to the King to license as he thought fit 355 2. The intent of the Act being That every man should not sell Wine that would his Majesty could not better answer the ends of the Act than to restrain the sellers to Freemen of London to the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it ibid. 13 El. c. 12 Not reading the Articles 1. Immediately upon not reading the Articles the Incumbent is by this Statute deprived ipso facto 132 2. Upon such Deprivation the Patron may present Ante 14. and his Clerk ought to be admitted and instituted but if he do not no Lapse incurrs until after Six months after notice of such Deprivation given to the Patron 132 3. Where the Incumbent subscribes the Articles upon his Admission and Institution that makes him perfect Incumbent pro tempore 133 4. But if he hath a Benefice and afterwards accepts another and doth not subscribe nor read the Articles then he never was Incumbent of the second and consequently never accepted a second Benefice to disable him from holding the first 132 133 134 1. That all Leases by Spiritual persons of Tythe c. 13 Eliz. cap. 10. Concerning Leases to be made by Ecclesiastical persons parcel of their Spiritual Promotions other than for One and twenty years or three Lives reserving the accustomed yearly Rent shall be void 2. This Statute intended that Leases in some sense might be made of Tithes for One and twenty years or three Lives and an ancient Rent Reserved but of a bare Tythe only a Rent could not be reserved for neither Distress nor Assise can be of such a Rent 203 204 3. Therefore a Lease of Tythe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intent of the Statute 204 7 Jac. cap. 5.21 Jac. cap. 12. For Officers to be sued in the proper County 1. The question upon these Acts was Whether an Officer or any in their assistance that shall do any thing by colour of but not concerning their Office and be therefore impleaded shall have the benefit of these Acts. 2. Or if they are impleaded for any thing done by pretence of their Offices and which is not strictly done by reason of their Office but is a mis-seazante Whether they may have the like benefit 3. Without this Act the Action ought to be laid where the Fact was done and the Act is but to compel the doing of that where an Officer is concerned that otherwise Fieri debuit 114 4. The Statute intends like benefit to all the Defendants where the Fact is not proved to be done where the Action is laid as if the Plaintiff became Non-suit or suffered a Discontinuance viz. that they should have double costs 117 12 Car. 2. cap. 4. For granting Tonnage and Poundage to the King 1. Those Wines which are to pay this Duty according to the Act must be Wines brought into Port as Merchandise by his Majesties Subjects or Strangers 165 2. But Wines which are by their kind to pay Duty if they shall be brought into Ports or Places of this Kingdom neither by his Majesties Subjects nor Aliens they are not chargeable with this Duty ibid. 3. If they are not brought into the Ports and Places as Merchandize viz. for Sale they are not chargeable with the Duty 165 170 4. Wines coming into this Kingdom as Wreck are neither brought into this Kingdom by his Majesties Subjects nor Strangers but by the Wind and Sea 166 5. Wreck'd Goods are not brought into this Kingdom for Merchandise viz. for Sale but are as all other the Native Goods of the Kingdom for sale or other use at the pleasure of the owner ibid. 6. All Goods chargeable with the Duties of this Act must be proprieted by a natural born Merchant or Merchant Alien and accordingly the greater and lesser Duty is to be paid 166 168 7. All Goods subject to this Duty may be forfeited by the disobedience and mis-behaviour of the Merchant-proprietor or those entrusted by him 167 1. The intent of this Statute is to priviledge the Father against common Right 12 Car. 2 cap. 24. To enable the Father to devise the Guardianship of his Son to appoint the Guardian of his Heir and the time of his Wardship under One and twenty 179 2. Such a special Guardian cannot transfer the custody by Deed or Will to any other 179 3. He hath no different Estate from a Guardian in Soccage but for the time the of Wardship 179 4. The Father cannot by this Act give the custody to a Papist 180 5. If the Father doth not appoint for how long time under One and twenty years his Son shall be in Ward it is void for Uncertainty 185 6. The substance of the Statute and sense thereof is That whereas all Tenures are now Soccage and the Law appoints a Gardian till Fourteen yet the Father may nominate the Gardian to his Heir and for any time until his Age of One and twenty and such Gardian shall have like remedy for the Ward as Gardian in Soccage at the Common Law 183 Supersedeas 1. If a priviledged person as an Attorney c. or his Menial Servant is sued in any Jurisdiction forreign to his priviledge he may have a Supersedeas 155 Surplusage 1. Surplusage in a special Verdict 78 Suspension 1. A Suspension of Rent is when either the Rent or Land are so conveyed not absolutely and finally but for a certain time after which the Rent will be again revived 199 2. A Rent may be suspended by Unity for a time and afterwards restored 39 Tayl See Title Warranty 1. SEE an Exposition upon the the Statute de Donis 370 371 372 c. 2. What shall be a good Estate Tayl by Implication in a Devise 262 3. A. having Issue Thomas and Mary deviseth to Thomas and his Heirs for ever and for want of Heirs of Thomas to Mary and her Heirs This is an Estate Tayl in Thomas 269 270 4. A Copyholder in Fee surrenders to the use of F. his Son and J. the Son of F. and of the longest liver of them and for want of Issue of J. lawfully begotten the Remainder to M. here it being by Deed J. had only an Estate for Life but had it been by Will it had been an Estate Tayl by Implication 261 5. The Warranty of the Tenant in Tayl descending upon the Donor or his Heirs is no barr in a Formedon in the Reverter brought by them although it be a Collateral Warranty 364 365 6. The lineal Warranty of Tenant in Tayl shall not bind the Right of the Estate Tayl by the Statute de Donis neither with or without Assets descending 365 Tenures See Title Estates  Testament See Devise 1. A Custody as a Gardianship in Soccage is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms 182 Title 1. When you would
for the Damages in Debt though by several Originals But it may be said That in a Writ of Error in this kind the foundation is destroy'd and no such Record is left Drury's Case 8. Rep. But as to that in Drury's Case 8. Rep. an Outlawry issued and Process of Capias upon the Outlawry the Sheriff retorn'd Non est inventus and the same day the party came into Court and demanded Oyer of the Exigent which was the Warrant of the Outlawry and shew'd the Exigent to be altogether uncertain and insufficient and consequently the Outlawry depending upon it to be null And the Court gave Iudgment accordingly though the Record of the Outlawry were never revers'd by Error which differs not from this Case where the Order of Commitment is Iudicially declar'd illegal though not quasht or revers'd by Error and consequently whatever depends upon it as the Fine and Commitment doth and the Outlawry in the former Case was more the Kings Interest than the Fine in this The Chief Justice deliver'd the Opinion of the Court and accordingly the Prisoners were discharg'd Hill 23 24 Car. II. B. C. Rot. 615. Edmund Sheppard Junior Plaintiff In Trespass Suff. ss against George Gosnold William Booth William Haygard and Henry Heringold Defendants THE Plaintiff declares for the forcible taking and carrying away at Gyppin in the said County the Eight and twentieth of January 22 Car. 2. Five and twenty hundred and Three quarters of a hundred of Wax of the said Edmunds there found and keeping and detaining the same under Arrest until the Plaintiff had paid Forty nine shillings to them the said Defendants for the delivery thereof to his Damage of 40 l. The Defendants plead Not Culpable and put themselves upon the Country c. The Jury find a Special Verdict 1. That before the Caption Arrest and Detention of the said Goods and at the time of the same Edmund Sheppard the younger was and is Lord of the Mannor of Bawdsey in the said County and thereof seis'd in his Demesne as of Fee and that he and all those whose Estate he hath and had at the time of the Trespass suppos'd in the said Mannor with the Appurtenances time out of mind had and accustomed to have all Goods and Chattels wreck'd upon the high Sea cast on shore upon the said Mannor as appertaining to the said Mannor 2. They further say The said Goods were shipped in Forraign parts as Merchandise and not intended to be imported into England but to be carried into other Forraign parts 3. That the said Goods were wreck'd upon the high Sea and by the Sea-shoar as wreck'd Goods cast upon the Shoar of the said Mannor within the same Mannor and thereby the said Edmund seis'd as wreck belonging to him as Lord of the said Mannor They further find That at the Parliament begun at Westminster the Five and Twentieth of April the Twelfth of the King and continued to the Nine and Twentieth of December following there was granted to the King a Subsidy call'd Poundage Of all Goods and Merchandises of every Merchant natural born Subject Denizen and Alien to be exported out of the Kingdom of England or any the Dominions thereto belonging or imported into the same by way of Merchandise of the value of Twenty shillings according to the particular Rates and Values of such Goods and Merchandises as they are respectively rated and valued in the Book of Rates intitled The Rates of Merchandise after in the said Act mentioned and referr'd to to One shilling c. Then they say That by the Book of Rates Wax inward or imported every hundred weight containing One hundred and twelve pounds is rated to Forty shillings and hard Wax the pound Three shillings four pence They find at the time of the Seisure of the Goods That the Defendants were the King's Officers duly appointed to collect the Subsidy of Poundage by the said Act granted and that for the Duty of Poundage not paid at the said time they seis'd and arrested the said Goods until the Plaintiff had paid them the said Fine of Forty nine shillings But whether the Goods and Chattels aforesaid so as aforesaid wreck'd be chargeable with the said duty of Poundage or not they know not And if not They find the Defendants Culpable and Assess Damages to the Plaintiff to Nine and forty shillings ultra misas custagia And if the said Goods be chargeable with the said Duty they find the Defendants not Culpable It is clear Dyer 31 H. 8. 43. b. n. 22. That formerly in the times of Henry the Eighth Queen Mary and Queen Elizabeth it was suppos'd that some Customes were due by the Common Law wherein the King had an Inheritance for certain Merchandise to be transported out of the Realm and that such Customes were not originally due by any Act of Parliament so is the Book 31 H. 8. It was the Opinion likewise of all the Justices in the Chequer Chamber when Edward the Sixth had granted to a Merchant Alien That he might Transport or Import all sorts of Merchandise not exceeding in the value of the Customes and Subsidies thereof Fifty pounds paying only to the King his Heirs and Successors pro Custumis Subsidiis oneribus quibuscunque of such Marchandises so much and no more as any English Merchant was to pay That this Patent remained good for the old Customes Dyer 1 Mar. f. 92. a. n. 17. wherein the King had an Inheritance by his Prerogative but was void by the Kings death as to Goods customable for his life only by the Statute of Tunnage c. So upon a Question rais'd upon occasion of a new Imposition laid by Queen Mary upon Clothes Dyer 1 Eliz. f. 165. a. b. n. 57 the Judges being consuited about it 1 Eliz. The Book is Nota That English Merchants do not pay at Common Law any Custome for any Wares or Merchandises whatever but Three that is Woolls Woolfells and Leather that is to say pro quolibet sacco lanae continent 26 pierres chescun pierr 14 pound un demy marke and for Three hundred Woolfells half a Mark and for a Last of Leather Thirteen shillings four pence and that was equal to Strangers and English Merchants This was in those several Reigns the Opinion of all the Iudges of the times whence we may learn how fallible even the Opinion of all the Judges is when the matter to be sesolved must be clear'd by Searchers not common and depends not upon Cases vulgarily known by Readers of the Year Books For since these Opinions it is known those Customes called the Old or Antiqua Custumae were granted to King Edward the First in the Third year of his Reign by Parliament as a new thing and was no Duty belonging to the Crown by the Common Law But the Act of Parliament it self by which this custome was granted is no where extant now but undeniable Evidence of it appears For King Edward
the First by his Letters Patents Dated November the Third of his Reign reciteth Cum Praelati Magnates tota communitas quandam novam consuetudinem nobis haeredibus nostris de Lanis Pellibus Coriis viz. de sacco Lanae dimidium Marcae de 300 pellibus dimidium Marcae de lasto Corii 13 s. 4 d. concesserint c. whence Sir Edward Coke rightly observes the Grant was to Edward the First himself and his Heirs from the words Nobis haeredibus nostris in the Patent Coke Mag. Chart. c. 30. f. 58 59. 2. That no such Custome was before from the words quandam novam custumam and some other pertinent Observations he makes And he cites the year of the Letters Patents truly to be the Third year of Edward the First which was the year of the Statute of Westminster the First but he makes the Date of the Letters Patents to be November the Tenth of that year which in truth was November the Fifteenth He cites likewise the Patent Rolls of Edward the First for it M. 1. but omits the n which is n. 1. also He also cites the Fine Roll of 3 E. 1. to the same purpose M. 26. Rot. Pat. 3 E. 1. M 1. n. Rot. finium 3 E. 1. M. 24. But his citation differs in remarkable things from the Patent Roll 3 E. 1. which runs Cum Praelati Magnates tota Communitas Mercatorum Regni nostri and not tota Communitas nobis concesserint quandam novam consuetudinem de lanis pellibus Coriis tam in Anglia quam in Hibernia Wallia Regnum nostrum exeuntibus which are omitted also in Sir Edward Coke in perpetuum nobis haeredibus nostris capiendam sicut in forma inde provisa communiter concessa plenius continetur and the particulars are mentioned of the Grant It appears by the Preface of it the Statute of Westminster the First was made 3 E. 1. A son primer Parliament general apres son coronment lendemaine de la clause de Paschae that is on the Munday of Easter utas in the Third year of his Reign so as there was no Parliament of Edward the First before this his Third year The antiquae custumae upon Wools Woolfells and Leather were granted to Edward the First by Parliament as appears both by the Patent and Fine Rolls of 3 E. 1. Dated November the Fifteenth which must be by a Parliament before the Date of the Letters Patents whence it follows they were granted by the Statute of Westminster the First or by the same Parliament and probably therefore it was by a Rider as Proviso's now usually are annex'd by tacking to the Bill or Law of Westminster the First and from it after casually lost So as it is now clear That Antiqua Custuma upon Woolls Pells and Leather was not by the Common Law but by Act of Parliament 3 E. 1. And if any scruple remain'd of a power at Common Law to charge Merchandise in any other manner the Act of the Twelfth of the King which grants him Tunnage and Poundage clears it from question in these words And because no Rates can be imposed upon Merchandise Imported or Exported by Subjects or Aliens but by common consent in Parliament it Enacts that Rates upon Merchandise shall be according to the Book of Rates establisht by the Act c. Vpon this Supposition That by the Common Law Merchandise might be charged with Custome as Woolls Pells and Leather were Queen Mary by her Absolute Prerogative Dyer 1 Eliz. f. 165. b. laid an Imposition of Fourteen pence upon a Cloath Transported by Natives and One and twenty pence by Strangers as appears in Dyer 1 Eliz. And upon the same ground King James about the Twelfth of his Reign laid an Imposition upon Currans but these obtain'd not for Law and so possibly like Impositions might be laid on Wax or any other Merchandise but no such were laid de facto unless by the Grants of Tunnage and Poundage to the Kings for life by Parliament Nor is it a true Inference That if the Antiquae Custumae were at Common Law as every thing in one sense is taken for Common Law if it be Law when it appears not to be by Act of Parliament therefore it was by Arbitrary Imposition of the King for it might be by Act of Parliament not extant as this of 3 E. 1. and in truth most of the Common Law cannot be conceived to be Law otherwise than by Acts of Parliament or Power equivalent to them whereof the Rolls are lost for alwaies there was a power and practise of making new Laws 1. But it is not pretended that any Custome is laid upon Wax in any manner by the Common Law nor by Statute but by that of Tunnage and Poundage the Twelfth of this King 2. This Seisure and Arrest appears by the Special Verdict to be for Poundage according to the Book of Rates by the Statute made the Twelfth of the King cap. 4. which gives Two shillings to the King for every hundred weight of Wax and therefore not for any other Duty 3. At the Common Law wreck'd Goods as these are found to be could not be chargeable with Custome if other Goods were for at the Common Law all wreck was wholly the Kings and he could not have a small Duty of Custome out of that which was all his own West 1. c. 4. Vid. Stat. And by Westminster the First where wreck belongeth to another than to the King he shall have it in like manner that is as the King hath his It remains clear then That Wax is a Merchandise subject to pay the duty of Poundage by and according to the Act of the Twelfth of this King and not otherwise The Question then before us being narrow'd will be Whether Wax or any other Goods subject to the Duty of Tunnage and Poundage by the Act and Book of Rates the Twelfth of the King ship'd in Forraign parts as Merchandise not intended for England but for other Forraign parts proving to be wreck and cast by the Sea upon a Mannor to which wreck belongs by Prescription ought to answer the Duty of Tunnage and Poundage as if Imported as Merchandise in Ships and not as wreck for if any kind of Merchandise wreck'd be subject to the Duty all Merchandise mentioned in the Book of Rates is To resolve this Question I shall observe That all wreck cast on shoar in the Kingdom must be conceived as Goods Imported for though Goods Exported may be wreck'd at Sea equally as Goods to be Imported yet Goods Exported if wreck'd are not cast upon any shoar of the Kingdom as wreck under the notion of being Exported but under the notion of being some way Imported So as in this Question of wreck to speak of any Goods or Merchandise quatenus Exported will be useless And because the Resolution of this Case depends upon the words and intendment of the Act
of Twelfth of the King c. 4. And that if any Merchandise in kind subject to the Duties by that Act proving wreck cast on shoar may be charg'd with the Duty every Merchandise within the Act proving wreck will be charg'd with it and if any wreck'd Goods be free all wreck'd Goods are free for the Act makes no difference in the kinds or species of the Merchandise I shall therefore recite some Clauses of the Act. 12 Car. 2. c. 4 The first is That there is given to the King of every Tun of Wine of the growth of France or of any the Dominions of the French King that shall come into the Port of London and the Members thereof by way of Merchandise by your natural born Subjects the Sum of Four pounds and Ten shillings of currant English mony and so after that rate And by Strangers and Aliens Six pounds of like mony And of every Tun of like Wines which shall be brought into all and every the other Ports and Places of this Kingdom and the Dominions thereof by way of Merchandise by your natural born Subjects the Sum of Three pounds and by Aliens Four pounds and Ten shillings From those words I observe That Wines liable to pay Tunnage by the Act must have these properties 1. They must be Wines which shall come or be brought into the Ports and Places of the Kingdom 2. They must come or be brought into such Ports or Places as Merchandise that is for sale and to that end for no other conception can be of Goods brought as Merchandise 3. They must come and be brought as Merchandise and for sale by the Kings natural born Subjects or by Strangers and Aliens as distinguisht from the natural Subjects 4. The Duty payable to the King is to be measur'd by the quality of him that imports the Commodity that is if the Importer be a natural Subject he pays less to the King and if an Alien more 5. All those Wines charg'd with the Duty by the Act so to come or be brought into the parts or places of the Kingdom are to be Forraign As of the growth of France the Levant Spain Portugal Rhenish Wines or of the growth of Germany 1. Whence it follows That Wines of Forraign growth and which by their kind are to pay Duty if they shall come or be brought into the parts or places of the Kingdom neither by the Kings natural Subjects nor by Aliens they are not chargeable with the Duties of this Act. 2. If they be not brought into the Ports and Places of the Kingdom as Merchandise viz. for sale they are not chargeable with the Duty But Wines or other Goods coming or brought into the Realm as wreck are neither brought into the Kingdom by any the Kings natural Subjects nor by any Strangers but by the Wind and Sea for such Goods want a Proprietor until the Law appoints one 3. Wreck'd Goods are not brought into the Kingdom being cast on shoar as Merchandise viz. for sale but are as all other the Native Goods of the Kingdom indifferent in themselves for sale or other use at the pleasure of the Proprietor 4. All Goods Forraign or Domestique are in their nature capable to be Merchandise that is to be sold but it follows not thence That wheresoever they are brought into the Kingdom they are brought as Merchandise and to be sold or should pay Custome for they are transfer'd from place to place more for other uses than for sale Nor are Goods which are brought to the Markets of the Kingdom to the end to be sold therefore to pay Custome for so all the Goods of the Kingdom would be customable but they must be Goods brought ab extra within the intention of the Act or for Exportation to be carried out of the Kingdom 5. All Goods charg'd with the Duties of the Act must be proprieted by a Merchant natural born or Merchant Alien and the greater or less Duty is to be paid as the Proprietor is an Alien or Native Merchant for so are the words of the Act in the Clause for Poundage of all manner of Goods and Merchandise of every Merchant natural born Subject Denizen and Alien to be brought into the Realm of the value of every Twenty shillings of the same Goods according to the Book of Rates But wreck'd Goods are not the Goods of any Merchant natural born Alien or Denizen whereby the Duty payable should be either demanded distinguisht or paid Therefore a Duty impossible to be known can be no Duty for civilly what cannot be known to be is as that which is not And it is a poor shift to say The Lord of the Mannor who hath the wreck is Merchant Proprietor For if so I ask Is he an Alien Merchant Proprietor or a Native If he be a natural Subject as he must be having his Mannor he cannot be an Alien and consequently the King can have no Alien Duty of wreck'd Goods but Goods intended by the Act to be charg'd with the Duty might be indifferently the Goods of Aliens or Natives But to clear this more put the Case The Act had only charg'd Merchandise imported by Aliens and not by Natives with the Duty Then the King could have had no Duty from wreck'd Goods at all for they could not be the Goods of an Alien Merchant Nor is wreck brought into the Mannor by the Lord more than a Waif or Estray is which if brought thither by him is no Waif or Estray Besides it is clear The Lord of a Mannor is no more a Merchant Native or Alien by reason of the property he hath in wreck Goods than he is a Merchant Native or Alien by the property he hath in his Horses or Cows for his property in a wreck is not qua Merchant of any kind but qua Lord of his Mannor and every Proprietor of Goods by what Title soever is as much Merchant as he 6. All Goods subject to the Duty of Tunnage and Poundage may be forfeited by the Disobedience and Mis-behaviour of the Merchant Proprietor or those trusted by him by the Act The words are If any Merchandise whereof the Subsidies aforesaid shall be due shall at any time be brought from the parts beyond the Sea into any Port Place or Creek of this Realm by way of Merchandise and unshipped to be laid on Land the Duties due for the same not paid nor lawfully tender'd nor agreed for according to the true meaning of this Act then the same Goods and Merchandises shall be forfeit to your Majesty 1. But wreck'd Goods cannot be imported into any Creek or Place of the Realm by way of Merchandise and unshipped to be laid on Land for if so imported and unshipped to be laid on Land it is no wreck and therefore are not Goods forfeitable by the Mis-behaviour of any within the Act and consequently not Goods intended to be charged with the Duties by the Act. 2. By this Clause the Owner or
Proprietor of Goods chargeable with the Kings Duty is to pay or agree for the Duty with the Customers before the unshipping or landing of the Goods else they are forfeited Et sunt alia quaedam quae in nullius bonis esse dicuntur sicut Wâ—eccum Maris grossus piscis c. Bract. l. 3. de Coron f. 120. c. 3. n. 4. Constables C. 5. Rep. f. 108. b. But wreck'd Goods are cast on Land and consequently landed having no Owner or Proprietor and therefore the Duty impossible to be paid or agreed for before their landing and when so landed and not before the Law makes the King or Lord of the Mannor their Proprietor but not fully neither until after a year and a day allowed to the first Owners to claim them if any such be by Stat. Westminster the First c. 4. Whence it follows That wrecks should be rather forfeited to the King which is not pretended as Goods landed the Kings Duty not paid or agreed for then seised until payment were according to the Act. 3. By this Clause Imported Goods intended to be charg'd by the Act are Goods to be brought from the parts beyond the Seas And therefore also wreck'd Goods are not to pay the Duty for the Native Commodities of the Kingdome Shipwrackt in their passage by Sea for Exportation may be Imported into the Realm as wreck yet never brought from the parts beyond the Sea as the Clause intends Goods charg'd should be 4. Goods cast into the Sea to unburthen a Ship in a storm and never intended for Merchandise are wreck when cast on shoar without any Shipwrack Bract. l. 2. f. 41. b. 5. Goods derelicted that is deserted by the Owners and cast into the Sea which happens upon various occasions as coming from infected Towns or Places and for many other respects will be wreck if cast on shoar afterwards though never purpos'd for Merchandise Bract. l. 2. f. 41. b. n. 3. Constables C. 5. Rep. Bract. l. 3. de Coron c. 3. n. 5 f. 120. a. more fully But Goods cast overboard to lighten a Ship are not by Bracton nor from him in Sir H. Constables Case esteemed Goods derelicted which is a Question not throughly examined Si autem ea mente ut nolit esse Dominus aliud erit per Bract. But by all the Clauses of the Act Goods Imported into the Realm as Merchandise only are to pay the Kings Subsidy therefore not wreck Imported and not as Merchandise 6. If a Law were made That Horses and Oxen brought to Market to be sold should pay the King a Poundage of their value and a Horse or Ox coming to Market happen to stray and be seis'd in a Mannor that had Strayes and there us'd according to the Law for Strayes until a year and a day were past without claim of the Owner whereby the property of the Horse or Ox was alter'd and the Lord of the Mannor had gain'd it will any man say Poundage should be paid for this Horse or Ox to the King for being brought to Market to be sold and the Case is the same or harder to pay Poundage for wreck It remains that some Objections be clear'd First It is said That by fraud of the Merchant or his Agents and the Lord of the Mannor Goods not shipwrackt at all may be cast overboard so as to be cast on shoar on the Mannor by the Tide and so the Kings Duty avoided by confederacy 1. This Supposal is remote and cannot be of some wrecks possible as of wrecks of derelicted Goods or of Goods cast into the Sea to unburthen a Ship 2. If the fraud appear there is no wreck and the King will be righted But to charge a legal property which the Lord of the Mannor hath in a wreck with payments because a fraud may be possible but appears not will destroy all property for what appears not to be must be taken in Law as if it were not The Second Objection is That the Kings Officers by usage have had in several Kings times the Duties of Tunnage and Poundage from wrecks 1. We desired to see ancient Presidents of that usage but could see but one in the time of King James and some in the time of the last King which are so new that they are not considerable 2. Where the penning of a Statute is dubious long usage is a just medium to expound it by For Jus Norma loquendi is govern'd by usage And the meaning of things spoken or written must be as it hath constantly been receiv'd to be by common Acceptation But if usage hath been against the obvious meaning of an Act of Parliament by the Vulgar and Common Acceptation of the Words then it is rather an Oppression of those concern'd than an Exposition of the Act especially as the usage may be circumstanc'd As for instance The Customers seize a mans Goods under pretence of a Duty against Law and thereby deprive him of the use of his Goods until he regains them by Law which must be by engaging in a Suit with the King rather than do so he is content to pay what is demanded for the King By this usage all the Goods in the Land may be charg'd with the Duties of Tonnage and Poundage for when the Concern is not great most men if put to it will rather pay a little wrongfully than free themselves from it over-chargeably And in the present Case The genuine meaning of the words and purpose of the Act is not according to the pretended usage but against it as hath been shew'd Therefore usage in this Case weighs not The Third Objection is from the words Imported and brought into the Realm or Dominions thereof and that wrecks are Goods and Merchandises imported into the Realm and therefore chargeable with the Duty There are no Goods as hath been said but may in a sense be termed Merchandise because all Goods may possibly be sold and when sold or intended to be they are Merchandise and in that sense wreck'd Goods are Merchandise and so are all Goods else It is also true That the Goods in question are by the Verdict found to be shipped in Forraign parts as Merchandise but not intended to be brought into England but to be carried to some other Forraign parts so are the words But by the words or some other Forraign parts they might be intended to be carried as Merchandise into some Forraign parts which are of the Kings Dominions or of the Dominions of the Kingdom of England for the Act mentions both And the Act limits the Duty not upon Goods in the former sense but upon Goods brought by way of Merchandise by Natives or Aliens into any the Kings Dominions which must be intended his Dominions as of the Crown of England for nothing could be enacted here concerning his Dominions not of the Crown of England But the Verdict is uncertain Whether they were to be carried to Forraign parts of the Dominions of
England or into parts not of the Dominion of England nor follows it because Goods were intended to be sold that is as Merchandise in a place where good market was for them that they were intended to be sold at any other place where no profit could be made or not so much or where such Goods were perhaps prohibited Commodities therefore the words of the Act brought as Merchandise must mean that the Goods are for Merchandise at the place they are brought unto And Goods brought or imported any where as Merchandise or by way of Merchandise that is to be sold must necessarily have an Owner to set and receive the price for which they are sold unless a man will say That Goods can sell themselves and set and receive their own prises But wreck Goods imported or brought any where have no Owner to sell or prize them at the time of their importation and therefore are not brought by way of or as Merchandise to England or any where else Secondly Though in a loose sense inanimate things are said to bring things as in certain Seasons Rain to bring Grass in other Seasons some Winds to bring Snow and Frost some Storms to bring certain Fowl and Fish upon the Coasts Yet when the bringing in or importing or bringing out and exporting hath reference to Acts of Deliberation and Purpose as of Goods for sale which must be done by a rational Agent or when the thing brought requires a rational bringer or importer as be it a Message an Answer an Accompt or the like No man will say That things to be imported or brought by such deliberative Agents who must have purpose in what they do can be intended to be imported or brought by casual and insensible Agents but by Persons and Mediums and Instruments proper for the actions of reasonable Agents Therefore we say not That Goods drown'd or lost in passing a Ferry a great River an arm of the Sea are exported though carried to Sea but Goods exported are such as are convey'd to Sea in Ships or other Naval Carriage of mans Artifice and by like reason Goods imported must not be Goods imported by the Wind Water or such inanimate means but in Ships Vessels and other Conveyances used by reasonable Agents as Merchants Mariners Sailors c. whence I conclude That Goods or Merchandise imported within the meaning of the Act can only be such as are imported with deliberation and by reasonable Agents not casually and without reason and therefore wreck'd Goods are no Goods imported within the intention of the Act and consequently not to answer the Kings Duties for Goods as Goods cannot offend forfeit unlade pay Duties or the like but men whose Goods they are And wreck'd Goods have not Owners to do these Offices when the Act requires they should be done Therefore the Act intended not to charge the Duty upon such Goods Judgment for the Plaintiff The Chief Justice delivered the Opinion of the Court. Hill 23 24 Car. II. C. B. Rot. 695. Richard Crowley Plaintiff In a Replevin against Thomas Swindles William Whitehouse Roger Walton Defendants THE Plaintiff declares That the Defendants the Thirtieth of December 22 Car. 2. at Kings Norton in a place there called Hurley field took his Beasts four Cows and four Heifers and detain'd them to his damage of Forty pounds The Defendants defend the Force And as Bailiffs of Mary Ashenhurst Widow justifie the Caption and that the place contains and did contain when the Caption is suppos'd Twenty Acres of Land in Kings Norton aforesaid That long before the Caption one Thomas Greaves Esquire was seis'd of One hundred Acres of Land and of One hundred Acres of Pasture in Kings Norton aforesaid in the said County of Worcester whereof the Locus in quo is and at the time of the Caption and time out of mind was parcel in his demesne as of Fee containing Twenty Acres That he long before the Caption that is 18 die Decemb. 16 Car. 1. at Kings Norton aforesaid by his Indenture in writing under his Seal which the Defendants produce dated the said day and year in consideration of former Service done by Edmond Ashenhurst to him the said Thomas did grant by his said Writing to the said Edmond and Mary his Wife one yearly Rent of Twenty pounds issuing out of the said Twenty Acres with the Appurtenances by the name of all his Lands and Hereditaments scituate in Kings Norton aforesaid Habendum the said Rent to the said Edmond and Mary and their Assigns after the decease of one Anne Greaves and Thomas Greaves Vncle to the Grantor or either of them which first should happen during the lives of Edmond and Mary and the longer liver of them at the Feasts of the Annunciation of the blessed Virgin Mary and St. Michael the Arch angel by equal portions The first payment to begin at such of the said Feasts as should first happen next after the decease of the said Anne Greaves and Thomas the Vncle or either of them That if the Rent were behind in part or in all it should be lawful for the Grantees and the Survivor of them to enter into all and singular the Lands in King's Norton of the Grantor and to distrain and detain until payment By vertue whereof the said Edmond and Mary became seis'd of the said Rent in their Demesne as of Free hold during their Lives as aforesaid The Defendants say further in Fact That after that is to say the last day of February in the Two and twentieth year of the now King the said Anne Greaves and Thomas the Vncle and Edmond the Husband died at King's Norton That for Twenty pounds of the said Rent for one whole year ending at the Feast of Saint Michael the Arch-Angel in the Two and twentieth year of the King unpaid to the said Mary the Defendants justifie the Caption as in Lands subject to the said Mary's Distress as her Bailiffs And averr her to be living at King's Norton aforesaid The Plaintiff demands Oyer of the Writing Indented by which it appears That the said Annuity was granted to Edmond and Mary and their Assigns in manner set forth by the Defendants in their Conuzance But with this variance in the Deed And if the aforesaid yearly Rents of Ten pounds and of Twenty pounds shall be unpaid at any the daies aforesaid in part or in all That it shall be lawful for the said Edmond and Mary at any time during the joynt natural Lives of the said Anne Greaves and Thomas Greaves the Uncle if the said Edmond and Mary or either of them should so long live and as often as the said Rents of Twenty pounds or any parcel should be behind to enter into all the said Thomas Greaves the Grantors Lands in King's Norton aforesaid and to Distrain Vpon Oyer of which Indenture the Plaintiff demurrs upon the Conuzance Two Exceptions have been taken to this Conuzance made by the Defendants The first for that
by the party This difference is very material for if the Father could devise the Land in trust for him until his Son came to One and twenty as he can grant the Custody then as in other Cases of Leases for years the Land undoubtedly should go to the Executor or Administrator of him whom the Father named for the tuition and the trust should follow the Land as in other Cases where Lands are convey'd in trust But when he cannot ex directo devise the Land in trust then the Land follows the Custody and not the Custody the Land and the Land must go as the Custody can go and not the Custody as the Land can go Coke Litt. f. 49. a. 1 H. 7. 28. 8 H. 7. 4. As where a House or Land belongs to an Office or a Chamber to a Corody the Office or Corody being granted by Deed the House and Land follows as incident or belonging without Livery because the Office is the principal and the Land but pertaining to it A second Consideration is That by this Act no new custody is instituted but the office of Guardian as to the duty and power of the place is left the same as the Law before had prescrib'd and setled of Guardian in Soccage But the modus habendi of that office is alter'd by this Act in two Circumstances The first 1. It may be held for a longer time viz. to the Age of the Heir of One and twenty where before it was but to Fourteen 2. It may be by other persons held for before it was the next of Kindred not inheritable could have it now who the Father names shall have it So it is as if an Office grantable for life only before should be made grantable for years by Parliament or grantable before to any person should be made grantable but to some kind of persons only The Office as to the Duty of it and its essence is the same it was But the Modus habendi alter'd If therefore this new Guardian is the same in Office and Interest with the former Guardian in Soccage and varies from it only in the Modus habendi then the Ward hath the same legal Remedy against this Guardian as was against the old But if this be a new Office of Guardianship differing in its nature from the other the Heir hath no remedy against him at all in Law For though this new Guardian be enabled to have such Actions as the old might have yet this Act enables not the Heir to have like Actions or any other against him as he might against the Guardian in Soccage The Intent of this Statute is to priviledge the Father against common right to appoint the Guardian of his Heir and the time of his Wardship under One and twenty But leaves the Heirs of all other Ancestors Wards in Soccage as before Therefore I hold 1. That such a Special Guardian cannot transferr the Custody of the Ward by Deed or will to any other 2. That he hath no different Interest from a Guardian in Soccage but for the time of the Wardship 1. When an Act of Parliament alteâ—s the Common Law the meaning shall not be strained beyond the words except in Cases of publick Vtility when the end of the Act appears to be larger than the enacting words But by the words the Father only can appoint the Guardian therefore the Guardian so appointed cannot appoint another Guardian 2. The Mother hath the same concern for her Heir as the Father hath But she cannot by the Act name a Guardian therefore much less can the Guardian named by the Father 3. The Father cannot by the Act give the custody to a Papist but if it may be transferr'd over by him whom the Father names or by Act in Law go to his Executor or Administrator it may come to a Papist against the meaning of the Act. 4. Offices or Acts of personal Trust cannot be assign'd for the Trust is not personal which any man may have Dyer 2 3 Eliz. f. 189. b. 5. At the Common Law none could have the Custody and Marriage of a mans Son and Heir apparent from the Father yet the Father could not grant or sell the Custody and Marriage of his Heir apparent though the marriage was to his own benefit as was resolved by the greater number of the Iudges in the Lord Bray's Case who by Indenture had sold for Eight hundred pounds the Custody and Marriage of his Son and Heir apparent in the time of Henry the Eighth to the Lord Audley Chancellor of England Lord Cromwell Lord Privy Seal Sir William Paulett Treasurer of the Houshold The Marquis of Winchester Lord Treasurer Dyer supra f. 190. b. pl. 19. The Reason given is That the Father hath no Interest to be granted or sold to a Stranger in his eldest Son but it is inseparably annex'd to the person of the Father Two Judges differ'd because an Action of Trespass would lye for taking away a mans Heir apparent and marrying him whence they conclude he might be granted as a Chattel 11 H. 4. f. 23. a. Fitz. N. Br. Tresp f. 90. b. Lett. G. f. 89. Lett. O. But an Action of Trespass will lye for taking away ones Servant For taking away a Monk where he was cloyster'd in Castigationem Pro Uxore abducta cum bonis Viri yet none of these are assignable West 1. c. 48. By the Statute of Westminster the First If the Guardian in Chivalry made a Feoffment of the Wards Lands in his Custody during his Minority the Heir might forthwith have a Writ of Novel Disseisin against the Guardian and Tenant and the Land recover'd should be deliver'd to the next of kinn to the Heir to be kept and accompted for to him at his full Age. This was neither Guardian in Soccage nor Chivalry Coke 2. Inst f. 260. b. By 4 5 P.M. c. 8. No woman child under 16. can be taken against his will whom the Father hath made Guardian by Deed or Will yet this is no Lease of the Custody till 16. nor is it assignable Ratcliffs C. 3. Rep. Shoplands C. 3 Jac. Cr. f. 99. but a special Guardian appointed by the Statute and such a Guardian could not assign over nor should it go to his Executors by the Express Book This Case likewise and common Experience proves That Guardian in Soccage cannot assign nor shall the Custody go to his Executors though some ancient Books make some doubt therein For expresly by the Statute of 52 H. 3. the next of kin is to answer and be accomptable to the Heir in Soccage as this special Guardian is here by Westminster the First These several sorts of Guardians trusted for the Heir could neither assign their Custody nor did it go to their Executors because the Trust was personal and they had no Interest for themselves The Trust is as personal in this new Guardian nor hath he any Interest in it for himself and
communitatem aliquam quae sit pars majoris communitatis sicut uni Religioni Ecclesiae aut Civitati conceditur privilegium per quod excipitur à Lege Communi Potest etiam concedi toti communitati pro uno Actu vel pro certo tempore per modum suspensionis This last must be understood where the Dispensator is the intire Law-maker And accordingly Dispensations are as frequently granted by the Pope from whom the use of Dispensations was principally derived to us to Bodies Corporate that is to religious Orders as to private persons Laertius Cherubinus his Bullarium as is apparent in the Bullaries if any will consult them but I forbear citing them because they are Forreign Authorities 2 R. 3. f. 11 12. 1 H. 7. f. 2 3. E. 3. licens'd the Citizens of Waterford in Ireland their Heirs and Successors to carry their Staple Merchandise to what parts they pleased beyond the Seas being bound under great penalties by Act of Parliament to bring them to the Staple And the Iudges twice assembled 2 R. 3. 1 H. 7. made no question of the Kings Dispensation but the Question was because later Laws of Henry the Sixth's time had enacted the bringing of Irish Merchandise to the Staple at Calice Regist ad quod damnum f. 252. b. The King may licence an Aggregate Body Corporate and their Successors to damm up an ancient Current of the Sea through their Land for carriage by water to a Vill and that such passage and carriage shall be by a new Current as commodious as appears by a Writ of Ad quod damnum in the Register in the Case of the Prior and Covent of Christ-Church in Canterbury which is a Body Corporate The like licence may be to such Body Corporate and their Successors Regist f. 254. b to bring the Water-course of a Well for the use of that Community as by like Writ of Ad quod damnum appears in the Case of the Prior and Covent of K. for diverting such a Water-course for the use of their House And by another like Writ Regist f. 255. a in the Case of the Fraternity of Fryers Minors for diverting of a Water-course or part of it to serve the House of the Fraternity And so a Licence may be to a Corporation to stop up a High-way through their Land a more commodious being by them set out in place of it as is common in the Cases of particular persons And in all these Cases the benefit of the Licence is to every particular person of the Corporation more than to the Body Politique And these are not Licences where the King hath an Inheritance unless all High-ways and Water-courses be accounted the Kings Inheritance The like Dispensation or Exemption the King may grant to a Corporation that they shall be Toll-free which extends to every man and not to the Corporation only in their Corporate Capacity And a Dispensation and Exemption differ in sound only for a Dispensation is properly to licence a person to do a thing which he can do but is by a Law penally prohibited from doing it An Exemption is properly to licence a man or men not to do a thing which they are penally by a Law precepted to do Edward the Third granted to the Bailiffs Mayor 4 H. 6. f. 6. and Burgesses of Oxford that none of them should be sworn in Iuries with Forreigners that were not of the Town The like Grant was made to the Commonalty and Citizens of Norwich by Edward the Fourth 21 E. 4. f. 56. that they should not be put in Iuries out of the Town of Norfolk These are Dispensations or Exemptions to a Corporation and their Successors that none of them should serve in Iuries but within their Corporation which otherwise by the Law they must have done And the like we meet with daily to other Towns in the Circuits Now if it shall be said That High-ways the Water-streams Tolls of Markets Fines of Jurors and the like are the Kings Inheritance as well as his Customes are and therefore the King as to them may dispense with Corporations Then It is clear That penal Laws the breach of which enables no man to an Action for his damage thereby and the forfeiture and punishment for breaking them are much more the Kings Inheritance Therefore ex concesso the King may dispense with Corporations as to them Pl. Com. f. 487 Nicholls C. 2. The King cannot dispense in any Case but with his own Right and not with the Right of any other And every Right of the Crown is its Inheritance or Interest Therefore where the King can dispense at all he hath an Inheritance or Interest and consequently where he can dispense at all he may dispense to a Corporation If the Laws of 7 E. 6. and 12 Car. 2. had been penn'd thus Every man that sells Wine contrary to this Act shall pay the King Two pence for every pint so sold this Two pence had been a Duty and Inheritance to the King as his Customes are without difference and as the Duty of Six pence lately was upon every quart of French Wine retail'd Why then the greater or less the Duty be alters not the nature of the King's Inheritance in the Duty Therefore if the Acts had been That every seller of Wine contrary to the Act should pay the King Five pounds for every pint sold there Five pounds had equally been the King's Duty and Inheritance as the Two pence before and there had been no restraint to sell but what was made by payment of so great a Duty to the King Secondly The Acts so penn'd had equally hindred the selling of Wine as now they do by words prohibiting sale upon forfeiture of Five pounds for in both Cases the payment of Five pounds whether by Forfeiture or Duty is that which only prevents the selling Therefore the Laws were the same in effect either way penn'd and consequently the Forfeiture of Five pounds given as the Acts stand penn'd is equally the King's Inheritance as if it had been given by way of Duty In the next place I will shew what Dispensations or Licences are as I conceive unquestionably good to Corporations and their Successors 1. A Licence to purchase in Mortmain which none can have but a Corporation or single Body Politique 2. A Licence to make a Park Chase or Warren in their own Ground which the Law prohibits to be done without licence 3. A Licence to convert some quantity of their ancient Arable Land into Pasture which was prohibited by the Acts of 4 H. 7. 5 Eliz. and divers other Laws 4 H. 7. c. 19. most of which were repeal'd in 21 Jac. which is not material as to the Question in hand And that is an Offence also at the Common Law and I remember it proceeded against as such tempore Caâ—â—â— 1. in the Star-Chamber after the Repeal of most of the Statutes prohibiting it 4. A Licence to
as the Kings Bench 157 Commendam 1. Capere in Commendam is good where the Patron is not prejudiced 25 2. Retinere in Commendam is good where consented to by him that was to present to the Avoidance 25 3. Commendam Retinere may be for years 24 25 4. How many Benefices a Bishop may retain by a Dispensation 25 5. Although the King confirms it yet the Incumbent derives no Estate from the King but only by the Patrons presentment 26 Common See Title Statute 1. 1. No Common of Pasture can be claimed by Custome within the Mannor that may not be prescribed for out of the Mannor 254 2. Inhabitants not Incorporated cannot prescribe in a Common 254 3. How Copyholders must prescribe for Common ibid. 4. Where the Tenant may prescribe to have sola separalis Communia and where not 255 256 5. One or more Tenants may have solam separalem Communiam from other Commoners but not from the Lord 256 6. Where the Commoner claims habere solam separalem Pasturam how and upon what Action Whether the Lord shall be excluded or no the matter will come in question 253 7. Where a Commoner prescribes for Common for Cattel levant and couchant Antiquo Messuagio without any Land the prescription is naught because Cattel cannot be levant and couchant to a Common intent upon a Messuage only 252 253 8. Where the Lord may approve against the Commoners being an Exposition of the Statute of Merton 256 257 Common Pleas Court 1. The Common Pleas or Exchequer may upon the Return of a Habeas Corpus d scharge a Prisoner if it appear the Imprisonment is against Law 157 2. If the Imprisonment is just or doubtful and uncertain the Common Pleas cannot bayl him but must remand him 157 3. A Prohibition for incroaching of Jurisdiction lies in the Common Pleas 157 Condition 1. The difference between a Condition and Limitation 32 2. A Devise to the Son and Heir and if he did not pay all the Legacies that then it shall remain to the Legatees In default of payment this shall vest in the Legatees by Executory Devise 271 Condition of an Obligation 1. A Bond is entred into with Condition for quiet Enjoyment the Defendant pleads that the Plaintiff entred and might have quietly enjoyed the Plaintiff replyed That he was outed by J. S. the Replication is void because he did not say that J. S. had a good Title 121 122 Confirmation 1. A Confirmation cannot be for a time 27 2. Where it shall enlarge an Estate 44 45 3. The Kings Confirmation of a Commendam transfers no Right to the Incumbent 26 Constable See Title Officer  Construction of Law See Title Law 1. It is both equitable and of publick convenience that the Law should assist men to recover their dues when detained from them 38 2. It is an absurdity to say That a man hath a Right to a thing for which the Law gives him no remedy 47 138 Copyholder 1. They cannot prescribe against the Lord to have solam separalem Pasturam 254 255 2. How the Copyholders must prescribe for Common 254 Corporation 1. The King may dispense with a Corporation for any thing which in its nature may be dispensed with 347 348 2. The King may dispense with a Corporation as to penal Laws 349 350 3. What Licenses made by the King to Corporations are good and several instances of them 348 349 350 4. What Licenses to a Corporation are not good 351 352 Costs See Damages 1. Upon a Nonsuit or Discontinuance upon an Action brought against Officers they shall have their double Costs by the Statute of the One and twentieth of King James 117 Covenant 1. All Covenants between the Lessor and Lessee are Covenants in Law or express Covenants 118 2. An express Covenant restrains the general Covenant in Law 126 3. Where the Covenant is to enjoy against one or more particular men and where against all men 127 4. By a Covenant in Law the Lessee is to enjoy his Term against the lawful entry or interruption of any man but not against tortious Entries because the Lessee hath his proper remedy against the wrong-doers 118 119 5. If a stranger who hath no right outs the Lessee he shall not bring Covenant against the Lessor because he hath remedy by Action against the stranger But if he enter by elder Title then he shall have Covenant because he hath no other remedy 119 120 6. Though the Covenant is that the Lessee shall enjoy against all persons yet he shall not have Covenant against the Lessor unless he be legally outed 119 120 121 123 7. The Law shall never adjudge that a man covenants against the wrongful acts of strangers except the words are full and express 121 8. When the Covenant is to enjoy against all men the Covenant is not expresly to enjoy against tortious acts neither will the Law so interpret it 123 125 Coverture See Baron and Feme  County Palatine See Title Franchise  Court or Courts See Common Pleas Kings Bench. 1. The Court of Kings Bench cannot pretend to the only discharging of prisoners upon Habeas Corpus unless in case of priviledge but the Chancery may do it without question 157 2. Prohibitions for incroaching Jurisdiction may issue as well out of the Common Pleas as Kings Bench ibid. 209 3. The Judges of the Temporal Courts have full conizance of what Marriages are within the Levitical Degrees and what not 207 4. They have likewise conizance of what Marriages are incestuous and what not and may prohibit the Ecclesiastical Courts from questioning such Marriages 207 5. The Secular Judges are most conizant of Acts of Parliament 213 6. If a Court give Judgment judicially another Court is not bound to give the like Judgment unless it think that Judgment first given to be according to Law 383 7. The Court of the Sessions in London doth not differ in its essence nature and power from another Sessions in the Country but all differ in their accidents which make no alteration in their actings in the eye of the Law 140 Custome See Prescription 1. How things become strangely unnatural to man by custome only 224 Customes for Merchandize See Title Statutes 2 25. 1. The Customes called Custumae Antiquae for Wooll Wooll-fells and Leather were granted by Parliament to King Edward the First in the third year of his Reign and was no Duty at the Common Law 161 162 163 2. The several properties that Wines must have which are lyable to pay Tunnage and Poundage by the Act of 12 Car. 2. 165 3. No goods are to pay Custome but those which are brought in to Merchandize not such as come in by accident as in case of wreck 165 166 171 172 4. By the common Law all wrecks were the Kings and therefore not lyable to pay Custome because they were his own 164 Damages See Costs 1. In an Action upon the Case the whole Debt is