IN an information for the King by the Attorney General against Sir Robert Iohnson for entrie into a house , and Close in Buckingham Town , called the Parsonage Close , in February 4. Iac. upon not guiltie pleaded a special verdict was found to this effect : that Queen Elizabeth was seised in fee , in right of her Crown of the late Prebends of Sutton Buckingham , Horton , and Hordley in the Countie of Buck , whereof the place where &c. is parcel , and she 20 Februarie 11. Eliz. granted to Henry Seymor Lord Seymor the said Prebends for life rendring 11. s. 4. for rent , and the Iurors say , that these Letters Patents , by the command of the said Lord Seymor were restored to be cancelled ; and he being seised pro ut lex postulat , Queen Eliz. 21. Mar. 37. Eliz. reciting the former Patent , Quas quidem litteras patentes , et totum jus , statum , titulum , terminum et interesse de et in praemissis praefatus dominus Seymor modo habens , et gaudens surfum rediddit et restituit cancellandum , to this intention nevertheless that we should make to him another patent , which surrender we accepted of by these presents ; she by her patent under the great Seal aswell in consideration of the said surrender , as for other causes and considerations , demised and granted to the said Lord Seymor the said foure Prebends for his life , the remainder to Anthony Wingfield for life , the remainder to Robert Iohnson for life rendring 90 l. 3 s. 3. d. for rent , and they found that there was not any actual surrender , or cancellation of the said Letters Patents of 11. Eliz. but restitut . ad cancellandum as before the making , and acceptance of the second Patent of 37. Eliz. and they found that there was not any Vacat made upon the inrolment of the Patent of 11. Eliz. and they found that 10. April 37. Eliz. Anthony Wingfield , and Iohnson granted to the Lord Seymor for 90. years to commence after his death , or forfeiture of his estate , if Wingfield , or Iohnson , or one of them should so long live , and 20. April the same year the Lord Henry Seymor granted to Sir Robert Iohnson for 60. years to begin after the death of the said Seymor , rendring 400. l. rent to him his Executors or assignes ; the Lord Seymor died 4. Iac. and Sir Robert Iohnson entred , upon which entrie this information was brought : nay , that the Defendant is guiltie , and he divided the case into two points . First , if there be any actual surrender of the patent of 11. Eliz. because there is not any record thereof , and the King cannot take by bargain or contract if there be not a record of it , as appears by 5. E. 4. and 7. E. 4.6 . and Plowden in the Dutchy of Lancasters case , for as it is there said , it agrees with the Majestie of the King to have a record of things made by him , Mich. 3. Jac. in the Exchequer . or to him , and if a grant is pleaded to be made to the King , it is good to say quod non habetur tale Recordum , and here is no record , but a memorandum made upon it , for otherwise leases made by Abbots before the dissolution shall be said to be of record , because after the dissolution they were all put in the Tower amongst the records , but questionless those leases are not of record , because there is not any Memorandum made upon them : also in the Lord Latimers case 12. H. 7. in Kelloway , where Baron and feme seised in right of the feme in fee granted to the King , this is not good if the deed be not inrolled , for there they of the other side would have concluded the Tenant to say the contrary , but that the deed was inrolled , and so by way of admittance confess that a grant to the King is not good , if the deed be not inrolled : 3. Eliz. Dyer the Lord Dacres surrendred a patent of an office granted to him before Sir Nicholas Hare Master of the Rolls , but the surrender was not recorded , nor the patent Cancelled , nor a Vacat entred upon the inrolment , this is void , and shall not be aided now after the death of Sir Nicholas Hare per optimam opinionem ; in Kemps case Dyer 195. but it will be said that it appears not there , that the surrender was made in Chancery , and therefore differs from our case ; but see 19. Eliz. Dyer 355. which is direct in the point , where an exchange of land was with E. 6. by deed acknowledged to be inrolled &c. but not inrolled , it cannot after nor be inrolled , nor vest any interest in the Queen either as heir , or Purchasor , so hereby it appears that before inrolment , an estate vests not in the King , and he said that he had heard Popham late chief Iustice say , that the opinion of the Iudges was , that in this case nothing vests in the King until inrolment , and for that there was a private Act made in 39. Eliz. to relieve this particular case , so the Memorandum makes the record , and not the delivery of the patent to be cancelled , but the opinion of Davers in 37. H. 6.10 . may be objected against me , where he saith , that if a man make a feofment to the King , and deliver the deed in the Exchequer , or at the Kings Coffers , it is good without inrolment , which by the Court is intended for goods , and not to a feofment made to the King , for this is only the opinion of Davers , which I denie to be law , and also all this may be admitted for law , and yet prove nothing , for when the partie surrenders to the King , and delivers the deed to be inrolled , so that he had done all which in him is to pass the land to the King , then it may aptly be said in common speech , that the right of the land is in the King : because he of right ought to have it after inrolment , although he had not the propertie of the land before the Deed be inrolled , then if nothing vest in the Queen in the principal case before the patent made in 37. Eliz. the words subsequent in the patent will not help the matter , viz. quam quidem sursum redditionem acceptamus per praesentes , because the King had taken nothing before , and the recital in the patent concludes not the Queen ; it hath been said that the not making of a Memorandum is the fault of the Clark , and this shall not prejudice the partie in so great a mischief , but I answer that the same mischief will insue , where a man sells land by indenture , and delivers it to the Clark to be inrolled , and he inrols it not within 6. moneths , nothing shall pass by the sale , yet this is only the fáult of the Clark , but in this case he may have his action upon the case against the Clark , if so it be that he had paid all his fees , the fame law in the principal case , but admitting that , yet great mischief will insue if it be so that the estate shall pass to the King before inrolment , for then the estate and interest shall be tried by the Countrie , and not by the record , and then also in what place should a man search to finde the Kings estate , and perhaps for want of knowledge thereof every grant of the King will be avoided , and this would be a great mischief to the subjects , but admitting that this should be a good surrender without a Memorandum , or Vacat , yet this is not shewed in this case , for it appears not here that his intent was to surrender it , for although he deliver up his Letters patents , yet his estate remaines ; and then the consideration of the patent in 37. Eliz. being of a surrender of the first patent , and also of a surrender of the estate , if the estate be not surrendred as well as the patent , the consideration is for that false , and then the patent is void , and to p●ove that the estate remains although that the patent be surrendred , it appears by Fisher 12. H. 7.12 . where Tenant in tail of the gift of the King loses his letters patents , his heir is not at a mischief , for he may have a Constat , and this shall be good in evidence , but he cannot plead it , and this appears by the Preamble of the Statute of 13. Eliz. cap. 6. Dean and Chapter Lease land , this shall be by Deed , and in this case although that the lessee redeliver his deed , it is no surrender of the estate , but he shall not plead it without shewing a Deed of the assent of the Chapter ; but he shall give it in evidence , and good , because he had once a D●ed thereof , as it appears by 32. E. 3. Monstrance of Deeds , and it appears by 32. H. 8. Patents Br. 97. that if the Kings Patentee lose his letters Patents , he shall have a Constat , and by 32. H. 8. surender Br. 51. and 35. H. 8. tail : that if the King give in tail , and the Donee surrender his Patent , the tail thereby is not extinct , so although letters Patents are necessary for pleading of the Kings Grant , yet they are not requisite for the essence and continuance of the estate : also it is found that the said Patents were restored to be cancelled per mandatum Domini Seymor , & it is not found what manner of authoritie the Lord S. gave , nor found to whom the letters Patents were delivered , nor at what time , and peradventure they were delivered after the second Patent made , and then is the second Patent false , because then there was no surrender , and this is one of the reasons put it Kemps case 3. Eliz. 195.

The second point admitting that there is no actual surrender , if notwithstanding that , the Patent of 37. Eliz. be good , and as to that , I say if this Patent be good , it is because the Queen had recited the particular estate ; and therefore is not to her damage , or because the second Patent is a surrender in law of the first , and the rather because it appears to be the intention of the Queen , that the acceptance should be a surrender by these words , quam quidem sursum redditionem acceptamus per praesentes ; and as to the first reason it seems to me , that the Queen recites this as a particular estate determined , and not as an estate continuing , for by these words modo habens et gaudens it appears that the meaning of the Queen was , that the Lord Seymor had not an estate continuing in the intent of the Queen at the time of the making of the second Patent , but the Lord Chandos case in Coo. 6. fol. 55. seems to impugne me in this opinion , where the King made a gift in tail , and afterward by Patent reciting the former Grant , and also that the Patentee had delivered up the Patent into the Chancerie to be cancelled , by vertue whereof he thought himself to be seised in demeasne as of fee , did grant the lands unto the said Donee in fee , in that case it was adjudged that the reversion did pass unto the Donee , although the words of the reversion were not contained in the Patent : although that the King in that case did think that he granted a possession , but the reason of that was , that although the Patent was not inrolled , yet by law it should have been surrendred unto the King , nevertheless because that was the collection of the King , and not the suggestion of the partie that the King was seised by vertue &c. therefore the collection being false shall not make the Patent void , for all there that came of the suggestion of the partie is true , but our case is otherwise , for here the intention of the King was , that he had the land in possession when he had made the grant , and in truth he had but a reversion : also if the Patent should be good , great prejudice would or might ensue to the Queen thereby , for put the case that the Queen had annexed a condition to this lease , or that she had reserved a greater rent upon it , this condition , or increasing of the rent was the cause that the Queen had made this grant , and that if the second grant should be good , and the first not determined , that the Grantee may claim his first estate , and so defeat the Queen of her rent , and of his condition to have benefit of either , and this was the reason why the Patent was adjudged void in the case of Barwick Coo. lib. 5. fo. 94. because some parcels were not surrendred to the Queen , and therefore they were not subject to conditions , or rent reserved upon the second Patent : and for a second reason he argued that the acceptance of the second Patent is not a surrender in Law of the first Patent , because the first Patent is meerly void , as it appears in Fulmerston and Stewards case Plowden 107. that the reason why the taking of a second lease shall be a surrender of the former is , because both the estates cannot be in one and the same Parson at one and the same time , but this reason holds not in our case , because no estate passeth by the second Patent in regard it is void , and therefore this case may be resembled unto the last case in 23. Eliz. Dyer , where a man taking a second benefice incompatible without dispensation , doth not make the first benefice void by the Statute against Pluralities , because he never was a lawful Parson of the second benefice in respect the never subscribed to the Articles according to 13. Eliz. cap. 12. and in Harries and Wings case the second Patent was void : but a third reason was , he thought that these words Quam quidem sursum redditionem acceptamus have not aided this Grant , for the second Patent is made in consideration of a surrender made by the Patentee , and therefore there ought to be a good surrender made by him , or otherwise the consideration is false , for the King in consideration of a surrender made doth grant lands where in facto there was no surrender , as if the King grant black acre in consideration of a surrender of white acre , which in facto was not done , this grant is void : also this appears by these words modo habens et gaudens sursum reddidit et restituit &c. that the intention of the Queen was , that the Lord Seymor had surrendred before , and that he had no estate at this time of the making of the grant , for these words modo habens et gaudens ought to be interpreted according to the rules of Grammar , and for that in 9. H. 7.16 . b. the Court consulted with Grammarians touching the exposition of Latine words and was by them directed , and he said that this word modo had divers significations , for this signifieth nuper , interdum , aliquando , but most properly it signifieth nuper , or interdum , modo Paratus e●at , Codrus erit subito , qui modo Craesus erat , modo ad hunc diem &c. there it signifieth the present Tense , or time , but in the principal case , if modo should signifie the present tense , then it would not stand with this word sursum reddidit which is the preter tense , but if here it be construed that modo signifieth the present tense , this may well stand with sursum reddidit , and the meaning of the Queen ought to be taken to be that the Queen was deceived , and the Patent void , although in the principal case here was a good surrender before the second patent , yet until agreement nothing vests in the Queen , and therefore if a man pleads a surrender made by the lessee to him in reversion , he ought to plead an agreement to this surrender , and 13. H. 4. that this is not in him before agreement and entrie , and 32. E. 3. Bar 262. that until agreement nothing vests in him ; it was lately adjudged in the Common Pleas , where an incumbent had resigned yet until the ordinary did agree unto it , he remained an incumbent still , and for that in asmuch as the Queen had not agreed before the second Patent made , nothing vesteth in her till then , and then she was deceived , for she thought that she was in possession thereof at the time of the grant , and therefore he concluded that he conceived the Patent was void . Brock to the contrary , and he divided the case into three points . First , whether here be an actual surrender found to be made in Law . Secondly , if the acceptance of the second lease be good , or if the Queen reciting the estate , and that he had surrendred which the Queen had accepted , and that in consideration thereof she made the Grant , whether this be made good although there be no actual surrender . Thirdly , admit that here he no actual surrender in facto , whether this grant be aided by the Statute of 43. Eliz. cap. 1. but first before he would enter into his argument , he said that he would wash away the Rubs cast in his way to make his way the smoother , and first where it hath been said , that if the Queen should take by contract , or bargain without record that great mischief would insue , for by that means the Queens title should be tried by the Countrie : and in proof thereof he cited the Lord Latimers case in 12. H. 7.10 , 11. which he thought to be no authoritie for that purpose , for there the opinion of the Court was delivered concerning the shewing forth of Letters Patents , but not concerning matter of inrolment , also the case was of an estate of inheritance to be conveyed from the King , but the case now in question is but for an estate for life , which may in law more easily be determined than an estate of inheritance conveyed : also the case of 19. Eliz. Dyer 335. cited of the other part proves not this case , for first the question was not there whether the King took any thing without inrolment , but whether the Deed may be inrolled in the time of another King . Secondly , if this be confessed that the King there should take nothing without inrolment , yet this is not like to our case , for here this is but to merge a particular estate which differs much from the case of conveying of an inheritance : also this is confessed if there had been a Memorandum made in the Margent , then the surrender had been good : and the want thereof is the laches of the Clark , and then if it should not be a surrender before the Memorandum made , the Clark should make the surrender , and not the partie : and as to the Book of 37. H. 6. it is not answered , for to say , that the King hath no right to the thing granted before inrolment , but that he hath the propertie , that cannot be : and to that which hath been objected , that there doth not appear any intention of the surrender , because that although the Patents are surrendred , the estate remained , the Book of 32. E. 3. Monstrance of faith 178. proveth nothing , for there it is said , that a man may plead , that a Dean and Chapter did not lease modo et forma without shewing any Deed , for there this pleading is not to devest any thing out of &c. and also it appears in the principal case , that his intent was to surrender , for the Iury do finde that the Letters Patents were restored by the command of the Lord Seymor to be cancelled : and to that which hath been objected , if the second Patent should be good ; that the Queen might lose her Rent , or condition , because the first lease hath his continuance ; to that I give answer , that the first lease hath not his continuance , and therefore no loss can grow to the Queen : and to that which hath been objected , that the Queen is deceived , it appears by these words modo habens &c. restituit &c. that the intention of the Queen was , that the Lord Seymor had surrendred his estate before , and that he now had nothing , because that the word modo being joyned with the word reddidit signifieth the time past , but as to that it seems to me , that although ( modo ) poetica licentia in the strict construction of Grammer may signifie the time past , yet the signification thereof shall not be so taken in the letters Patents , for there it shall be taken in common construction , and not to the deceipt of the King , and therefore in the Dean and Chapter of Bristols case 7. E. 6. Dyer the words are nuper in Tenura I. S. et modo in Tenura A. B. there nuper is taken for the time past , but modo for the present time : and in 11. H. 7. Rogerum Townesend modo militem is to be intended that he is now Knight , and not that he was a Knight in time past , and not now ; also it is so to be observed here , that these words ( habens et gaudens ) are annexed to this word modo , both which are in the present time , and restituit comes afterwards , and so modo is not annexed to restituit , but unto habens et gaudens , also although the word shall be referred unto restituit , yet all may well stand together , for restituit may be referred unto the time present , as siquae fuerint in 35. H. 6.11 . and to that which hath been objected , that until the Queen agrees unto the surrender , the estate is not in the Queen , he thought that where Tenant for life surrenders before agreement , he in the reversion is Tenant to the Praecipe , although he shall not maintain a Trespass before entrie , for by 21. H. 7.12 . it appeareth that an estate for life may be determined aswel by word as by surrender , so in 9. H. 7. where the Tenant dies without heir , the freehold is immediately in the Lord , but yet he shall not have an action of Trespas before entrie : now as to the first point he conceived it to be an actual surrender although there be no Vacat made , nor any Memorandum , and to examine it he did relate what Acts might make a surrender , and to that purpose he said , that words being used which do prove an assent of the Tenant , that he in reversion shall have an estate , that shall be a surrender without express words of a surrender , for a man may surrender by these words Remisit , or resignavit , for the words are not material , if so there be substance , as in 40. E. 3. placito 14. and 40. Assises pl. 16. if a lessee for life saith to his lessor , that you shall enter , and I will that you shall have this land , this is a good surrender . So in 28. H. 8. Dyer 33. if a Termor agree that he in the reversion shall make a feofment , that is a surrender , so in 8. Eliz. Dyer 251 , 252. lessee for life is content that he in the reversion shall have the land , and his interest , that is a surrender , but in that case it appeared that a rent was reserved , and an agreement that the lessee should have it againe , if he survived the lessor , and therefore appearing plainly that it was not intended to pass by way of surrender , it was at the last adjudged no surrender , so in 14. H. 8. the Grantee of a Rent did surrender the Deed , and that held to be a good surrender of the Rent : it is daubted in 2. Eliz. Dyer in Sir Maurice Barkleys case 156. if the surrender of the Patent of an Office , unto a master of the Chancerie out of the Court be good without beliverie of the Patent to be cancelled , but that Book proveth nothing , but that a delivery of a Patent to be cancelled shall be a good surrender , though the Patent be not cancelled in facto : it hath been objected , that it matters not what commandment the Lord Seymor did give , nor in what Court the Patents were given up , nor before whom ; but to that he said in asmuch as it is found , that the Patents were given up by the commandment of the Lo●d Seymor to be cancelled , that being it was by his command , it was his own surrender : also it appears that the letters Patents were under the great Seal of England , which alwayes issueth out of the Chancery , and therefore it cannot be cancelled in any other Court , and it shall be intended , that they were given up to be cancelled there , also this word restituit signifieth to restore , and a man cannot restore any thing but where he had it , and he had it out of the Chancery , and therefore it shall not be otherwise intended but to be there restored , so in Baggots Assise 9. E. 4.7 . it is pleaded Quod restituit litteras Patentes Cancellandas , and sheweth not to whom , nor where , and it was held to be very good : but it is there pleaded Quod sursum reddidit Patentes Domini Regis , and shewed in special to whom they were surrendred , because it may be to any that hath power at the time of the surrender , but a man cannot restore unto any , but such a one who granted unto him , and therefore needs not shew unto whom he did restore : and these words restituit Cancellandas are no new words , but usually used in surrenders of Patents , as it appears by 9. E. 4.7 . and in Altonwoods case Cook lib. 1. and there the not entring of a Vacat doth not hurt , for it was the fault of the Clark : and Sir Maurice Barkleys case in 2. Eliz. 176. cited before doth not question it , that the entring of a Vacat should be material ; but the question here is , because he did not deliver them up to be cancelled ; in the Lord Darcies case Dyer 195. the jury did think that there was no surrender at all , but the Book-doth not marrant but that there may be a surrender without a Vacat : and he said , that at this time the matter is depending for Saint Saviours in Southwark if it be a good surrender without a Vacat entred , and no opinion as yet given in that case : and where it hath been objected , that there is no actual surrender until that the Queen hath agreed , and 8. and 21. H. 7. cited , that where a man pleads a surrender , he must also plead an agreement , yet because the agreement cannot appear by any Record , that the partie can procure to be made of it , it shall be good , although there be no record made of that agreement ; yet in this case , the Queen doth agree , as appears by the words in the second Patent , Quam quidem sursum redditionem acceptamus &c. Secondly , admitting there is no actual surrender in this case , yet if when the Queen did recite the particular estate , and that she had accepted the surrender thereof , and in consideration of it she maketh a grant , whether this second Patent shall be good , and it seemeth that it shall : and therefore it appeareth by 37. H. 6.18 . that the taking of a second lease shall be a surrender of the former : and in Corbets case 11. Eliz. Dyer 208. & 4. Mar. Dyer 140. although the first lease be by deed indented , and the second but by word : and in Ives case Cook lib. 5.11 . acceptance of a future lease is a surrender of a lease in possession ; and to that purpose is 21. H. 7.14 . H. 8.15.31 . Assises placito 26. and other Books , and in 3. Eliz. Dyer 200. the King granted a house for years , and after did grant to the Patentee the custody of the house with a fee , and the Patentee accepted the fee , and it is there doubtted it that shall be a surrender of the Term , and the matter was Compounded , but he said that he heard that the opinion of the Iudges was , that the acceptance of the custodie and fee was a surrender of the Term , by that I do infer , that there shall be a surrender by implication aswell where the King is partie , as where a common person only , first , if a surrender be effectual , it is sufficient although it be not formal , because it worketh as much profit to the King , and the surrender in this case was at the same instant that the Queen did Seal the letters Patents , for the estate passeth from the Queen without delivery : and it appears that the intention of the Queen was not to have any actual possession of that , by these words ( modo habens et gaudens : ) but it hath been objected in as much as this surrender was at an instant , that it should be void ; because that in instants the best shall be taken for the King , yet it seemeth to me that it is good , as in the case of 49. E. 3.5 . a. a man deviseth Burgage land holden of the King , and dieth without heir , this devise is not good against the King , because the devise . taketh not effect until the instant of the devisors death , and at that instant also doth the title of the King begin by death without heir ; and he cited Plowden 108 & 109. in Fusmerstons case , for the exposition of these words ( not now in being ) within the Statute of Monasteries ; and if in that case issue had been taken , whether it had been a surrender or not , it should have been found to be a surrender , because it is a surrender in the law , as it was in Thetfores case in the Common Pleas p. 28. Eliz. Rot. 122. in wast , Baron and Feme Donees in tail make a lease for life , the husband dieth , and the wife disagreeth to the lease , and the issue was , if the husband and wife did lease , and it was found that they did not lease , because now by her disagreement it is become in law not the lease of the wife ; Cook lib. 3. Butler and Bakers case accordingly fo. 27. & 28. but if the King be to sustain any loss by the consideration if that were false , then shall it make the Patent void : as it is in 9. H. 6. where the King was deceived in the value , so 18. Eliz. Dyer 352. where there was a loss in esse ; but it is contrary where there grows no loss to the King as 26. & 28. H. 8. of a thing passed : because the King is not to have benefit of it , the Lord Chandos case is not answered on the other side , for there the King did intend to have the actual possession where in facto he had not , yet because that was only a recital and Collection , in the matter in law it doth no hurt , so in the principal case , and so if the King grant a Mannor although he hath but a reversion of it , yet it shall pass without the word reversion 7. Eliz. Dyer 233. and the Kings Patent also shall be so construed , that one part may stand with another , viz. that the Lord Seymor now having the estate &c. doth restore unto us , &c. the which we do accept &c. as in Sir John Molins case 40. Eliz. Cook 6. Lord , measne , and Tenant , the Tenant was attainted of Treason ; and the King did grant the laud , tenendum de nobis &c. suis noftris et aliis cap. dominis feodi illius per servitia inde debita , et de jure consueta . He shall in that case hold of the mesne as the Tenant held before , for if he should hold of the King , the words subsequent would be void ; and for that cause such a construction shall be made that all may stand together ; now for the third point , admit that the surrender is not good , yet it is aided by the Statute of 43. Eliz. cap. 1. which aides all grants and surrenders &c. to or from the Queen : the clauses for conveyances to the Queen are with restraint , but for the conveyances of the Queen there are certain exceptions , our case is within that part of the Statute which relates unto the 25th . year of her Raign , and our case is within the words of the Statute , viz. surrenders , and surrenders within the Statute are such as are surrenders to a common intent , and therefore where the partie hath done that in him lieth , but some thing is to the perfection of a surrender , that is aided by the Statute : also by this word assurance in the Statute a purchase without deed is not aided , by a good assurance a surrender without deed is aided within the Statute , or else the Statute should serve for little or nothing , the Statute of confirmations of letters Patents hath the same words . That the Statute of 43. Eliz. hath , and upon 18. Eliz. it was resolved in 27. of Eliz. in Husseys case , that if Tenant in tail be and the reversion is granted to Queen Eliz. this is good , and aided by the Statute , so if a man grant lands to the King , but the Deed is not inrolled , this also is aided by the Statute , and where a grant shall be good at the Common Law by a Commonperson , there the like grant made by the King is made good by the Statute , and there was a case in the Dutchy Chamber Trin. 37. Eliz. between Cavendish and Bateman , where the Queen did grant Turbary within the Mannor of Lady Meadows within the Countie of Darby unto Bateman for 21. years , Bateman thereof makes a meadow , and afterwards the Queen in consideration of the surrender of the first grant , doth grant the same unto him for 40. years by the name of a meadow , and although he made no surrender , yet by the taking of the grant it was resolved that it was a good surrender , because there it was but of a particular estate , but otherwise if should be of fee , for a fee cannot be surrendered by implication : Dodderidge Serjeant of the King , argued that the Defendant is guiltie of intrusion : and he divided the case into two parts only , the first whether there be a sufficient consideration at the Common Law , to make the second Patent void , the second point admitting that there is not a sufficient consideration by the rule of the Common Law , whether the defect thereof be aided by the Statute of 43. Eliz. and he argued that the surrender , which the Queen intended to be the consideration of the grant , was an actual surrender alreadie perfected before the grant , which doth plainly appear to be so as he took it by the word sursum redditionem , and he said that he could not so have that word in the Preterperfect Tense , as it would be supplied by an act of the Present Tente as is pretended , viz. that the surrender is to be made by the acceptance of a new grant : and he vouched 35. H. 6. also he thought her to intend an actual surrender for an other reason , viz. for the words nobis sursum reddidit et restituit cancellandum , the which cannot be performed without an actual surrender , for otherwise there is no restoring : and he vouched 18. Eliz. fo. 437. & 43. E. 3. fo. 19. where it is observed , that if a wife do not remain with an Adulterer with her own accord &c. another reason , the Queen did intend an actual surrender , because of the words ( ea intentione ) which implie a surrender to have been actually precedent ; another reason was for that hereby the acceptance of the second Patent there is no surrender wrought of the former estate in the Law , until after the acceptance of the second letters Patents , and so the Queen deceived in the time : and he vouched the case of Totnes in 40. Eliz. in the Kings Bench , and Savages case in 9. H. 8. Carrels Rep. fo. 195. and here it appeareth , there was no surrender upon record precedent unto the second grant : also it ought to have been found by a special verdict . that the second letters Patents were granted at the suit of Seymor , or otherwise the granting of them to him makes no surrender of his former letters Patents , and then it follows that they are not surrendred yet . And where it hath been objected that the Queen useth these words in the second letters Patents , quas quidem litteras patentes praedictus Seymor modo habens et gaudens , and therefore it must be intended she takes notice that the first letters Patents were not yet surrendred , for then she would not say ( modo habens et gaudens ) he answered that this word modo signifieth the time passed , or the time presently for to pass , and the word habens cannot be taken in a legal sense , no otherwise then the word being is taken in Dockwrais case , 27. H. 8. fo. 19. and so these words modo habens et gaudens , signifie no more but that one he had an estate ; also the Queen is deceived in this word acceptamus , for she cannot in the Law be said to accept of that which by the Law is not vested in her : also he said that an actual surrender ought to be an actual giving up of so much as the Patentees received of her grant , as it appears 14. H. 8.21 . E. 3. Brook Prerogative 90.7 . E. 6. Dyer Sir Maurice Barklies case 2. Eliz. 159. Sir Ralph Sadlers case , that a duplicat is not sufficient if the letters Patents be surrendred and cancelled 3. Eliz. Dyer 195. and he said that the surrender which the Queen intended , ought to pass an estate from the partie surrendring which is not so done here : and where it hath been objected that the very delivery in the Court made of the letters Patents is a surrender of them , by the opinion of Davers in 37. H. 6. fo. 10. he said that this book was no Law as it may appear 12. H. 7. fo. 12. Carrels Reports : although in that book also Vavasour agreeth with Davers : and where it hath been objected that here is an actual surrender made , yet the intention of the Queen ought to be observed to make it an effectual surrender , or otherwise though she hath no loss by the surrender that is made , yet is it no effectual surrender , as appears by 18. Eliz. Dyer 352. . and so also was the case of the Isle of Man : also Sir Henry Seymor did not in this case all that he might have done for the perfecting of this surrender , for he ought to have seen this his surrender recorded , as it appears by the book case of the 11. H. 4. where it appeareth that if I be bound to levie a fine I ought to sue forth a writ of covenant or dedimus potestatem , and do all such other acts as it may make it a good and perfect fine in Law . Secondly , he took it that the Statute of 43. Eliz. did no whit aid this case , for that makes no surrender to the Queen to be a good surrender , but only an actual surrender which here is wanting , and the Statute in no sort extendeth to a surrender in the Law , for the surrender which this Statute intendeth to aid , ought to be a surrender conveying and assuring &c. and this surrender in the law conveyeth nothing but only extinguisheth , and for that purpose he put this case , if A. take a new lease of the Queen in 27. by indenture and this is of his own land , this Statute of 43. Eliz. doth not make such a kind of conveyance in the Law , by Estoppel good to vest the land in the Queen by this Estoppel which is a conveyance in the Law , unto the which the Lord chief Baron Tanfield said , insist not upon a labour of that kinde for it is plain enough , because the Queen being partie there can be no Estoppel as to any part in that case , also as to that part of his argument Mr. Walter agreed on the other side , and also he said , that if a grant of the Queeen were void at the Common Law for default of want of consideration , this Statute aids not ; Walter for the Defendant , and he divided the case into foure points , the first whether the Tenant for life by the Kings guift by surrendring his letters Patents hath also surrendred his estate . Secondly , if the surrender in this case made be defective only for want of matter of circumstance as the inrolment &c. whether such defects are saved by the Statute 43. Eliz. Thirdly , whether in this case an actual surrender be the consideration meerly which moveth the Queen to grant , or what shall be intended the consideration in this case . Fourthly , admitting that an actual surrender is the sole consideration in this case , then whether a Patent shall be adjudg'd void for default of such consideration , for a false consideration doth not avoid a Patent , but a false surmise doth first when the Kings Tenant for life doth surrender or give up his Patent ( although without deed ) yet with such circumstances as the law requireth , the surrender is good : for although a surrender of letters Patents made by the Kings Tenant in tail will not make estate tail void or determine , as it appears by the book case of 35. H. 8. title surrender and Cook 6. the Lord Chandos case , yet the bare giving up of the letters Patents by a Tenant for life is a surrender of his estate , so here in this case is 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 appeareth by 43. E. 3. 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 hath a rent or other thing which cannot pass but by deed , yet a surrender of such a rent shall be good by a bare deliverie up of the deed if he hath but an estate for life in the Rent : and this also , although it be but to the disseissor of the land out of which &c. the same Law , he took it of a particular Tenant for life of years : also 32. H. 8. Brook Patents 97. it is made a doubt whether the estate tail of the Kings Donee be determined and gone by surrendring of the letters Patent , and he referred that if thought worthy of a doubt whether it should be a good surrender of an estate tail , they would hade held it clearly a surrender for an estate for life : and it was admitted 3. Eli 2. Dyer fo. 193. Mack-Williams case , that if in the principal case if a Vacat or cancellation had been , the surrender had been good actually without question : and Sir Maurice Barkleys case cited on the other part proves the same also , for there it is admitted , that if the letters Patents had been given up , there had been a perfect surrender . And 40. H. 3. fol. 5. Belknap held that a surrender may be by word , which is to be intended by giving up the Patent : and that appears by Rolfs case in Dyer , that a voluntary surrender needs no Conftat : also where it hath been objected that the special verdict in this case hath not found in what Court the surrender was made , he answered , that the Law shall intend it to be made in the same Court from whence the letters Patents did issue , for a surrender cannot be good being made in another Court , and therefore it must needs be intended the same Court : and he vouched 11. Ed. 3. fo. 1. and 18. Eliz. Plinies Case and Covel and Cabels Case in Banco Regis 38. Eliz. wherein a special verdict it was holden that all things necessary for the perfecting of that the Iury hath found to be done , must be necessarily intended concurrent . Secondly , the want of circumstances in a surrender are perfected and supplied by the Statute of 43. Eliz. for although matters of substance are not aided within this Statute , yet matters of circumstances are aided . And he said that all the defects in this Case are matters of circumstance , and to prove that the defects in this Case are only in circumstance , he said that there are three principal defects in conveyances which are meerly matters of circumstance and aided within this Statute , the first is meerly want of form in a conveyance , and that such a defect is aided , he cited Hussies Case to be adjudged accordingly ; the second is where words are wanting in a conveyance , and that such a conveyance is aided by this Statute , he cited the opinion of Popham and Gawdy in 44. Eliz. in a cause depending in the Chancery : the third matter of circumstance is where there is want of some matter concerning the executing of an estate , and that such defect is only matter of circumstance and aided within this Statute he cited Morley and Whartons Case to be adjudged 7. Eliz. in the Common Pleas , that the default of not inrolling is aided by this Statute , and Mack-Williams and Kemps Case cited in Dyer before , proves this to be but matter of circumstance , and for that he thought the surrender in the principal Case wanting nothing but inrolment is aided by this Statute : also in the argument of the second point he shews what defects in conveyances should be accompted matter of substance and so not aided by this Statute of 43. Eliz. and to this purpose he held : that all disabilities of the person in a grant is matter of substance , and so not aided within this Statute ; and he cited Twynes Case 32. Eliz. in the Exchequer to be accordingly . Secondly , he held that the nature of an assurance is not aided by this Statute , and therefore if a man hath power to grant an estate by fine , and he doth it by Deed , this is not aided by the Statute , for this is defective in matter of substance , and he cited Wisemans Case , and Sir Hugh Cholmleys Case in Cook l. 2. also he said if a man give land to the King and his heirs to have ten years after such grant , this is not made good by the Statute . Thirdly , whereas it may be Collected , that because it is found in the special verdict that an actual surrender was the cause which moved the Queen to grant , or that it appears to be the cause , he held that no consideration plainly appeareth but only by relation to a consideration before mentioned , and he said that these words used by the Queen viz. ( modo habens et gaudens ) shew that the Queen took notice the state was still injoyed notwithstanding the delivery up of the letters Patents ; and therefore it cannot be intended by the verdict that the Queen intended an actual surrender before made for the consideration : but whereas it hath been objected of the other part , that the word modo doth often signifie the time past , and some instances according to Grammatical construction were given in proof thereof ; and thereupon they would infer that the Queen by these words modo habens did intend no other but lately having or injoying : to that he gave a double answer ; to the first he said , that there was no cause shewed or instance given . That modo habens joyned together will signifie a time past , though taken ●everally that may signifie so much , which makes a plain difference betwixt those instances , and this present case . Secondly , admitting in a Grammatical construction they did signifie as the other side would have it , yet the judges ought to adjudge thereof according to the most natural sence of these words in Common understanding , and that so it may be done , he vouched one Talbots Case in 32 Eliz. in Banco Regis , in which after the Iudges had conferred in the Court with divers learned Schollers touching the Grammatical construction of a word used in a Convey ance , they afterwards notwithstanding did wave the Grammatical construction , and adjudged the word to signifie in Law according to the Common received sense of the word , and according to this he vouched 12. H. 8. where the word uterque received the like construction : also he vouched the 20. Eliz. Dyer fol. 262. where it is admitted , that the word modo is to be taken in the present Tense , and to this purpose he also vouched Billings Case in 38. H. 6. and Bozuns Case Coo. lib. 4. and then he concluded that in asmuch as the special verdict had definitively found no consideration , but generally for the consideration above exprest , he held that the second Patent was good , for a Patent cannot be void , because there is no consideration to move the King to grant , but a Patent may be void as is pretended for a false consideration , which is not in this case , and therefore &c. Fourthly , admitting that the consideration in this Case was for an actual surrender before made , and that in this case no such actual surrender was before made , yet he held that in this Case the second lease is good : notwithstanding the false consideration , for it appears by 37. H. 8. Brook title patents 100. that a Patent shall never be void for a false consideration , but by reason of a false surmise it may ; but he confessed this difference was generally denied , because a Patent shall be void by reason of a false consideration , but he said that the differences were infinite also upon this ground , for some take a difference where a consideration is real , and where it is personal , and they hold that a real consideration being false shall not avoid the grant , but otherwise of a personal , and so they take the Book of 37. H. 8. before cited to be good Law ; and upon this difference others also have taken a difference where the consideration is to come to the King himself , and where it is to come to a stranger : others also have taken a difference where the consideration is of a thing valuable , and where it is not of value , yet they take a difference where that is past and executed , and where it is to come or Executorie ; but he said that although divers of these differences seemed to be good with great reasons , and were backed with some Authorities , yet he needed not to take advantage of any of them for the maintenance of this Case , and for that he took this general difference for the maintenance of this Patent , viz. that if the consideration be such which brings a benefit or commonditie to the King , and this is false , that this avoyds the grant ; but if it bring no commoditie to the King , although it be false , yet the grant is good , and to prove this diversitie , he cited Harris and Wings Case to be adjudged in Banco Regis , and Barwicks Case Cook lib. 5. and Sir Hugh Cholmleys Case Cook . lib. 2. to be adjudged accordingly of a false recital , and he said , although it be admitted that the consideration which the King intended to have was an actual surrender , yet in asmuch as this cannot be intended a thing more to his advantage , then a surrender in Law , the which plainly appears to be in this case , that the Patent is good , and for that he held that the second lease shall not be avoided for such a falsitie , and also he said that this Case is more strong of his side then any Case which may be cited , in asmuch as the King had no discommoditie or loss by the falsitie of the consideration , but in this Case also he should be at a loss if the second lease were not good , for the second lease reserveth a greater rent to the King , then was reserved by the first , and therefore it is for his benefit , that the Law should allow of the second lease , to the intent it may make a surrender of the former lease , for the Kings advantage , and if the King granteth probis hominibus de O. rendring rent they are by this grant impliedly made a corporation for the benefit of the King to render him the rent , whereas otherwise the grant would be void ; and so he took it in the principal case although the grant should be void , by reason of the false consideration , yet it should be good to this purpose for the Kings benefit : and after Termino Mich. Anno Sexto Jacobi Regis this Case was argued again , and Nicholas Serjeant for the Defendant said , that the sole point of the Case is , if the consideration of the lease made in 27. Eliz. be good or not , and this is exprest to be Tam in consideratione sursum reddditionis praedict. quam pro aliis Causiis , et Considerationibus &c. then it is to be considered if here be such a surrender as is meant to be within the intent of the Consideration of the Queen , and he said that in this Case here was a good surrender in law clearly by the Book of 37. H. 6. for in all Cases where a Teimer for years accepts a lease of him in Reversion as here the Lord Seymor did , then this is a surrender in Law of his first interest , but the Earl of Salisbury Lord Treasurer said , that this is not properly a surrender of this Antient Term , but an extinguishment thereof , to which the Lord chief Baron Tanfield agreed : and Serjeant Nichols further said , that the Consideration which moved the Queen to her grant was only the sufficient surrendring of the precedent estate of the Lord Seymor , and not the restoring of the letters Patents , and therefore although it be admitted , that here was not a sufficient restoring of the letters Patents , nor an actual surrender by this means , yet here is an effectual surrender by the operation of Law , and then this being the sole Consideration which moved the Queen to her grant , the not sufficient restoring of the letters Patents is not material , for he said , it seemed to him that in rei veritate the particular estate cannot be sufficiently surrendred by this bare giving up of the letters Patents by the Tenant for life , as it appears by Walshes Case cited in Altonwoods Case Cook lib. 1. and therefore he insisted not upon that . Secondly , he argued that a recital in the Kings Patents of a thing material if it be false , and come by information of the partie is all one as a false Consideration and not otherwise : and he said that it appears by Brook tit . Patents pla. 100. that all Considerations valuable , although they are false do not avoid a Patent , as where the King grants lands prodecem libris sibi solutis , although that in facto this is false , yet the grant is good : also it appears by 26. H. 8. and Sir Thomas Wrothes Case , and by 21. E. 4 fol. 48. that a consideration executed avoideth not a grant although it be false , but he said that it appears by the Case of 18. Eliz. Dyer 352. that if the King make a lease in Consideration of a surrender of a precedent lease which in truth was void , by some that the King may avoid the lease , but others contrary , because it was not done upon the suggestion of the partie , but for a consideration executed , and the surrender of the estate precedent was the material cause and consideration of the grant : and he said , that although in this Case there be not a good surrender of the letters Patents , yet the Consideration being only the surrendring of the estate , that is not material , for as it is said in Altonwoods Case Cook lib. 1. if the King in Consideration only of the surrender of precedent Patents makes a grant , in this Case there needs no averment of an estate , for the surrender is not material of the letters Patents . Also it appears Cholmleys Case Cook lib. 2. that if the King recite an estate to be made with Condition , although that at the same time of the recital this is not Conditional , yet if once this were Conditional the King is not deceived , although the condition be now released , and he cited also the Lord Chandos Case Cook lib. 6. where it appears that if the King recite a thing untruly which cometh not of the information of the partie , this shall not hurt the Grant , except it be part of the consideration , and he said , that Harris and Wings Case differs from this Case , for there the King had a Tenant who held a Tenement by the yearly rent of six pounds , and another Tenement of him by the yearly rent of nineteen pounds , and he made a new lease of both those to the said Tenant , without any recital of the former leases reserving but Nineteen pounds for both , and there it was adjudged , that the second lease was not good , but he said , that the reason of that judgement was , not because the antient lease was not recited , but by reason that a loss in the rent came to the King , and so by intendment he was deceived , and this was also upon the matter the reason of the resolution of Barwicks Case , and also in Mack-Williams Case , for there was not a surrender of the estate as the King intended , which ought to be , but in our Case the estate is well surrendred clearly , and he thought that these words ( modo habens ) may well stand with the Kings intent aswel to a surrender in Law , as to an actual surrender . The Attorney generall to the contrary . First for the recital , that the information of the partie was , that the King should have an actual surrender , and so was the Kings intent collected upon the information of the partie . Secondly , that here is not any actual surrender . Thirdly , that by consequence it followeth that the Queen is deceived . Fourthly , here is no surrender in Law in this Case . Fifthly , although here were a surrender in Law , yet that is not sufficient to make the grant good : to the first point be said , that alwayes a familiar construction ought to be made of the Kings grants , and therefore if the King grant all his portion of Tithes in D. this doth not pass his Parsonage in D. although he had no other Tithes there ; so if the King grant all his Titheable lands within the Mannor of B. although the lands of Coppiholders are parcel of the demeasnes of the Mannor of B. yet these lands in such Case do not pass , Cook . lib. 1. Bozuns Case , and Cook lib. 1. Altonwoods Case fo. 46. a●so it appears by the pleading in Plowden in Wrothesleys case , and in Adams case , and also in Fulmerstons case ; that although the antient particular estate be gone in Law by the acceptance of a new estate , yet it ought not to be pleaded as a surrender , and therefore it shall not be construed that the King intended such a surrender , which pleaders in their pleading do not accompt a surrender : also he said , that in regard that the Queen saith , quam quidem sursum redditionem acceptamus it seems by that , that she did not intend a surrender in Law , and therefore accepted nothing , but gave an estate &c. and must be meant such a surrender , to which she is partie by her acceptance : also where the words are , modo habens et gaudens , and therefore it is inferred that the Queen intended an estate containing in the Patentee this is true , for although that the Queen intended an actual surrender precedent to be made by the Patentee , yet his estate continues against the Queen untill an acceptance of a surrender by her , although also this may be called a surrender like unto a surrender of a benefice , untill an acceptance by the ordinary : also although it was found that the Queen made a new lease or letters Patents of the said Land to the said Lord Seymor , yet it appears not that the new letters Patents were accepted by the Lord Seymor until a moneth after the making of them when he made a lease to Johnson , and until that time without question there was no surrender either in fact , or in Law ; and where it hath been objected that these words ( modo habens ) implie only the present time , he said that the word modo will alwayes signifie such a time as the Verb with which it is joyned will signifie , and therefore Cicero saith , modo hoc malum in hanc Rempublicam invasit : also the words Jam et nunc , are of such signification as this word modo is : and these words are alwayes governed by the Verb , as Jam venit &c. so in the Bible the story of Naaman and Gehesey , Jam modo venerunt duo , behold two young men are come to me &c. and as to the second point it is clear , that here is not any actual surrender , for the King cannot take by an actual surrender without matter of Record . And therefore it was holden in the Lord Stanleys Case , that the King took nothing although his officers , by his command did feise a mans lands into their hands for the Kings use : also he said , that this appears by the 11. E. 4. and 2. Eliz. Dyer , if a man comes and saith , that he surrenders his office , and a Memorandum is recorded thereof , but the Patent is not delivered up , it seems this is not sufficient to make a surrender , so on the other side , if the Patentee make a deed purporting asmuch : yet it appeareth by 19. of Eliz. Dyer , if the deed be not inrolled it is a good surrender , and he agreed to that which hath been objected against him , that although that the Iury did not finde in what Court the restoring of the Patent was , yet it ought to be intended to be made in Chancery , but he said that the Iury did not finde any time when the surrender was made , and that is a thing material to be found as it appears in Kemps Case , and Mack Williams Case before . Thirdly , an actual surrender being in the King , new letters Patents urged to be made shall be intended to be part of the consideration which moved the King to a new grant , and he vouched 18. Eliz. Dyer 352 ▪ where a lease was recited which needed not , and in facto , the said lease was a void lease in Law . And therefore the new lease made was also void à fortiori here where an actual surrender is recited to be made . Fourthly , he said , that the sole reason in Harris and Wings case was , that the first lease ought to have been recited , for if the King makes a lease , and after makes another lease of the same land to the same lessee , the first lease is in being at the time of the acceptance of the new lease , as appears by Fulmerstons case in Plowden , and therefore if in such case there be not a good recital of the lease in being , the second lease is not good , and so the acceptance of it makes no surrender of the former lease , and he said that the recital of the Queen in the principal Case is a shewing of a former lease destroyed , and not in being , and then no actual surrender being made , the said former lease contrary to this recital is in being still , and so the recital is false , and consequently the second lease is a void lease , and so this worketh no surrender in Law of the old lease , and so he concluded the fourth point , that here is no surrender in Law , and he held that if there had been a good surrender in Law , yet this had not made the Patent good , and where it was objected , that a consideration executed though valuable being false avoyds not a Patent , he said it appears in 6. Ed. 2. tit . pardon Brook 79. that a consideration of service in the Kings Patent ought to be alledged to have been performed , nevertheless it appears in Sir Thomas Worths case in Plowden , that such a particular service being alledged in the Patent to be executed needs not an averment that it was performed , for the Patent is good although such consideration be false ; but he said , that in this Case the precedent surrender is the material consideration , and therefore there ought not to be any material variance in the form of the consideration , and so is the difference betwixt this Case , and Worths Case , and therefore if the King make a grant to A. in consideration , that he had released by deed inrolled , and he had released by fine , here is a failing of the consideration , that he had released by deed inrolled , when as he had released by fine , and so the grant is void , and he said that as it appears by the judgement given in Welshes Case cited in Altonwoods Case , that no equitie ought to be observed in the Kings grant against his express words , so here no equitie ought to be observed against the King , otherwise then his plain words import , and therefore here his words import and intend an actual surrender precedent , which ought not to be satisfied with a surrender subsequent : and after upon the motion of the Earl of Salisbury Lord Treasurer of England , this Case was referred to the Lord Privy Seal , and the Lord of Worcester , who awarded to Sir Robert Johnson 200 l. per annum during his life , and the life of his wife for all his interest ; but the Earl of Salisbury Lord Treasurer seemed that the matter in Law was against Sir Robert Johnson , although that equitie was for him , to which opinion Tanfield chief Baron also inclined , in regard there was not here any surrender in the Case , but an extinguishment only .