Imágenes de páginas

theless aid was granted; and yet this was no more but a disvaluation of the king's patronage.

But 4 H. 6. fo. 1. is a case far more remote. Pipe brought a writ of entry, and the defendant said, that he was parson of the church of Dale, of the presentment of the Duke of Norfolk, and that the land in question is part of his glebe, and that the Bishop of Norwich is ordinary, which bishopric is vacant, and the temporalties seized into the king's hands, and so remain; and prays in aid of the Duke of Norfolk, as patron, and as to the ordinary, judgment, whether the king not consulted with, &c. The book is left at large, for they proceeded not; and yet the seizing of the temporalties had no affinity with the jurisdiction of the ordinary; but, because it did but touch or coast upon the king's right, and because the king is supreme, and the see of the inferior ordinary was void, the court was at a stand.

Now for the office. The best case in the law is 2 H. 7. fo. 7. where it seems the stander-by saw more than they that played; for the court erred, and the reporter was in the right, as appears by the adjournment of the cause before all the judges of England, who overthrew the former judgment, and confirmed the law according to the opinion of the reporter.

There the case was, Crofts brought an assise against Edmund Kemperden, and made his plaint of the office of the keeper of the park of Woodstock, and the porter's place there, and made his title by the letters patents of King Ed. IV. The defendant intitled himself by letters patents of King Hen. VII., who granted to him for life, and prayed in aid of the king; and the judges denied the aid: but the same year, fo. 11. before all the judges, the aid was granted.

Place these two books together, and you shall find it amounts to this, that there were two objections made unto the aid. The one, because there was no clause of recompence or any rent reserved; the other, because both parties affirmed the king's title, and so the king was at no loss. To the first the answer is made, that the king, in the present case, hath loss, for that he hath in effect the reversion of the office, that he may grant it when it falls; for (as in Nevill's case) the king may have an office to grant, but not to execute. To the second answer is made, that it might be, the first patent was forfeited (the case being of an office which is subject to a forfeiture), and that

thereupon a seizure was made by the king, and upon that seizure the latter patent was grounded, and so the king's act might come in question; and to justify that, therefore, the king must be a' party.

And if you will have a case, not of an office itself, but of an incident to an office (as the other case is of a fee), then you may take the case of Crofts and the lord Beauchamp, 10 H. 7. fo. 38. where the plaint being of a house and land, the tenant shewed a covenant, by deed inrolled, of a grant of an office of forester in tail, the remainder to King Edw. IV., the truth being, that the house and land in question were incident to that office; and so prayed in aid: but there an averment was wanting; and upon that reason only aid could not be granted: but if it had been alleged by the plea, there had been no colour but the aid should be granted, as well in respect of the incident of the office as of the office itself.

To proceed to the seventh degree, which is, where the king loseth nothing, but only his title is prejudiced and blemished, and an evidence raised against it: for that there is one case, instar omnium, the famous case of 2 R. 3. fo. 13. b. John Hunston brought an action of the case against John bishop of Ely, for claiming him to be his villein, and for lying in wait to seize him; and the bishop justified, that he was his villein regardant to a certain manor of his see; and thereupon they were at issue; and hanging the plea, the bishop was disabled by parliament, and his temporalties forfeited to the king, who seized them. Hunston went on, and prayed the nisi prius; whereupon the king's attorney brought this writ, reciting the whole matter, and how the temporalties were seized into the king's hands, commanding the justices not to proceed rege inconsulto. What came of it before all the judges of England? It was agreed, unanimi consensu, that the writ should be obeyed; for they said, that although the king upon the action of the case did lose nothing, because the damages did reach but to the party, yet nevertheless if the issue should be found for the plaintiff against the king, that he was not the bishop's villein, it might be a great evidence against the king's title, for the manor itself which was in his hands; so as the court kept aloof, and upon this oblique and remote consequence of prejudice to the king, the court did surcease.

Trinted "no."

Printed "trench."

The same learning you shall find in actions of like nature, as trespass, or quare impedit, wherein the king loseth nothing for the present, but nevertheless his title may be foiled; and although the books do vary in this point, yet you shall find the more constant resolution as I say. And for the trespass, take the book 9 H. 7. fo. 15. Bryant and Fairfax; and 27 H. 8. fo. 28. by Fitzherbert, " clearly there shall be no proceeding "without making the king' a party; no, not in trespass." And the case of 5 H. 7. fo. 16. of the quare impedit, which seems to be to the contrary, is justly controlled and questioned by the reporter. But where the king may receive prejudice in his title, not in the same land, but other land upon the same title, it is another case. As if there is land upon the title of the lord Dacres, or the lord Latimer, &c., whereof part is in the Crown, and part out of the Crown, in fee-simple, without rent; if an assise be brought of the land which is out of the Crown, without any rent received, there certainly lies no aid, because it is not of the same thing; neither can that plea between two subjects ever be brought into the chancery; but whether some kind of writ of this nature may not be brought to stay such a suit, you shall give me leave to doubt.

Now to come to the eighth degree of loss, when the king is to lose any balance; it is comparative, where the king hath benefit on both sides, but yet with a disproportion.

I will cite only that notable case which is 1 H. 4. fo. 8. where the case was, that the king had granted the office of measuring of linen cloth and canvas sold between foreigners unto John Butler, taking as Robert Sherwood took; there was an attachment upon prohibition against the mayor and sheriffs of London, for not putting him in possession, according to the clause in his patent: the defendants alleged, that they held the city of the king in fee-farm rendering rent; and that, if this office should take place, their farm should be impaired ; and so pray aid of the king. In this case they were ousted of the aid; for that on the one side, if the office should stand, yet they should pay their fee-farm nevertheless; and on the other side, if the office should be overthrown, then the king's reversion and gift of the office should be lost, which should be his disherison, which was not equal: besides that, they were upon

1 I have added "the king." Brook, Aid del Roy, pl. 1, gives the sense, but not the words of the text.

4th cause. The form of

the writ.

contempt (which is also against the king); and so the aid justly denied.

So if you alter the case in 1 H. 7. and put it that the king granted an office of keepership of a park by several patents, and upon the one patent the rent is reserved, and upon the other none; I say, that in this case, whethersoever of the patents be ancienter or later, the patent that hath the rent shall have the benefit of the aid, in destruction of the other, and not è converso; for it is the king's loss that sways the aid. And for that I can shew a notable record, in a case between the Bishop of Ely and the city of Norwich.

As for the last degree, which is, if the king's charter be questioned, without any manner of loss to the king, that in such case the king must be made party; it is a reverend opinion, and supported with a great deal of authorities; and no doubt it grew from that ancient maxim in Bracton, In chartis regis non præsumant justitiarii regis disputare, sed tutius est ut expectent sententiam domini regis: and certainly there are a great number of books on it, whereof the most direct are, 30 Ass. pl. 5. 2 H. 4. fo. 19. 2 H. 4. fo. 25. 33 H. 6. fo. 16.; for as for the books of 38 Ass. fo. 16. 39 E. 3. fo. 11. and 25 Ass. fo. 8. they may receive an answer, and no more perplex.

But I do take the law to be otherwise this day, except it be in charters which are of a higher nature than charters of lands or interest; and this error grew upon a misconstruction of the statute of bigamy; but because this is beyond the case in question, therefore I will not stand upon it: and here I conclude my third principal part.

Now come I to the last part, which is, the form of the writ, which doth require your attention as much or more than the former, because in that part will fall the removing of all the evasions and subterfuges which have been or can be used on the adverse part.

The writ hath, as I said' in the beginning, two parts; the recital or certificate, and the precept or mandate. For the Five points. first of these, I will divide that which I shall say into five points.

First, I will grant that there must be a recital of the king's title in the writ.

Printed find." See page 689.

[ocr errors][merged small][merged small][ocr errors][ocr errors]

Secondly, I will prove that the king's title recited need not to be grounded upon any precedent record.

Thirdly, I will prove that the certificate of the writ concerning that title is peremptory.

Fourthly, I will prove that you must never question the king's title upon the writ.

And lastly, I will answer some weak objections that have been made, although the affirmative proof doth in itself take

them away.

For the first point, I will grant that which I take to be law, First point. which is, that the king must disclose his title specially in this writ; and therefore, upon this I hold it the proper place to tell you what writs I think are insufficient.

First, If the writ be not1 ad idem, that is, doth not sufficiently denominate the record that should be stayed, then there is no certainty, and so it cannot bind; as if the assise being of the fee only, the writ hath recited it to be of the office.

Secondly, I do confess, that among all the precedents of this writ which I have seen (which are very many), I never found any of a general writ, but that the king's title was ever expressed by way of recital; no writ of certis de causis vobis mandamus quòd nullatenus procedatis ; no writ pro eò quòd nos cogitamus quòd in prejudicium nostrum caderet, vobis mandamus, &c.; but the subject is fairly dealt withal, and the king's title is ever disclosed; not because the court shall judge of the title, as I will tell you by and by, but because the party may be apprised how he may make his suit to the king; for it were a hard matter to say, "Sue to the king," and that the subject should not know upon what ground to sue: that were to leave him in a wood, and not in a way.

Thirdly, if the king's title be referred to a record, and the record destroyed it, then the court is not tied by the writ, as appears in Bedingfield's case, 18 Eliz.2, in a by-point; where the king's title was grounded upon an office recited in the writ, and the office extended not to divers lands comprised in the writ, there the original record, which the writ voucheth, governeth the writ itself, and destroyeth it for so much as is not contained in the office.

And lastly, I will not deny neither, but that if all the king's

[blocks in formation]
« AnteriorContinuar »