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 "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

to the shadow only of the king's title, and the dignity of the court of chancery.

Therefore I conclude, that if in our case Mr. Brownlow will say, that the king nothing had in the office or fee to grant, and so the writ maketh no title for him; Mr. Brownlow knocketh at the wrong door, for that he shall allege in chancery.

For the objections: First, it is a mere cavillation, that be- Last point. cause we have declared of a new office, and an old fee, that upon this the court is bound to take notice that the king hath no title.

For, first, this goeth to the title, and therefore cannot now be questioned, as I have proved before.

And, second, who knows not, that by the same fees are intended the like fees; which is the same in predicament, viz. in quantity; whereof I might put you infinite trivial cases that every mootman knoweth, that idem redditus shall be similis redditus, and why not eadem feoda be similia feoda: but I suppose that Mr. Attorney that then was, thought this the fittest and most honourable form of penning the patent, because it doth point out and demonstrate that the king raiseth no new charge upon the subject; and besides, most of the precedents of the patents which I recited before, are penned in the same manner.

As for the second objection, which is more of clamour than of argument, and rather to be chastised than confuted, "that "by this means all suits may be stayed upon a supposed right "of the king's ;" this is, I hope, at an end. You see that this writ is no delay, but a bringing of the plea to the proper court. And the very same may be said of the praying aid, for affirming the reversion of the king, without any thing shewing; which may be done in all assises of lands and tenements, in respect of the king's reversion gained by conclusion.

The like may be said likewise of all writs of rege inconsulto certifying of the king's seizures; which are peremptory, that' they should not be tried; and the king may recite what he will, for it cannot be counter-pleaded.

As for that point which Mr. Solicitor did admit, I shall differ from him; I think he went too far. Saith Mr. Solicitor, The judges may ex scrinio pectoris 2 take notice of the right of an office in their own court, and of the law thereupon; so that

1 Printed "though."

VOL. VII.

3 A

Printed "prætoris."

if any thing contrary to that be recited in the king's writ, they are not to be bound thereby ; but I say the law is otherwise, for it is but reputation of right, and not certainty of right, that the court may concede upon usage and their private knowledge; for the court knoweth not what records or other proof may be shewed on the king's part. I pray let the king have that measure against the subject, that the subject hath against the king; and you shall find the subject's right shall not be prejudiced upon a private notice of the court, that it is not judicial. And for that take 25 E. 3. Fitzh. Aid del Roy', where in a præcipe the defendant made default, and it was alleged, nay it appeareth upon evidence, saith the book, that the reversion was in the king; and, saith the book further, the court would take no heed of it, but saith, it behoveth to bring a writ in the nature of a receit, and then we must give credit to it. And yet if this conceit pleaseth any man, it is not our case; for this might have been alleged if the assise had been brought in the common pleas, for Brownlow is an officer there and not here.

And lastly, if there should be some incongruity in the writ, as I know it was formed of as good counsel (not speaking of myself, but of the rest) as is in England, or hath been; but if, I say, Mr. Brownlow will read us a lecture, he is never the nearer, for we can have a new writ if we will: it is not like double aid, if there should be fault in this writ. But sure I am that the matter is infallible; that whether this office and fee be lawfully created and confirmed by the King by his letters patents to Michell, or whether it be in disturbance of the freehold of Mr. Brownlow, this must be discussed penes ipsum regem; and if I were to advise again, I would not alter one word of this writ.

Now, as for the command of this writ,-by myself, long since, when I first opened this case in this court, truly distributed into four kinds :

A minatory commandment;

A conditional commandment;

A peremptory commandment, temporary;

And a peremptory commandment, absolute and peremptory. The first kind is the circumspectè agatis, where the writ purporteth an admonition to the court to be circumspect in their

1 Apparently a wrong reference.

proceedings, that they do nothing in prejudice of the king, without any other commandment of stay.

The second is, the si vobis constare poterit, where the writ doth lay it upon any special point, the truth thereof to be examined being left to the court, so as the commandment is conditional.

The third is, where the writ is peremptory, but yet is for a time, and is donec aliud habueritis in mandatis, or nobis inconsultis non procedatis, which implies as much; and of this kind is our writ.

And the fourth is supersedeas omnino, with an allez à Dieu to the plaintiff; which final writ is never but after the discussing of the plea in the chancery.

For the court's obedience, which is the relative to the mandate of the king, I said in the beginning, that the judges have ever been the principal examples of obedience to the king; and I will note unto the court four points, which I find in their predecessors concerning this writ.

First, their wisdom and circumspection; for I may truly observe, that when this writ was brought, they have ever done less than their warrant.

So you see in the case 21 E. 3. where the writ was but a circumspectè agatis, yet when the plaintiff's counsel urged they might at least take the verdict, yet the court stayed presently.

So likewise in divers cases, where the writ was conditional, si vobis constare poterit; yet the court had no mind to meddle in it after that writ brought, nor to examine that point, which seemed to be left to them at large.

So as still their obedience was more absolute than the commandment; and the court hath ever esteemed this writ as a thing sacred: for as it was the right of the Romans, that where a man's wall joined to a temple, if the owner had occasion to pull down his house, he left some of his own wall, lest he should touch the sacred wall; so the court would never venture upon the utmost bound of this writ, lest they should touch upon violation of the king's command.

Secondly, I note the reference which the judges used in 2 R. 3. in Hunston's case, where, after the writ was brought by the king's attorney, the judges would not suffer any public argument, but assembled in a private manner, the door shut, and upon conference agreed to obey the writ, for they thought

[Bro. Aid del Roy. 69.j

it a thing of no good example to dispute the king's commandment; as if they were like the soldiers which Tacitus speaketh of, erant in officio, sed tamen quasi mallent imperantis mandata interpretari quàm exequi.

Thirdly, I note the great humility of the judges in the phrase of the court upon this writ, where still they say, their hands are closed; as if they were turned statues or images, and that they had no power or motion.

Lastly, I may note the danger of your predecessors in 1° of the book of Assise, where, although this writ was not brought, yet because the court did not of themselves er officio regard sufficiently the king's title, it was said, the justice was suspended from his office, and was in moult graund danger.

To conclude, I will reduplicate that which I said in the beginning, that this writ did ever stay the suit when it came, except only in two cases.

The one in a direct case of an act of parliament to the contrary, quòd non supersedeant, as in Bedingfield's case, 28 Eliz.

And the other is where in respect of a mischief, the court did proceed only de bene esse, lest that a procedendo should after come, and come too late.

The case was', that an action of deceit was brought, and before the summoners were examined this writ came; whereupon, after Danby had said that their hands were closed, Prisot very worthily untied the knot; saying, "The mischief "is great in this case, for, if the summoners should die before "examination, the plaintiff hath lost his action and his land for "ever, although a procedendo should come after;" and compared it to the case of the writ of error for infancy, where perhaps the infant was near his full age: if the writ should be brought of the rege inconsulto, and then the full age should run on before inspection, the writ of error was gone and lost, and the fine good for ever. "This therefore will we do," saith he: "examine the summoner de bene esse, but with protestation "withal, that we expect a procedendo to come." This was good justice, and yet true obedience; but in no other case shall you ever find that the writ was disobeyed.

Therefore I will end with this to your lordship and the rest, that obedience is better than sacrifice; that is a voluntary thing,

1 35 H. 6.

2 Printed "it"; the two words are easily confounded in abbreviations. The reference is obviously to sacrifice.