Page:Prerogatives of the Crown.djvu/271

Ch.XII.] Inquests of Office. 251 " The possession of the King," says Staundford (a), " is of , two sorts, in law and in deed; in law merely by force ofi law ; in deed, by actual taking by an officer, though without ', office found. " An office that entitleth the King to possession is suffi- , cient by itself, without any seizure or entry of the escheator, to ' make a possession in deed in the King, if it be so that the pos- ^ session were vacant when the office was found. But if the' possession were not vacant, but another than he in whose right ' the King seizeth, was tenant thereof at the time of the finding of the office, then must the King enter or seize by his officer, , before the possession in deed shall be judged in him. And if t his Highness seize not by the space of a year and a day after ^* the finding of the office, then may he not seize without a scire [ facias^ to be pursued against him that is tenant thereof. But * hereupon is there a distinction to be made, whether that the King is entitled unto by office, be it a thing manual, and whereof profit may be taken forthwith, after the finding of the office, or not. For if it be such a thing as is not manual, and whereof there is no profit to be taken forthwith, until such time it falleth, in that case, although the King be in possession of the right of the thing, yet is he not in possession of the profit thereof, until such time as his Highness actually by his officer, when it falleth, taketh and perceiveth the said profit. As for example, the thing the King is entitled to is no land, but ad- vowson, rent, or a common, although that the King by this office be patron of the advowson, or owner of the rent, or com- mon, and thereby when the benefice becometh void may pre- sent, or when the rent becometh, may receive the rent, or when the common is to be taken, may use the said common ; yet, if the office that entitleth his Highness be false, and he that was in possession at the time of the office taketh the profit, whether it falleth before the King's officer do take it, in this case this taking is no intrusion upon the King's possession, for he was never seized in deed : wherefore, being driven to his action, if his Highness bring his qiiare impedit, or action of trespass, the defendant may traverse the office with him in the said actions, keeping still his possession, and need not to sue in the Chan- (a) Prserog. Regis, 54, b. ch. 18. nised in Finch, Law, 325. 9 Co. 95, b. And see the doctrine of Stauudf. recog- Com. Dig. lit. Prerogative, D. 68, 69.' eery