The touchstone of precedents, relating to judicial proceedings at common law by G.F. of Grayes-Inn, Esquire.

Avowry, vide Replevin.

AVowry for an Amerciament in a Court Baron quia presentatum fuit, that he was Summoned and came not, and alleadges in fact, that he was resident &c. as he must &c. for when tis only presentatum &c. and not alledged in fact, 'tis ill. Mo. Pl. 221.

In Avowry it was set forth, that a Dean and Chapter were seised in Jure Ecclesie, and not said seized in Fee, and held ill: for they might be seized per auter vie, and their Ti∣tle ought to be certainly set forth, and this is but that they made a Lease for 99 years, per dodrige if it had been that they made a Lease for 200 years, it had implyed a Feoff∣ment in Fee Pop. 163. Latch. 121. Avowry

Avowry for damage feasant, and shews a Lease from I. S. seized in Fee: the Plaintiff says I. S. was seized in Tayl, and conceives the Estate to himself as Heir; the Avowal seizes the Land rendring Rent, and that he had accepted it, Qu. If it be not a departure. 1 Jnst. 304. It seems a fortifying of the Avowry, and so not, Sti. 41. Taylors Case, Yelv. 134. Wood versus Haukshind. i. Cro. 156. 2 Cro. 121. 3 Cro. 404 Dy. 956. 1 Jnst. 304 Hob. 271 Dy. 103. 253 b. Yelv. 96 Leon. 32. 156.

Avowry on a New Grant of a new Rent-Charge in Fee, the Plaintiff pleads, that no∣thing passes by the Deed; 'tis an ill Plea, he should have said that he did not grant by the Deed; for a thing not in Esse, could not pass though it was raised by the Deed, Stewards Case. 2 Leond. 13.

Avowry by an Executor for Rent reserved by her and her Husband upon a Lease for years derived out of a Lease; Exception ta∣ken, because not shewed when the Husband dyed, so it appeared not due in his time but because all belongs to her, one way or other, Wellwood in Newman Latch 121 Pop. 163.

Costs to the Avowant upon 7 H. 8. c. 4 vide Common et Commoners, Sect 4.

Costs given to the Avowant for Damage-Fesant, by 21 H. 8. c. 19. Cro. 1. James vers Tutneg 532.

Replevin against 3, the one Avowes, and the other 2 makes Conusance, and Judg∣ment against the Plaintiff; but reversed, because that those two did not make Conu∣sance as Bailiffs to another. Yelv. Owen vers Williams, 108.

The Lord hath still his choice to avow as at the Common-Law, but if he will take the Benefit of the Statute, then the Privity on both sides is removed, and the Tenant shall Plead any discharge though he be a meer Stranger; for the Charge of the Land is only in question, though in that Statute 21 H. 8. there be no literal Provision so to be. Hob. Brown vers. Goldsmith 108.

Avowry for 5 l. and 80 l. nomine poenae, no demand of the Rent was alledged, which made it unsufficient for the penalty; but Retorne adjudged to him, for they appear∣ed to the Court to be several. Hob. 133 How∣el vers Samback.

If the Donee Alien, the Donor cannot Avow upon the Alienee Keilway. 130. b.

Prescription, that if one be chosen Con∣stable at the Leet he must serve himself, or find a sufficient man to do it; and the Avow∣ant saies, that the Plaintiff was chosen; and did not find a sufficient man to serve; upon which it was demurred, and Adjudged, That the Avowry was ill. Escot vers Stokes. 14 Car 2. in B.

One who is a Stranger to the Avowry shall not Plead any Plea but hors de son Fee, or some other which is Tantamount.

As Lord and Tenant, the Tenant makes a Lease, the Termor shall plead no Plea but hors de son Fee, because that he is a Stran∣ger to the Avowry, and he cannot have a Writ of Mesne, because it is a Maxime, Where a man cannot be helped by way of Action, he shall be aided by way of Rever∣sion.

He that is a Stranger to the Avowry can∣not disclaim, for a man cannot disclaim in auter droit. An Abbot cannot disclaim, nor Tenant in Tail. Mich. 9 E. 4. fo. 34. Hill. 8 H. 5. Disclaimer 11. 26.

If a man hath common by Especialty, as in Land held of me, the Rent is not arrear, if I take the Beasts of the Commoner I do him wrong, and he shall recover damages; for he may Plead rien arrere, although that he be a Stranger to the Avowry.

If the Tenant be in arrearages with his Lord, and the Tenant makes a Feoffment in Fee, which was notice to the Lord; in this case the Lord may choose whether he will take him for his Tenant or not, if he will not tender him his arrearages; and the reason is, if he will accept him for his Tenant ge∣nerally, he shall never be received to avow for the arrearages afterwards.

But if the Tenant dye, so that the Tenan∣cy discends to his Son, or that the Tenancy is recover'd, or that the Tenant hath forjudg'd the Mesne, so that he is become Tenant to the Lord Paramount, in all these Cases he shall accept them for his Tenants, and make Avowry upon them for all the arrearages; and the reason is, because they are become Tenants to him against his Will.