The common law epitomiz'd with directions how to prosecute and defend personal actions, very useful for all lawyers, justices of peace, and gentlemen : to which is annexed the nature of a writ of error, and the general proceedings there upon : with a plain table for the easie finding out of every particular / by William Glisson and Anthony Gulston ...

Barr to an Avowry.

Tender of amends for dammage feasant before distress,* 1.1 or impounding is good; but not after∣ward, Coke 5. part. 76. A. 8. part. 147. A. Doct. & Stud. 112. B. Nat. br. 69. G. because then the party is put to more loss and trouble.

If there be tender of amends after distress, and afore impounding, the detainer is wrongful and not the distress, Coke 8. part. 147. A. Carpenters case. Q. for it seems the detainer is not wrongful, except he tender amends as well for his trouble and expences, as for the dammage done by the Cattel.

The tender of amends to the Baily is not good, Coke 5. part. 76 A. Pilkingtons case, 1 Hen. 4.15. pl. 17. for he hath not power to take it, for this belongs not to him as a Baily.

A claims Common appurtenant to such a house pro omnibus averiis magnis,* 1.2 and a verdict given

for him; and it was resolved after verdict, that although he doth not say (suis) it is good; 〈◊〉〈◊〉. although he said not Common appurtenant, Pasch. 15. Jac. Ban. Regis, for both shall be so in∣tended.

Disclaimer is a good bar,* 1.3 Coke 9. part. 34. Buck∣••••ls case, 15 Rich. 2. Avowry 214. viz. that the party who distrained d••d disclaim.

* 1.4Avowry, because A seised in see granted a tent to the Avowant, for which he distrains, the other pleads that A was seised in t••••; this is not good, if he traverse not the seisin in see, 11 Eliz. Dyer 280. pl. 16. for he might be seised also in see in remainder.

* 1.5Out of his see is a good Barr, and every Stran∣ger to the Avowry shall plead it, Coke 9. part. 20. A. 34. 15 Rich. 2. Avowry; for then the party cannot distrain there.

Note, Feodum dum homagium, & servitium,* 1.6 & non tenementum in dominico, Bracton lib. 2. fol. 46. B. Q. I suppose the meaning is, that there is see, wheresoever homage or services are due.

If one avow, the other need not say he took them in the high Street, but is put to his Action upon the Statute, 11 Rich 2. Avowry 87. which hinders the taking of such distresses.

* 1.7In an Avowry for an Amerciament affered in Court Baron de injuria sua propria, is a good barr, for the Custome is traversed by that plea, Mich. 13 Jac. Com. Ban. Baker & Banks.

* 1.8The Plaintiff says, that the Defendant ought to have inclosed, and did not do it sufficiently; ride the pleadings, 22 Eliz. Dyer 365. pl. 32. and that which is not sufficiently done is, as if it were not done at all.

* 1.9Conusance for dammage feasant, the other said that they are Coparceners; this is good, 10 & 11 Eliz. Dyer 280. pl. 15. for he is seized per my & per tout in all the Land, and therefore can∣not be a Trespasser.

* 1.10Nothing in arrear a good barr; but no Stran∣ger shall plead it, Coke 9. part. 20. A. viz. upon a distress for rent or services.

A release of Actions personals and reals plead∣ed in barr of the Avowry for a corrody granted with a distress,* 1.11 a good barr, 27 Edw. 3.81. pl. 13. for the distress is in the nature of an A∣ction.

When the Lord varies from the truth of the quantity of his services by reason of seisin,* 1.12 there the Defendant cannot traverse the seisin, Coke 9. part. 33. A. Com. 94. B. Mantels case, for the vari∣ance destroys not the seisin.

But if they differ of the quantity by reason of seisin had, there the seisin is traversable, Coke 9. part. 33. A. Bucknals case, Com. 94. B. Mantels case, 18 Edw. 2. Avowry 217. for the seisin is the chief thing in question.

Not seised generally is a good barr, for by this he shall have no remedy of the Lord,* 1.13 Coke 9. part. 34. B. Bucknals case, 22 Hen. 6.3 A. 30 Hen. 6. Avowry 15. but he shall only retain the di∣stress. Q. for he shall have dammages.

But if the Lord avow and alledge seisin by the hands of the Plaintiff or other person, the Plain∣tiff shall say, never seised by his hands, Coke 9. part. 35. A. Bucknals case, 22 Hen. 6.3. A. and this is a good barr, for here is a good issue ten∣dered.

The seisin is not traversable, but for that only for which the Avowry is made, Coke 9 part. 35. A. Bucknals case, 26 Hen. 8.1. pl. 1. unless seisin be alledged of a superiour service, as if tenure be alledged per Homage, fealty, and rent, and the Avowry is for rent, and seisin is alledged in all, the seisin of the rent is only traversable, Coke 9. part. 34. A. because the Avowry is only for the rent.

But if it be of Homage, Fealty, Rent, and Es∣cuage, and the Avowry is for Homage, and he alledgeth seisin in all, there the seisin of Escuage is traversable, because this is seisin of all, Coke 9. part. 34. A. Bucknals case, 21 Edw. 3.52. 13 Edw. 3. Avowry 103.19 Edw. 2. Avowry 224.16 Edw. 4.11. pl. 11. for Escuage includes all the rest.

Tenure by Homage, Fealty, or Escuage, or Suit of Court and other services, and seisin is alledged of all, he may traverse the seisin of Homage and Escuage, 2 Edw. 3.21. pl. 4. because they include the rest.

* 1.14Not seised within 40 years is a good barr, 32 Hen. 8. cap. 2. Coke 9. part. 36. Bucknals case, 14 Eliz. Dyer 315. pl. 101. for it is not likely; if he had any right, there would have been no seisin in so long time.

But he that pleads this, ought first to confess a tenure, to the intent that the Lord may have a Writ of Customes and Services, 15 Rich. 2. Avow∣ry 214. Coke 9. part. 34. B. Bucknals case. It seems the pleading so doth impliedly confess a tenure, or at least doth not deny it.

But this is no plea in an Avowry for rent upon a grant or reservation by deed, because the deed makes the Title, Coke 8. part. 65. A. Fosters case, and not the seisin.

Or upon a gift in Tail, because the commence∣ment of the Estate is within the time of memo∣ry, Coke 8. part. 64. A. Fosters case, 4. part. 11. A. Bevills case.

Or if it be for casual services, as homage, fealty, or to go to war, because perchance it may not happen within 40 years, Coke 4. part. 10.11. Be∣vills case, and so there could be no seisin of it.

So if the Lord release to the Tenant so long as A hath heirs of his body, because A may have heirs a long time after, Coke 4. part. 11. A. Bevilis case.

So if Land be conveyed to a Major and Com∣monality, which was held by homage and fealty, which conveys this over; this is no plea, because the Major and Commonalty cannot do homage or fealty, Coke 4. part. 11. A. Bevills case; for that must be done by one single person, and not by a body politick consisting of multitudes.

Note, 1. The Issue in tail shall avoid seisin by the hands of the Tenant in tail,* 1.15 Coke 9. part. 34. A. Bucknalls case, 34 Edw. 3. Avowry 131. for he comes in by the Donor.

But this is intended when the Tenant of the Lord makes a gift in Tail, the remainder in Fee; for the Tenant in tail shall himself avoid the en∣croachment and seisin made between by the Do∣nor, because he ought to shew the commencement of the reservation, Coke 8. part. 65. A. Fosters case, 10. part. 108. Lofields case.

2. Successor of a Bishop shall avoid seisin be∣••••en by the hands of the predecessor, Coke 9. 〈◊〉〈◊〉. 34. A. for the predecessors act shall not bind ••im.

3. Veray Tenant of the land, if he have deed ••od shew the contrary, Coke 9. part. 34. A. 10 Hen. ••.11. Nat. br. 163. C. 22 Hen. 6.5. 4 Edw. 2. ••••vry 201, 202. shall avoid seisin.

4. Encroachment of seisin is not material, there is no tenure, Coke 9. part. 34. B. Bucknalls ••se; for the tenure is the ground of the seisin.

5. Such seisin shall be avoided, because it was 〈◊〉〈◊〉 coercion of distress, Coke 9. part. 34. B. Buck∣••nll•• case, 12 Edw. 4.7. pl. 18. 8 Hen. 6.18. pl. 1. •••• Edw. 3.4. pl. 8. and not voluntarily rendred, 〈◊〉〈◊〉 is in the nature of a thing obtained by Duress.

6. If rent be payable at one day in a year, and the Lord encroacheth seisin upon two days of the year; this being involuntary, yet shall be avoided is an Avowry for this, that they agree in the ••••••ual sum, Coke 9. part. 34. B. Bucknalls case, ••ide 21 Edw. 4.64. pl. 36, & fol. 84. pl. 39. and the ••••me is only in question, and the Lord is not lessen∣ed in the rent.* 1.16

In an Avowry the seisin is traversable, and not the tenure, Crooke 13 Hen. 7.31. B. for without seisin the Avowry is not issuable.

1. When the Lord varies in avowing of the ••erity of the quantity of the services by colour of seisin, the tenure shall be traversed, Coke 9. part. 33. A. Bucknals case, 10 Hen. 7.11. pl. 31. Com 94. Mantels case, Crooke 13 Hen. 7.31. B. ••iz. he may say, that he holds not by so much ••••nt, or so many services.

But then the Tenant ought to confess the Te∣nure in part, for he needs not traverse all the tenure, as to say that he holds not of him; but he may disclaim or plead out of his fee, Coke 9. part. 35. A. Bucknals case, 10 Hen. 6.6, 7. pl. 20. 37 Hen. 6.25. pl. 13. 15 Rich. 2. Avow∣ry 214. as to part.

But note 11 Hen. 4.10. pl. 22. the Tenant said, that the Avowant did give the Lordship to A in tail, the remainder to B in tail, and that A died without issue, B yet living; there he needs not suffer a Disclaimer, or plead out of his fee, but there fol. 7. pl. 40. he had judgment of the A∣vowry, and admitted good.

2. When they agree in the quantity of the Services, and vary in the quantity of the Land; there the Plaintiff may traverse absque hoc, that he held modo & forma, or say that he held one Acre only, Coke 9. part. 35. B. Bucknals case, 20 Hen. 6.20, & 21.

And so one may avow severally where it is a joynt Tenure, or to the contrary, Coke 9. part. 35. B. Bucknals case, 9 Hen. 6.26. pl. 24. 2. Edw. 3.34. pl. 19.

But if he vary in the quantity of the Land and of the Services, he may not confess the Te∣nure according to the verity of the case, but may traverse mode & forma, or say he held one only, Coke 9. part. 35. A, & B. Bucknals case, 5 Hen 5.4.

3. When one distrains for fealty, rent, and suit of Court, and alledges seisin in all, and avows for rent, the Tenant may confess that he held by fealty and rent, and plead as to the rent nothing arrear, without that that he held by fealty, rent,

••nd suit, modo & forma, as is alledged, and good; ••••d if upon Issue joyned it be found, that he ••eld by fealty and rent, and not suit, although that ••he Avowry be for rent, yet insomuch that the tenure alledged by the Avowant was traversed and found against him, Judgment shall be given against the Avowant, for in vain shall he make this traversable, and yet that he should have the return when it is found against him, Coke 9. part. 35, & 36. Bucknals case.

Tender of Homage ought to be to the person of the Lord,* 1.17 ubicunque fuerit infra regnum pro∣per reverentiam, Bracton lib. 2. fol. 80. A. quaere. for this may be prejudicial to the Tenant.

Notes

• * 1.1

  Amends.
• * 1.2

  Common.
• * 1.3

  Disclaimer
• * 1.4

  Grant by Tenant in tail.
• * 1.5

  Out of his Fee.
• * 1.6

  Note.
• * 1.7

  Injuria sua propria.
• * 1.8

  Ought to in lose and did not.
• * 1.9

  Coparce∣ner.
• * 1.10

  Nothing in arrear.
• * 1.11

  Release.
• * 1.12

  Seisin.
• * 1.13

  Not seised.
• * 1.14

  Not seised within 40 years.
• * 1.15

  Seisin a∣voided in Avowry.
• * 1.16

  Tenure.
• * 1.17

  Tender.