Pasch. 12 Jacobi.
In the King’s Bench
Godb R 253
78 ER 147

The Masters and Wardens of the Clothworkers of Ipswich in the county of Suffolk, brought an action of debt for 3l. 13s. 4d. [253] against D. and declared, that the King who now is had incorporated them by the same name, &c. And had granted unto them by charter, Quod nullus exerceat artem sive occupationem in aliqua shoppa, domo sive camera infra vellam predict. of a clothworker or tailor, nisi ante eos vel duos eorum probationem faceret quod apprentic. fuit per spacium 7 annorum, & per eos sive duos eorum sit aprobat. subpoena 3l. 13s. 4d. pro qualibet septimana qua exerceat predict. artem contra hanc constitutionem.

And layed in facto, that the defendant had used the trade of a tailor for the space, &c. against &c. The defendant pleaded, that he was retained in service with one Mr. Pennel gen. of Ipswich, and had been an apprentice for the space of seven years in tali loco, &c. and that he made garments for his said master and his wife and their children, infra &c. qua quidem exercitio est eadem exercitia artis which is supposed by the plaintiff’s in their declaration.

Upon which the plaintiffs did demur in law. Goldsmith for the plaintiffs, that the plea in bar is void: for every plea in bar ought to confesse and avoid, traverse or deny that which is alleadged in the plaintiffs declaration: but this plea in bar had not done any of them, and therefore was void: for the exercising of the trade which he hath confessed in his bar, cannot be intended the same matter with which the plaintiffs have charged him in their declaration, and therefore it is no good bar at all: and to prove the same, vide 14 H. 6. 2. 35 H. 6. 53. 12 H. 7. 24. 27 H. 8. 2.

Sir Robert Hitcham for the defendant: and he held that the matter is well confessed and avoided; because that usage which he hath confessed in the bar is colourable the same usage with which the plaintiffs have charged him in their declaration. As in a writ of maintenance, the defendant saith that he was of councel with the party, being a serjeant at law, &c. which is the same maintenance which is supposed by the paintiffs: vide 28 H. 6. 7. & 12. 19 H. 6. 30. 18 E. 4. 2. 36 H. 6. 7. Also he said, when a declaration is general, the defendant need not traverse. 1 E. 4. 9. 2 E. 4. 28. And further he said, that the Statute of 27 Eliz. cap. 5. of Demurs helped that defect, for that it is but only in matter of form.

But the justices did not argue that point: but the question which they made was, whether the constitution or ordinance were lawful or not: and as to that it was holden by the whole Court, that the said ordinance was unlawful: and it was agreed by the Court, that the King might make corporations, and grant to them that they may make ordinances for the ordering and government of any trade; but thereby they cannot make a monopoly for that is to take away free-trade, which is the birthright of every subject.

And therefore the case was in 2 H. 5. 5. in debt upon a bond upon condition, that one should not use his trade of a dyer in the town where the plaintiff did inhabit for one year: and there said, that the obligation was void, because the condition was against the law; and he swore (by God) if the plaintiffe [254] were present, that he should go to prison till he had paid a fine to the King: yet regularly, Modus & conventio vincunt legem.

2. It was resolved, that although such clause was contained in the Kings letters patents, yet it was void: but where it is either by prescription or by custome confirmed by Parliament, there such an ordinance may be good; Quia consuetudo legalis plus valet quam concessio Regalis.

The King granted unto the Abbot of Whitny the custody of a port which is as it were a key of the kingdom; and therefore the grant was void and so adjudged: and such grants are expressly against the statute of 9 E. 3. cap. 1.

And the charter granted by King Henry the 8. to the physitians of London hath the same clause in it: but if it had not been confirmed by Act of Parliament made 33 H. 8. it had been void.

The King granted unto B. that none besides himself should make ordnances for battery in the time of war: such grant was adjudged void.

But if a man hath brought in a new invention and a new trade within the kingdom, in peril of his life, and consumption of his estate or stock, &c. or if a man hath made a new discovery of any thing, in such cases the King of his grace and favor, in recompence of his costs and travail, may grant by charter unto him, that he only shall use such a trade or trafique for a certain time, because at first the people of the kingdom are ignorant, and have not the knowledge or skill to use it: but when that patent is expired, the King cannot make a new grant thereof: for when the trade is become common, and others have been bound apprentices in the same trade, there is no reason that such should be forbidden to use it.

And Cook Chief Justice put this case: the King granted to B. that he solely should make and carry kersies out of the realm; and the grant was adjudged void, which Crook concessit.

3. It was resolved, that this charter was void, because of the words, viz. Nisi ante eos vel duos eorum probationem fecerit, &c. And therefore it was considered what proof should be sufficient for the party: and as to that it was agreed that the proof cannot be upon oath; for such a corporation cannot administer an oath unto the party: and then the proof must be by his indentures and witnesses; and perhaps the corporation will not allow of any of them: for which the party hath no remedy against the said corporation, but by his actions at the common law; and in the mean time he should be barred of his trade which is all his living and maintenance, and to which he had been apprentice for seven years.

Another reason was given, because that by this way they should be judges in their own cause, which is against the law; and the King cannot grant unto another to do a thing which is against the law.

And afterwards Trin. 12 Jacobi, judgment was entred, Quod querentes nihil capiant per Billam.

And judgment was then given for the defendant.