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Second point.

titles be admitted both in law and fact, and all the words of the writ received for true, and yet the king appears to be at no loss, that in that case the court is not bound to stay; as in the case that I put to you in the third part of my division, if the writ should be grounded upon an outlawry in a personal action, or seizure for dilapidations, or the like.

For the second point, that it needeth not that the king's title laid in the writ should be grounded upon any precedent record, as an inquisition, fine, or the like, but it is enough to recite letters patents of grants subsequent to the king's title, without going higher'; I think no man who is learned will deny it.

Put the case, the king is seised in jure coronæ ab antiquo of the honour of Windsor; will any man say, that if the king grant letters patents unto J. S. of part of the demesnes thereof, and an assise be brought against him, and there comes unto the justices a writ reciting, that whereas the king was seised in right of his crown of the manor of Windsor, in his demesne as of fee, and by his letters patents granted to J. S. such a close, part of the demesnes thereof; and whereas nevertheless the said J. S. is drawn into plea by assise before you, ideo vobis mandamus quòd nobis inconsultis, &c. - will any man, I say, deny but this is a good writ, without vouching any original record of the king's title to the honour of Windsor?

In like manner, if the king shall recite in this writ his title by prescription to grant the office of custos brevium in the common pleas, or the like, is not this a sufficient shewing of a title? À multo fortiori in our case, where the letters patents are not extracted out of any actual possession precedent in the king, or out of any special prescription, but out of the fountain of his prerogative, and the potential part of his crown, which is sine patre, so as you must have this form of writ or none,-for there can be no record precedent, nor any prescription, of that which is merely created; and therefore, the difference that hath been spoken of between the old office and the new is idle, for the writ must be as the case is: if it be an ancient office, you must allege prescription; if a new, you must allege the power, as we have done. Now to say that the king cannot grant or erect any office de novo, no man, I think, will be such a plebeian (I mean both in science and honour) as so to affirm;

'I have omitted the word "and."


I will cite no books for it; you have the book of time, which is the best book, and perpetual practice.

If the king will erect a county palatine (which is a little model of a monarchy subordinate), what a number of offices are incident to the same, and yet all de novo.

If the king should conceive Cornwall to be too far off to fetch their law from Westminster, and therefore would erect a king's bench and common pleas there, and create likewise clerks and prothonotaries, and assign them the same fee, or half the fee that is received at Westminster, all these are offices de novo.

And in any1 of these cases, if any such officers be disturbed (I mean of so many as the king hath ordained to be in his own gift), the defendant may have aid of the king, or the plea of rege inconsulto, or this writ; and yet in none of these cases can the king's title be founded upon record or prescription, because the office is new created. Neither is this the case of new offices alone, but the like reason is of patents of privileges for new inventions, and upon patents of fairs, markets, leets, liberties, and the like; upon all which there may be, and are, reserved valuable rents. In all which cases, if they are drawn in question, you shall have aid, or this writ; and yet in none of them you can allege either possession in the Crown, or precedent record or prescription; because they were never in esse before the king's grant, but issue out of the potential power of the Crown, being put in act and executed by grant subsequent. And for the leet, you have the very case in 24 Eliz. fo. 6. where an action of the case was brought by the lord of the lect against J. S. for interrupting him to take a mark in money, which appertained to him by reason of an amerciament in his leet. The defendant pleaded a grant by letters patents from the king, with reservation of five pounds, to be paid into the exchequer; judgment, whether the king not consulted with, &c. This is our very case; there it was between an ancient leet and a leet newly created; and adjudged there that the suit should stay, and that it should be tried by suit with the king.

For the third point, that the certificate of the writ is peremp- Third point. tory, and the court is concluded to believe it, the difference is plain to him that can or will understand it, that in the plea rege inconsulto it sufficeth not the king's title appear only by

Printed "many."

way of allegation, except the party maintain it by record, or the court be apprised by the examination of the escheators, or commissioners; but otherwise it is upon the writ, the certificate whereof is peremptory. For this the case is in 20 Eliz. fo. 10. where a scire facias was brought to execute a fine, and the tenant said, that he held the manor of the lease of the king for life, the reversion to the king; and prayeth in aid, and sheweth forth no letters patents. And the court was not a little in debate, whether this amounted to such a plea as gave the king a reversion by conclusion, whereby he should shew nothing; "but," saith the book, "to stint the strife, there came a writ "out of the chancery testifying the lease; and there was an ❝ end."

To the same purpose, the case is notable in the 22. of the book of Assise, fo. 24. An assise was brought against the Countess of Kent and John Fitz-Edmunds her son: and first, after some exception to the writ about the style of countess, the defendant pleaded that her husband held the land in chief of the king, and died, her son within age; whereupon the king seised, and let unto her during nonage; and demanded judgment, that the king not consulted with, &c.: "but," saith the book," she shewed nothing; but, after, there was a writ brought out of the chancery, reciting the seizure, with a "clause of rege inconsulto; and thereupon the court awarded "the plaintiff should sue to the king."


So in the case 11 H. 4. fo. 39. where in dower of Kent, the tenant pleaded the seizure, and if the king not consulted with, &c.; "but the court gave no heed to it" (saith the book), "till "the baron of the exchequer came, and brought in the seisure "in his hands, and thereupon the court awarded a suit to the

king;" but for the escheator, he must give oath of the seisure, and the counsel must shew this warrant; so as to the plea there must be a verification, but the king's writ must be believed.

And to conclude this point, I will put the famous case of Arden and Darcy unto this special point1: An action of waste was brought by Arden against Darcy, and Darcy pleaded the attainder of Arden, and the Queen's grant, reserving rent; Arden repleaded that there came to the king, by the attainder

This was the case Bacon had relied upon as a precedent for allowing the writ without argument.

of his father, only an estate for life; Darcy, after special verdict and argument, obtained the writ of the rege inconsulto; whereupon Arden's counsel spake, and alleged that the Queen could be at no loss, for that if the tenant for life granted his estate, rendering rent, and1 the lessor recovered the waste, he should hold charged: but the judges said, "The Queen hath cer"tified us by her writ, which is matter of record, that she shall "be at loss if this action proceed; which we ought to credit;" and so gave the rule, that Arden should sue to the Queen if he would.

For the fourth point, that the title of the king, which is Fourth point. in our case, "Whether the king may erect the writing of the "supersedeas into a new office? or whether Brownlow have right to it as belonging to his office of prothonotary?” cannot be handled upon allowance of the writ, is without all colour or shadow.

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For, first, it is ex diametro contrary to the intent of the writ; for the intent of the writ is, that this question shall be tried in a suit in chancery with the king; and now, under pretence of arguing the writ, you will enter into the title; this is to enter by the window, and not by the door; and that this may not be, there are infinite authorities.

As, first, you may see in 22 Assise, pl. 24. the Countess of Kent's case (mentioned before), where this writ was brought, reciting, that the king's tenant had died seised upon a gift in tail from the king, and that there the king had seized for wardship. Saith Pole, that was serjeant for the plaintiff, "Since the king's charter of gift of entail, the plaintiff hath "recovered by judgment against the tenant in tail;" and so prayed the assise. Saith Hill, justice, "That shall serve 'you for title, when the king hath sent us his pleasure; "therefore sue to the king."



So in 24 Ed. 3. Brooke, Aid del Roy, pl. 52. in a writ of entry against an infant, the tenant saith, that his ancestor had certain lands held of the Bishop of Durham by knight's service, whose temporalties are in the king's hands; and shewed letters patents of the wardship, and prayed his aid. Saith Wilby, "He should "have demanded judgment, if the king not consulted with, &c."; then the demandant would have pleaded, that the lands were

I have inserted this word.

I have corrected the text, following Fitz. Aid del Roy, pl. 90.

held in socage in gavelkind, and not in knight's service; and further would have pleaded, that they were not comprised in the patent; but the court rejected the plea, because it went to the title.

So 33 H. 6. fo. 2. Danby gives it for a rule, that whensoever a man hath a patent of the king of certain lands, and assise is brought against him of other lands, and he prays in aid, nient comprise is no counter-plea to the aid; and yet it seemeth that the patent by this is confessed and avoided; and that it is not ad idem, but should be discussed in the other court. The same is affirmed by Fitzherbert clearly; for so are the words, "that 66 upon the plea of rege inconsulto, grounded upon letters "patents, nient comprise is no plea." 27 H. 8. fo. 28.

So in 37 H. 6. fo. 32. the rule is given, that if in an assise the defendant plead, that such a one let unto him the manor of S. for life, the remainder to the king, and the plaintiff will say that he that let the land had nothing in the land; or, that the king took nothing by that lease; that shall not be tried in the first court, but in the chancery.

So in 7 H. 4. fo. 7. debt was brought upon a bargain and sale of goods, and the defendant said, that he bought the goods to the use of the king, and prayed in aid; and the plaintiff would have counter-pleaded, that they were bought to his own use, and not to the king's; but the court ousted him of that plea, for that shall be tried in the chancery.

In 38 Eliz. fo. 14. there the order of pleading and trial in the chancery is delineated and described in this manner: When the plea comes into the chancery, first the point shall be tried, whether the king be interested or no; which the books call sometimes the cause, and sometimes the warrant; and then you shall proceed to the title, and so to issue or demurrer; and if to issue, a procedendo ad capiendam inquisitionem tantùm, &c.; and if upon explaining the matter in the chancery (as the books call it), it fall out against the king, a procedendo shall be awarded in the nature of a command; and if it fall out for the king, there shall be a supersedeas omnino, and the court shall say to the parties, allez à Dieu.

Nay, further, the book of 8 H. 7. fo. 11. shewcth the learning notably, that if the plea be once in the chancery, although it be upon insufficient cause, the title shall be examined there for the king, and it is no error; so much regard the court had

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