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 ...

1. The Barr. 2. Justification. 3. Conusance. 4. Avowry.

[unspec 1] No Barr that the Plantiff is possessed of the ••••tel, Nat. br. 69. H. for he ought to have dam∣••ages for the wrongful distraining of them.

That he took them not, a good barr, Lib. Intra. ••1. B. Sect. 1.565. C. Sect. 1, 2. 19 Edw. 3. Aid 28. 〈◊〉〈◊〉 that disaffirms the Replevin, viz. the supposal 〈◊〉〈◊〉 the Writ.

Claim of Property, 26 Hen. 8.6. pl. 27. 31 〈◊〉〈◊〉. 6.12. for then it was lawful to take them as ••••own.

This may not be by way of Avowry, 31 Hen. ••.12.

In Replevin of grain it is a good Barr to say,* 1.1 〈◊〉〈◊〉 was his Wises dum sola, and that the Plaintiff ••••••endred it to her, 30 Edw. 3.9. pl. 3. for by the ••arriage the interest is his.

* 1.2When a man cannot have the thing for which 〈◊〉〈◊〉 distrains, then he may justifie the taking in lieu 〈◊〉〈◊〉 the thing, and not avow to keep it till he have 〈◊〉〈◊〉 thing it self, per Curiam, 19 Hen. 6.41.••83.

But 22 Edw 4.36. B. è contra, Collow. Q.

If a man distrain for Services, and the Tenant 〈◊〉〈◊〉, in Repleg. brought by the Executors, he shall ••••fie, but not avow, 17 Edw. 3. Executors 106. the can make no title against them, but he may ••••ifie the taking.

Because he cannot have a return for the same thing against the Executors, 22 Edw. 4.36. B. Collow.

If a man distrain for Services, he may justifie or avow at his Election, 15 Edw. 4.29.

In every case where he may avow, he may justi∣fie, for he hath done no wrong: sed non è contra, 5 Edw. 4.6. Young; for he may have done no wrong in taking, and yet may not be able to maintain an Avowry.

A man may justifie for Rent determined, but not avow, viz. for Rent arrear before it was de∣termined, Mich. 33 & 34 Eliz. Com. Ban. God∣dards case; because he cannot make a Title.

Tenant at sufferance may justifie a distress for dammage f••asant, 4 Hen. 7.3. pl. 6. for he hath a Title against a Stranger.

One makes Conusance of the distress for dam∣mage feasa••t in the Frank-tenant of his Master, 10 & 11 Eliz. Dyer 280. pl. 15.21 Eliz. Dyer 365. pl. 32. and good in the behalf of his Ma∣ster.

Conusance as Baily of A, and that he took them dammage feasant in the Land that his Ma∣ster had for years, 2 & 3 Mariae Dyer 117. pl. 76. and good.

Conusance as Baily to the Parson of D, which claims a Rent by prescription, and a distress for it, and good, Lib. Intra. 557. Charge 1.

He cannot avow for Rent determined, but may justifie, Mich. 33 & 34 Eliz. Com. Ban. Goddards case, antea; because his Title to the Rent is gone.

1. Avowries for Rent-services are twosold,* 1.3

••. pe•• Common Law; and 2. by Statute Law, ••••••e 9. part. 134. B. Ascoughs case.

2. One may avow upon one, as upon his veray ••••mant by the manner, scil. when the Tenant ••••sed it for life, or made a gift in Tail, the re∣••ainder over in Fee, 20 Hen. 6.9. B. for he is 〈◊〉〈◊〉 bound to take notice of such a lease or gift.

But then the Lord ought to shew this special ••••tter in his Avowry, 15 Edw. 4.12. A. Catesby, ••••e 4 Hen. 6.14. pl. 11. Quaere.

3. Upon one as his Tenant by the manner, when ••e Lord hath but an estate in Tail, or a lesser ••••te in the Lordship, or when the Tenant hath ••••••sser estate than Fee-simple; for neither of these ••••ders him from being Tenant, 21 Hen. 6.22. 〈◊〉〈◊〉. 2. 2 Hen 4.24. pl. 13. Hank••ford.

4. Upon the matter in the Land generally, as ••ing within his see and Signory, 38 Hen. 6.23. 〈◊〉〈◊〉. 7.

5. Upon the Land by any Lord generally, per 〈◊〉〈◊〉 Hen. 8. cap. 19. as in Land within his Fee and ••••gnory, without making Avowry upon any person certain, Coke 9. part. 136. Ascoughs case; 〈◊〉〈◊〉 the Avowry is in respect of the Lands held, ••ed not of the person.

Notes

• * 1.1

  Grain.
• * 1.2

  2. Justifi∣cation. Difference between a Justificati∣on and an Avowry.
• * 1.3

  Quotuplex.