into two part only the first whether there be  a sufficient consideration at the commonlaw to make the second patent void the  second point admit that there be not a sufficient consideration by the rule of  the commonlaw whether the defect thereof be aid by the statute of Elizabeth  and he argue that the surrender which the queen intend to be the consideration  of the grant be a actual surrender already perfect before the grant which noth  plain appear to be so as be take it by the word up redditionem and he say that  he can not so have that word in the preterperfect tense as it will be supply  by a act of the present tense as be pretend videlicet that the surrender be to  be make by the acceptance of a new grant and he vouch h also he think her to  intend a actual surrender for a other reason videlicet for the word we up To  give back et to set up again cancelland the which can be perform without a  actual surrender for otherwise there be no restore and he vouch Elizabeth foe  e foe where it be observe that if a wife do not remain with a adulterer with  her own accord c another reason the queen do intend a actual surrender because  of the word she intention which imply a surrender to have be actual precedent  another reason be for that hereby the acceptance of the second patent there be  no surrender wrought of the former estate in the law until after the  acceptance of the second letter patent and so the queen deceive in the time  and he vouch the case of Totnes in Elizabeth n the king bench and savage case  in h carrels Rep foe and here it appear there be no surrender upon record  precedent unto the second grant also it ought to have be find by a special  verdict that the second letter patent be grant at the lane er p suit of seynor  or otherwise the grant of they to he make no surrender of his former letter  patent and then it follow that they be not surrender yet and where it bath be  object that the queen use these word in the second letter patent quas indeed  letter patenes prediction seynor modus to have et to rejoice and therefore it  must be intend she take notice that the first letter patent be not yet  surrender for then she will not say modus to have et to rejoice he answer that  this word modus signify the time pass or the time present for to pass and the  word to have can be take in a legal sense no otherwise then the word be be  take in Dockwrais case h foe and so these word modus to have et to rejoice  signify no more but that once he have a estate also the queen be deceive in  this word acceptam for she can in the law be say to lane accept of that which  by the law be not vest in her also he say that a actual surrender ought to be  a actual give up of so much as the patentee receive of her grant as it appear  h e brook prerogative e dyer sir Maurice Barklies case Elizabeth sir Ralph  saddler case that a double be not sufficient if the letter patent be surrender  and cancel Elizabeth dyer and he say that the surrender which the queen intend  ought to pass a estate from the party surrender which be not so do here and  where it bath be object that the very delivery in the court make of the letter  patent be a surrender of they by the opinion of davers in h foe he say that  this book be no law as it may appear h foe carrels report although in that  book also vavasour agree with davers and where it bath be object that here be  a actual surrender make yet the intention of the queen ought to be observe to  make it a effectual surrender or otherwise though she have no loss by the  surrender that be make vet be it no effectual surrender as appear by Elizabeth  dyer and so also be the case of the isle of man also sir Henry Seymour do not  in this case all that he may have do for the perfect of this surrender for he  ought to have see this his surrender record as it appear by the book case of  the two h where it appear that if I be bind to levy a fine I ought to sue  forth a writ of covenant or dedimus power and do all such other act as it may  make it a good and perfect fine in law second he take it that the statute of  Elizabeth do no whit aid this case for that make no surrender to the queen to  be a good surrender but only a actual surrender which here be want and the  statute in no sort extend to a surrender in the law for the surrender which  this statute intend to aid ought to be a surrender convey and assure c and  this surrender in the law convey nothing but only extinguish and for that  purpose he put this case if a take a new lease of the queen in by indenture  and this be of his own land this statute of Elizabeth noth not make such a  kind of conveyance in the law by estoppel good to vest the land in the queen  by this estoppel which be a conveyance in the law unto the which the Lord  chief baron Tanfield say insist not upon a labour of that kind for it be plain  enough because the queen be party there can be no estoppel as to any part in  that case also as to that part of his argument Mr Walter agree on the other  side and also be say that if a grant of the queen be void at the commonlaw for  default or want of consideration this statute aid not Walter for the defendant  and he divide the case into four point the first whether the tenant for life  by the king gift by surrender his letter patent have also surrender his estate  second if the surrender in this case make be defective only for want of matter  of circumstance as the enrolment c whether such defect be save by the statute  Elizabeth three whether in this case a actual surrender be the consideration  mere which move the queen to grant or what shall be intend the consideration  in this case fourthly admit that a actual surrender be the sole consideration  in this case then whether a patent shall be adjudge void for default of such  consideration for a false consideration noth not avoid a patent but a false  surmise noth first when the king tenant for life noth surrender or give up his  patent although without deed yet with such circumstance as the law require the  surrender be good for although a surrender of letter patent make by the king  tenant in tail will not make estate tail void or determine as it appear by the  book case of h title surrender and cook the Lord chandos case yet the bare  give up of the letter patent by a tenant for life be a surrender of his estate  so here in this ca e be 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 lane er p appear by e 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 bath a rend or other thing which can pass but by  deed yet a surrender of such a rend shall be good by a lane bare delivery up  of the deed if be have but a estate for life in the rend and this also  although it be but to the disseizsor of the land out of which c the same law  he take it of a particular tenant for life of year also h brook patent it be  make a doubt whether the estate tail of the king donee be determine and go by  surrender of the letter patent and he refer that if think worthy of a doubt  whether it shall be a good surrender of a estate tail they will have hold it  clear a surrender for a estate for life and it be admit Elizabeth dyer foe  MackWilliams case that if in the principal case if a vacat or cancellation  have be the surrender have be good actual without question and sir Maurice  Barkleys case cite on the other part prove the same also for there it be admit  that if the letter patent have be give up there have be a perfect surrender  and h fol Belknap hold that a surrender may be by word which be to be intend  by give up the patent and that appear by Rolfs case in dyer that a voluntary  surrender needs no constat also where it have be object that the special  verdict in this case bath not find in what court the surrender be make he  answer that the law shall intend it to be make in the same court from whence  the letter patent do issue for a surrender can be good be make in another  court and therefore it must needs be intend the same court and be vouch Edward  foe and Elizabeth plines case and covel and cabels case in banc king Elizabeth  wherein a special verdict it be hold that all thing necessary for the perfect  of that the jury bath find to be do must be necessary intend concurrent second  the want of circumstance in a surrender be perfect and supply by the statute  of Elizabeth for although matter of substance be not aid within this statute  yet matter of circumstance be aid and be say that all the defect in this case  be matter of circumstance and to prove that the defect in this case be only in  circumstance he say that there be three principal defect in conveyance which  be mere matter of circumstance and aid within this statute the first be mere  want of form in a conveyance and that such a defect be aid he cite hussy case  to be adjudge accord the second be where word be want in a conveyance and that  such a conveyance be aid by this statute he cite the opinion of Popham and  gawdy in Elizabeth in a cause depend in the chancery the three matter of  circumstance be where there be want of some matter concern the execute of a  estate and that such defect be only matter of circumstance and aid within this  statute be cite Morley and Whartons case to be adjudge Elizabeth n the common  plea that the default of not enrol be aid by this statute and mack William and  Kemp case cite in dyer before prove this to be but matter of circumstance and  for that he think the surrender in the principal case want nothing but  enrolment be aid by this statute also in the argument of the second point he  show what defect in conveyance shall be account matter of substance and so not  aid by this statute of Elizabeth and to this purpose be hold that all  disability of the person in a grant be matter of substance and so hot aid  within this statute and be cite twine case Elizabeth in the exchequer to be  accord second he hold that the nature of a assurance be not aid by this  statute and therefore if a man have power to grant a estate by fine and he  noth it by deed this be not aid by the statute for this be defective in matter  of substance and be cite wiseman case and sir Hugh Cholmleys case in cook also  he say if a man give land to the kin and his heir to have ten year after such  grant this be not make good by the statute three whereas it may be collect  that because it be find in the special verdict that a actual surrender be the  cause which move the queen to grant or that it appear to be the cause he hold  that no consideration plain appear but only by relation to a consideration  before mention and he say that these word use by the queen videlicet modus to  have et to rejoice show that the queen take notice the state be still enjoy  notwithstanding the delivery up of the lane letter patent and therefore it can  be intend by the verdict that the queen intend a actual surrender before make  for the consideration but whereas it have be object of the other part that the  word modus noth often signify the time pass and some instance accord to  grammatical construction be give in proof thereof and thereupon they will  infer that the queen by these word modus to have do intend no other but late  have or enjoy to that he lane er p give a double answer to the first he say  that there be no cause show or instance give that modus to have join together  will signify a time pass though take several they may signify so much which  make a plain difference betwixt those instance and this present case second  admit in a grammatical construction they do signify as the other side will  have it yet the judge ought to adjudge thereof accord to the most natural  sense of these word in common understanding and that so it may be do he vouch  one Talbot case in Elizabeth in banc king in which after the judge have confer  in the court with diverse learned scholar touch the grammatical construction  of a word use in a conveyance they afterward notwithstanding do wave the  grammatical construction and adjudge the word to signify in law accord to the  common receive sense of the word and accord to this he vouch h where the word  uterque receive the like construction also be vouch the Elizabeth dyer fol  where it be admit that the word modus be to be take in the present tense and  to this purpose he also vouch Billings case in h and Bozuns case Coo lib and  then he conclude that in as as the special verdict have definitive find no  consideration but general for the consideration above express he hold that the  second patent be good for a patent can be void because there be no  consideration to move the king to grant but a patent may be void as be pretend  for a false consideration which be not in this case and therefore c fourthly  admit that the consideration in this case be for a actual surrender before  make and that in this case no such actual surrender be before make eethe hold  that in this case the second lease be good notwithstanding the false  consideration for it appear by h brook title patent that a patent shall never  be void for a false consideration but by reason of a false surmise it may but  he confess this difference be general deny because a patent shall be void by  reason of a false consideration but he say that the difference be infinite  also upon this ground for some take a difference where a consideration be real  and where it be personal and they hold that a real consideration be false  shall not avoid the grant but otherwise of a personal and so they take the  book of h before cite to be good law and upon this difference other also have  take a difference where the consideration be to come to the king himself and  where it be to come to a stranger other also have take a difference where the  consideration be of a thing valuable and where it be not of value yet they  take a difference where that be pass and execute and where it be to come or  executory but he say that although diverse of these difference seem to be good  with great reason and be back with some authority yet he need not to take  advantage of any of they for the maintenance of this case and for that he take  this general difference for the maintenance of this patent videlicet that if  the consideration be such which bring a benefit or commodity to the king and  this be false that this avoid the grant but if it bring no commodity to the  king although it be false yet the grant be good and to prove this diversity be  cite Harris and wing case to be adjudge in banc king and Barwicks case cook  lib and sir Hugh Cholmleys case cook lib to be adjudge accord of a false  recital and he say although it be admit that the consideration which the king  intend to have be a actual surrender yet in as as this can be intend a thing  more to his advantage then a surrender in law the which plain appear to be in  this case that the patent be good and for that be hold that the second lease  shall not be avoid for such a falsity and also he say that lane this case be  more strong of his side then any case which may be cite in as as the king have  no discommodity or loss by the falsity of the consideration but in this case  also he shall be at a loss if the second lease be not good for the second  lease reserve a great rend to the king then be reserve by the first and  therefore it be for his benefit that the law shall allow of the second lease  to the intent it may make a surrender of the former lease for the king  advantage and if the king grant Probus man de render rend they be by this  grant impliedly make a corporation for the benefit of the king to render he  the rend whereas otherwise the grant will be void and so be take it in the  principal case although the grant shall be void by reason of the false  consideration yet it shall be good to this purpose for the king benefit and  after boundary mich year sexto James king this case be argue again and  Nicholas sergeant for the defendant say that the sole point of the case be if  the consideration of the lease make in Elizabeth be good or not and this be  express to be tam in consideration up redditionis predict how pro other  Causiis lane er p et gaze of looking c then it be to be consider if here be  such a surrender as be mean to be within the intent of the consideration of  the queen and he say that in this case here be a good surrender in law clear  by the book of h for in all case where a termer for year accept a lease of he  in reversion as here the Lord seynor do then this be a surrender in law of his  first interest but the earl of Salisbury lord treasurer say that this be not  proper a surrender of this ancient term but a extinguishment thereof to which  the lord chief baron Tanfield agree and sergeant Nichols further say that the  consideration which move the queen to her grant be only the sufficient  surrender of the precedent estate of the Lord seynor and not the restore of  the letter patent and therefore although it be admit that here be not a  sufficient restore of the letter patent nor a actual surrender by this mean  yet here be a effectual surrender by the operation of law and then this be the  sole consideration which move the queen to her grant the not sufficient  restore of the letter patent be not material for he say it seem to he that in  rei in point of fact the particular estate can be sufficient surrender by this  bare give up of the letter patent by the tenant for life as it appear by  Walshes case cite in Altonwoods case cook lib and therefore he insist not upon  that second he argue that a recital in the king patent of a thing material if  it be false and come by information of the party be all one as a false  consideration and not otherwise and he say that it appear by brook title  patent plan that all consideration valuable although they be false do not  avoid a patent as where the king g ant land prodecem scales Himself unbound  although that in facto this be false yet the grant be good also it appear by h  and sir Thomas wroths case and by e fol that a consideration execute avoid not  a grant although it be false but he say that it appear by the case of  Elizabeth dyer that if the king make a lease in consideration of a surrender  of a precedent lease which in truth be void by some that the king may avoid  the lease but other contrary because it be not do upon the suggestion of the  party but for a consideration execute and the surrender of the estate  precedent be the material cause and consideration of the grant and he say that  although in this case there be not a good surrender of the letter patent yet  the consideration be only the surrender of the estate that be not material for  as it be say in Altonwoods case cook lib if the king in consideration only of  the surrender of precedent patent make a grant in this case there needs no  averment of a estate for the surrender be not material of the letter patent  also it appear Cholmleys case cook lib that if the king recite a estate to be  make with condition although that at the same time of the recital this be not  conditional yet if once this be conditional the king be not deceive although  the condition be now release and he cite also the Lord chandos case cook lib  where it appear that lane if the king recite a thing true which come not of  the information of the party this shall not hurt the grant except it be part  of the consideration and he say that Harris and wing case differ from this  case for there the king have a tenant who hold a tenement by the yearly rend  of six pound and another tenement of he by the yearly rend of nineteen pound  and be make a new lease of both those to the say tenant without any recital of  the former lease reserve but nineteen pound for both and there it be adjudge  that the second lease be not good but he say that the reason of that judgement  be not because the ancient lease be not recite but by reason that a loss in  the rend come to the king and so by intendment he be deceive and this be also  upon the matter the reason of the resolution of Barwicks case and also in  MackWilliams case for there be not a surrender of the estate as the king  intend which ought to be but in our case the estate be well surrender clear  and be think that these word modus to have may well stand with the king intent  aswell to a surrender in law as to a actual surrender the attorney general to  the contrary first for the recital that the information of the party be that  the king shall have a actual surrender and so be the king intent collect upon  the information of the party second that here be not any actual surrender  three that by consequence it follow that the queen be deceive fourthly here be  no surrender in law in this case five although here be a surrender in law yet  that be not sufficient to make the grant good to the first point be say that  always a familiar construction ought to be make of the king grant and  therefore if the king grant all his portion of tithe in d this noth not pass  his lane er p parsonage in d although he have no other tithe there so if the  king grant all his titheable land within the manor of b although the land of  coppiholders be parcel of the demesne of the manor of b yet these land in such  case do not pass cook lib Bozuns case and cook lib Altonwoods case foe also it  appear by the plead in Plowden in Wrothesleys case and in Adam case and also  in Fulmerstons case that although the ancient particular estate be go in law  by the acceptance of a new estate yet it ought not to be plead as a surrender  and therefore it shall not be construe that the king intend such a surrender  which pleader in their plead do not account a surrender also he say that in  regard that the queen say how indeed up redditionem acceptam it seem by that  that she do not intend a surrender in law and therefore accept nothing but  give a estate c and must be mean such a surrender to which she be party by her  acceptance also where the word be modus to have et to rejoice and therefore it  be infer that the queen intend a estate contain in the patentee this be true  for although that the queen intend a actual surrender precedent to be make by  the patentee yet his estate continue against the queen until a acceptance of a  surrender by her although also this may be call a surrender like unto a  surrender of a benefice until a acceptance by the ordinary also although it be  find that the queen make a new lease or letter patent of the say land to the  say Lord seynor yet it appear not that the new letter patent be accept by the  Lord seynor until a month after the make of they when be make a lease to  Johnson and until that time without question there be no surrender either in  fact or in law and where it have be object that these word modus to have imply  only the present time he say that the word modus will always signify such a  time as the verb with which it be join will signify and therefore Cicero say  modus hoc malum in haec rempublicam to go into also the word jam et nunc be of  such signification as this word modus be and these word be always govern by  the verb as jam go for sale c so in the bible the story of naamam and Gehesey  jam modus to come two behold two young man be come to I c and as to the second  point it be clear that here be not any actual surrender for the king can take  by a actual surrender without matter of record and therefore it lane be hold  in the Lord Stanleys case that the king take nothing although his officer by  his command do seize a man land into their hand for the king use also he say  that this appear by the two e and Elizabeth dyer if a man come and say that he  surrender his office and a memorandum be record thereof but the patent be not  deliver up it seem this be not sufficient to make a surrender so on the other  side if the patentee make a deed purport as yet it appear by of Elizabeth dyer  if the deed be not enrol it be a good surrender and he agree to that which  have be object against he that although that the jury do not find in what  court the restore of the patent be yet it ought to be intend to be make in  chancery but he say that the jury do not find any time when the surrender be  make and that be a thing material to be find as it appear in Kemp case and  MackWilliams case before three a actual surrender be in the king new letter  patent urge to be make shall be intend to be part of the consideration which  move the king to a new grant and be vouch Elizabeth dyer where a lease be  recite which need not and in facto the say lease be a void lease in law and  therefore the new lease make be also void h strong here where a actual  surrender be recite to be make fourthly be say that the sole reason in Harris  and wing case be that the first lease ought to have be recite for if the king  make a lease and after make another lease of the same land to the same lessee  the first lease be in be at the time of the acceptance of the new lease as  appear by Fulmerstons case in Plowden and therefore if in such case there be  not a good recital of the lease in be the second lease be not good and so the  acceptance of it make no surrender of the former lease and he say that the  recital of the queen in the principal case be a show of a former lease destroy  and not in be and then no actual surrender be make the say former lease  contrary to this recital be in be still and so the recital be false and  consequent the second lease be a void lease and so this work no surrender in  law of the old lease and so be conclude the four point that here be no  surrender in law and he hold that if there have be a good surrender in law yet  this have not make the patent good and where it be object that a consideration  execute though valuable be false avoid not a patent he say it appear in Edward  title pardon brook that a consideration of service in lane er p the king  patent ought to be allege to have be perform nevertheless it appear in sir  Thomas worth case in Plowden that such a particular service be allege in the  patent to be execute needs not a averment that it be perform for the patent be  good although such consideration be false but be say that in this case the  precedent surrender be the material consideration and therefore there ought  not to be any material variance in the form of the consideration and so be the  difference betwixt this case and worth case and therefore if the king make a  grant to a in consideration that he have release by deed enrol and he have  release by fine here be a fail of the consideration that he have release by  deed enrol when as he have release by fine and so the grant be void and be say  that as it appear by the judgement give in welshes case cite in Altonwoods  case that no equity ought to be observe in the king grant against his express  word so here no knight ought to be observe against the king otherwise then his  plain word import and therefore here his word import and intend a actual  surrender precedent which ought not to be satisfy with a surrender subsequent  and after upon the motion of the earl of Salisbury lord treasurer of England  this case be refer to the lord privy seal and the Lord of Worcester who award  to sir Robert Johnson per annum during his life and the life of his wife for  all his interest but the earl of Salisbury lord treasurer seem that the matter  in law be against sir Robert Johnson although that equity be for he to which  opinion Tanfield chief baron also incline in regard there be not here any  surrender in the case but a extinguishment only lane hill James in the  exchequer it be move by one whether the king patentee of pirate good seize  some good of pirate shall pay custom for they or not and it be hold by the  baron that he shall pay none for in as as they be good give by law unto the  king no reason that he shall have custom for his own good