Source: The Reports of Sir Creswell Levinz, Volume 3, 220—223 (3 Lev. 220.)
The King against Sir Oliver Butler in the House of Lords.
ERROR of a Judgment in a Scire facias in the Petty-bag Office in Chancery, where by the Scire fac' it was shewn, that the City of Rochester is an ancient City, and incorporated Time out of Mind by the Name of Citizens of Rochester, until 1 E 4. when they were incorporated by the Name of the Mayor and Citizens; and that the Citizens till 1 E 4. and from thence the Mayor and Citizens have had a Market there held every Wednesday and every Friday, and Tolls &c. and that they held the said City of the King by the Fee-Farm Rent of 12l. per annum; and that the King by Letters Patents of the 7th of March last (reciting an Inquisition on an ad quod dampnum, whereby it was found, that it would not be to the Damage of the King, or of any other Person, if the King granted a Market in Chatham to Sir Oliver Butler the Defendant, to be held every Tuesday) granted to the Defendant a Market to be held there every Tuesday, with all Profits, &c. prout per [*P221.] easdem Literas Patentes apparet: And whereas the Town of Chatham is within a Mile and Half of Rochester, and whereas we are given to understand by the Mayor &c of Rochester, that the said Writ ad quod dampnum was executed the same Day it bears Date, at the Distance of thirty Miles from Rochester, and without Notice to the Mayor, &c. surreptitiously and fraudulently in Deceit of them; and that the Grant to the Defendant is to the Damage, &c. of the City of Rochester, and of the Market there; and that by Reason thereof the said Letters Patents to the Defendant are void: Therefore the Sheriff of Kent is commanded to warn the Defendant to appear to shew Cause wherefore the said Letters Patents should not be cancelled. The Defendant appears, and pleads, that the Scire Facias and the Matter therein contained minus sufficien' in lege existunt ad ipsum ad respondend' compellend' quodq; ipse ad Breve prædictum modo & forma præd' impetrat' necesse non habet, nec per legem terræ tenet' respondere, & hoc, &c. The Attorney-General replies, that the Writ and the Matter therein contained are good and sufficient in Law to cause the said Letters Patents to be cancelled and vacated; and thereby is the Demurrer joined. And upon arguing the Case in Chancery, the Lord Chancellor Finch (being assisted by the then Ch. Just. North, and by Jones then a judge in B. R. and now Ch. Just. of C. B.) gave Judgment that the Patent should be cancelled and vacated: Whereupon Sir Oliver Butler brought Error in the House of Peers: And after Argument at the Bar there the Lords referred the Matter to the Judges then attending in Parliament, viz. Gregory, Charlton, Levinz, Withers, Halloway and Walcot, who all unamously [sic.] agreed, that the Judgment given in the Chancery ought to be affirmed; and accordingly they delivered their Opinions seriatim to the Lords by their Lordships Command, with their Answers to the several Objections which had been made for Reversal of the Judgment, viz. 1. That a Sci. Fa. does not lie to repeal such Patents, because there is another Remedy by the Common Law, i. e. by Assize of Nusance, Quod permittat, &c. where the Matter shall be tried by a Jury and several Judges, and not by one Judge only, as it is in Chancery: To which they answered, that the King has an undoubted Right to repeal a Patent wherein he is deceived, or his Subjects prejudiced, and that by Sci. Fa.; as 2 E. 3. 34. a Sci. Fa. to repeal a Patent for Toll, 17 E. 59. b. of a Market, 11. H. 4. 5. of a Market, Dy. 197, 198. 3 El. 7, or 8. the [*P.223.] like Precendents are cited, Dy. 276. 19 El. of Markets; and Staundf. Prerog. says, that it is jure regio by the Common Law, and in none of the Cases was it any Question whether the Writ would lie, but only the Manner of pursuing it, and other incident Matters; and it is not unusual for the King to have his Remedy, as well as the Subject also; as in Batteries, Trespasses, &c. the King has a Remedy by Information and Indictment, and the Party grieved by his Action. As to the second Objection, that no ad quod damp' was necessary; that the Patent might have been granted without it, and therefore, though it were surreptitious, it is not material. It was answered and resolved by all the Judges, that which is always done in Pleading is necessary to be done; but it may be dispensed with by a Non obstante; (Quær.) for there the King takes Notice, that it is not ad dampnum, &c. and yet if it be ad dampnum the Patent is void; for in all such Patents the Condition is implied, viz. that it be not ad dampnum of the neighbouring Merchants; and in this Case it is confessed by the Demurrer, that the Patent is ad dampnum of Rochester, and was illy executed, and in Deceit of the King. As to the third Objection, That Nothing here is positively alledged but with a dat' est nobis intelligi, so and so, &c. it was answered and resolved by the said Judges. 1. It is positively alledged, that concessio praed' est ad dampn' & depauperationem, &c which is a sufficient Cause to revoke the Patent, if there were Nothing more. 2. That all under the dat' est nobis intelligi is a sufficient Allegation to put the Party to answer, as in all Informations in B. R. the Form is, that the Attorney General, or Coroner of the Court dat Cur' intelligi & informari, &c.. As to the fourth Objection, That the Demurrer was not well joined, the Defendant saying, that the Writ was not sufficient to put him to answer, and the Attorney-General replying, quod bon' & sufficien' ad causand' Literas patentes præd' cancelland' & vacand'. It was answered and resolved by the said Judges, that it was sufficient to put the Matter in Judgment of the Court, and that it was well done of the Attorney-General to reply as he did, in Order to have the Event of his Suit, viz. the Patent cancelled. As to the fifth Objection, That upon this Demurrer a Judgment in chief ought not to have been given, but only a respondeas ouster, it was answered and resolved by the said Justices, that the Sci. fac. shewing sufficient Matter to have the Patent cancelled, and the Defendant having confessed it by his Demurrer, he shall not by the [*P.223.] Manner of his Demurrer alter the Judgment of the Court; for if so, it would be in his Power to procure a Delay for himself; but the Matter in the Sci. fa. appearing sufficient, and not denied by any Plea of the Defendant, but confessed by his Demurrer, ad Judgment peremptory in Chancery ought to be given, and not a respondeas ouster; and so was it done in the Case 17 E. 3. 59. b. and lately in a Scire fac' in B. R. between Cole and Green, 1 Lev. 312. by Hale Ch. Just. and the whole Court; where in a Scire fac' upon a Judgment in Waste upon the Damages recovered, the Defendant demurred partly in Abatement, and partly in Bar, and yet the Court gave Judgment in chief. To the sixth Objection, that there ought to have been an Office found before the scire facias issued, for that a Sci. fac. is a judicial Writ, and ought to be founded upon a Record; it was answered and resolved by the Judges, that true it is, a Sci. fac. ought to be founded on a Record, and so it is here; for the Patent is a Record in Chancery, upon which this Sci. fac. issued, and it is a sufficient Record whereon to found it, as appears by the Precedents before cited; but where the Sci. fac. is brough for the Forfeiture of a Patent, or other Thing in another Court, there ought to be found an Office in such other Court, before the Sci. fac. issues, except the Forfeiture appears of Record in the same Court whereupon to found the Scire fac'; and where the Office is found, the King shall seize presently upon the Office (found); but where the Scire fac. is founded on the Patent itself, as here, the King cannot seize till the Forfeiture or other Defect of the Patent be tried upon the Scire fac' as in 11 H. 4, 5. And at last all the said Judges agreed, that by the Demurrer in this Case it is confessed, that the ad quod dampnum was deceitfully executed, and that the Patent was ad dampnum & depauperationem of Rochester and their Market; and therefore the Judgment in Chancery ought to be affirmed, which the Lords in Parliament did accordingly. But afterwards, as I heard, the Defendant sued another Writ of ad quod dampnum, and took a new Patent, which was granted because a Market at Chatham was very convenient, if not (absolutely) necessary in Respect of Navigation, and the Shipping and Stores, and the Labourers about the Shipping there.
