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In this I will now shew you a cloud of authorities, nubem testium; nevertheless, because I love not confusion, I will order them thus: I will make unto you a scala damni' regis, that is to say, a scale or gradation of the king's loss, beginning with the great, and so descending to the less, because of that there is more doubt; and so put a case or two of every kind. The degrees therefore of the king's loss are in number nine, every of which cases this writ lies.


The first is, where the king is to lose possession, or present? profit.

The second is, where the king is to lose a reversion; and that of two natures, either a true reversion, or a reversion only by conclusion.

The third, where he is to lose seignory, fee farm, or rent reserved. The fourth is, where he is to lose by way of charging his possessions with any rent or profits, collateral or otherwise, by way of warranty or recompence.

The fifth is, where he is to lose any title, possibility, or contingency.

The sixth is, where the king is to lose any royal patronage, donative, or gift of office; which is our case.

The seventh is, where his title is any where prejudiced, foiled3, or blemished, or an evidence raised against him, though he lose nothing for the present.

The eighth is, where the king is to lose upon the balance; that is, where he hath benefit two ways, the law will ever protect the greater benefit against the lesser, but not the lesser against the greater.

The ninth, and last, when the king is at no loss at all, but only his charter or patent is questioned, though the interest be wholly out of him: wherein though Mr. Serjeant Chibborne did labour and argue exceedingly well in maintaining that position generally, yet I, for my part, will not defend that point; but, with deference, in every of these I will put some cases the best and most select in the law, because I will not overlay you with numbers.

I will begin therefore where the king loseth possession or profit; and I will take the weakest and superficial kind of possessions and profits.

'Printed "domini."
2 Printed "prevent."

3 Printed "failed."

The Prior of Barnesey' was sued for certain land, and pleaded to issue; and at the day when the jury appeared, the Prior brought a writ (as we did in this case) to the justices, purporting, that whereas he was impleaded before them of certain lands, the King gave them to understand, that all the possessions of the said Prior were seized into his hands, because he was an alien of the obedience of France, requiring [them] therefore so circumspectly to deal and behave themselves, that they do nothing that may turn to the king's damage.

Hereupon, although it was pressed by the plaintiff's counsel, that the court might proceed as far as verdict, because the writ imported not that they should stay, but only look about them; yet says Stone, justice, "the King hath given us to "know that the lands are seized into his hands, and therefore we cannot hold plea between the Prior and you of those "lands which are in the hands of the King;" as who should say, If the king give us leave, yet the law giveth us not leave; "therefore," saith he to that inquest, "God be with you;" and to the party, "Sue to the king.”

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So here we have the case of this same surface, this superficies of title which the king had by way of pernancy of profits in case of the Prior alien, and yet good ground of this writ.

In a præcipe quòd reddat, at the day of the summons returned, the defendant brought a writ out of the chancery, reciting that the land in plea was held of the King by knight's service, and that such a one, the king's tenant, died seised thereof, his heir within age, whereby the lands were seized into the King's hands, commanding the judges not to proceed rege inconsulto: hereupon the tenant nevertheless was demanded. Saith Jenney, "To what purpose demand you him? "For if he come not, you cannot have a grand cape upon his "default; but you ought to sue to the king." Say Littleton and Choke, judges, "He must be demanded to continue the process."

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And the like law is of a livery in 11 Hen. 7. fo. .2 For though it be questioned there, whether the writ of dower be well brought, yet of the aid no doubt is made; but I will grant that the king's interest may be so feeble as the suit shall not stay and that I learn in the case of 11 H. 6. fo. 13. A man lets land to an Abbot for years, and an assise was brought

21 E. 4. 14.

2 So printed; but the reference seems to be to Hil. T. 4 Hen. 7. pl. 1. See Fitz., Aid del Roy, pl. 33.

against him of the same land; and the Abbot said that the King had seized his goods and chattels for dilapidations, and had also taken his goods and chattels into his protection; in this case aid was denied: and if the like matter were contained in the writ de rege inconsulto, the court, in my opinion, needeth not to stay for the seizure; for dilapidation is matter of ecclesiastical conusance; and the taking of the lands and goods into the king's hands by way of protection is no seizure to the king's use; so that neither of them are such possessions in the king as the law esteemeth, no more than in the case of the outlawry in a personal action. And if an assise be brought against one that is outlawed, and the king recite by his writ the outlawry, and that thereby he takes the profits of the lands, and thereupon commands the court to surcease, in this case I say the court ought not to surcease, for it is no such loss to the king, as the law values; for since the party may discharge the king's interest by feoffment, à fortiori it ought not to be any delay to an issue of1 right.

Marry, I am of another opinion in the case of the lunatic, although the king hath but the profits upon account, because of the trust the law reposeth in the king for the party.

To proceed to the second degree, where the king is in reversion: if it be a reversion de facto, in state, of that I will put no cases; for, perspicue2 vera non sunt probanda. But for the reversion by conclusion, it is a juror's case, and therefore fit to have authorities vouched in it. The difference, therefore, is taken in 24 E. 3. fo. 1. and 8 H. 6. fo. 25. and 1 H. 7. fo. 28. that if a man will plead, that the king, by his letters patents, did let unto him for life, or plead that a lease for life was made unto him, the remainder unto the king, and thereupon pray aid, he must in these cases shew letters patents or a deed inrolled; but if he plead positively, and substantively, that he is seised for life, the reversion to the Crown, and prayeth in aid, he needs shew nothing; because, although the king had nothing before, he is entitled to a reversion by conclusion,

This is a wonderful strong case, that an imaginary reversion, by matter of falsity gained hanging the writ, should give3 cause of aid. And then see the mischief; for it may be a delay in

I have added this word. 3 Printed "have."

• Printed perspicua.

Printed so," and with a comma only after aid.

all cases in the world; no tenant in assise, or other real action, but may keep the demandant in play by this means, and make him plead with the king; yet so tender is the law, that it will not permit this imaginary right of the king to be questioned, without the king be called to it.

Come we now to the third degree of loss, which is when the king loseth seignory, fee-farm rent, or rent reserved. Take for that the case in 35 H. 6. fo. 46. the case between the Bishop of Winchester and the Prior of St. John of Jerusalem : there, in conclusion and judgment in the case, you shall see the difference notably taken by Prisot, that it is not simply a seignory or rent reserved that shall give cause of aid of the king, or ground of a writ or plea of rege inconsulto. For that indeed were a mischievous case; for all the king's tenants in England of fee-farms might be in case of aid. But if the title of the plaintiff be paramount before the commencement of the king's seignories or rent, whereby the king may be defeated of his seignories or rent, in whole or in part, by the eviction of the land, and so at loss, there the aid or the writ lieth, and not otherwise for it is indifferent to the king who be his tenants, so they come all under his seignory or rents.

Upon the like reasons is the book in 31 Ass. pl. 27. where it appears that, if rent be reserved to the king by a lease, and the lessee be bound to bear all charges, out-payments, and allowances, and a corody (as the case there was) is demanded, there the rent shall not give cause of aid; because, although he be evicted, yet the lessee is to pay his rent howsoever, and so the king hath no loss. But if the king had covenanted to have borne out the charge of such incumbrances or out-payments, it had been otherwise.

To proceed to the fourth degree, which is, when the king hath loss collateral. For the warranty, where it is expressed with a clause of recompence, whether in lieu of voucher or of damage, the learnings are so clear, that I will not put the books that the suit shall be to the king. As for the word dedi, that it should be a warranty in the king's case, whereas the proper word warrantizabimus will not serve without clause of recompence, you shall, I mean, learn to doubt with books against the opinion of 1 H. 7. And for the collateral charge

1 Printed "or."

2 Printed with a full stop, and new paragraph.

you may see the book, which is 3 Ass. pl. 1. where an assise was brought of a rent, and the defendant shews that he had the tenements' put in view of the lease of the king, and therefore that he conceiveth that there might not be a proceeding without taking counsel of the king: and thereupon the book says, "Note, that in this case the aid is granted of another thing than that is in demand;" and so no doubt is it of a common, and the like.

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The fifth degree was title, possibility, or contingency; as if the king give land upon condition, and a præcipe be brought of this land, upon a title paramount the king's condition, &c. I hold in this case the king may stay the proceedings, and bring the suit before him in the chancery, for the safety of the condition. Sure I am, the case in 39 E. 3. fo. 8. is a much harder case, where dower was brought against the guardian, who pleaded that the ward's ancestor held other lands of the king in chief, and died, whereby the king seized and granted unto the tenant usque ad plenam ætatem hæredis, and demands judgment, if the king not consulted with, &c. In this case, upon debate, the aid was granted; and yet there was no rent reserved upon the patent, neither was there any remainder of the king in the estate, for it was granted until full age; and yet, because there was a possibility, that if the heir did live till full age he should sue his livery out of the king's hands, it was sufficient ground for the aid.

Come we now to the sixth degree, which is, where the king may have loss in respect of his patronage or gift of office, or the like.

For this you may see the case in 38 E. 3. fo. 28. b. the abbot of Lycull's case, where a deanery of the king's advowson was to be charged with an annuity, and a scire facias was brought against the dean upon an annuity [recovered 2] against his predecessor. The dean said, that the king was seised of the advowson of the deanery discharged of the annuity, and that he holds of the collation of the king; and so prayed aid: and after much debate, and divers objections that the writ of scire facias was in the nature of execution, and so no time to pray in aid; and again, that the predecessor had aid in the former suit, and so no aid should be in the latter; yet never

Printed "tenancy." The case is in Br. Aid del Roy, pl. 70. ? I have added this word.

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