Selected quad for the lemma: duty_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
duty_n	book_n	pay_v	rate_n	983	5	9.9083	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A64753	The reports and arguments of that learned judge Sir John Vaughan Kt. late chief justice of His Majesties court of Common Pleas being all of them special cases and many wherein he pronounced the resolution of the whole court of common pleas ; at the time he was chief justice there / published by his son Edward Vaughan, Esq.	England and Wales. Court of Common Pleas.; Vaughan, John, Sir, 1603-1674.; Vaughan, Edward, d. 1688.	1677 (1677)	Wing V130; ESTC R716	370,241	492

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

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

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