coke a the case OF a avowry in the king bench if there be lord and tenant by  fealty and rend and the tenant make a lease for year and the lessor have do  fealty and pay the rend continual and the lord distrain the cattle of the  lessee for the rend when none be in arrear and avow upon a coke report b er p  stranger who never have any thing as upon his very tenant for the arrearage of  the rend the lessee upon special matter plead may have aid of his lessor and  shall abate the avowry make upon he who have nothing if when the lord come to  distrain the tenant drive the cattle into other land not hold of he and the  lord fresh follow and distrain they there this be within the stat h for the  view of the lord and his fresh suit be in judgement of law a take within his  fee if one come to distrain for damage pheasant and see the cattle and the  owner drive they off he can distrain they damage pheasant but be put to his  action of trespass if there be lord mesne and tenant and the lord avow upon a  stranger and not upon the mesne the tenant can plead any plea as nothing in  arrear c nor can he by special plead pray in aid of the mesne but in such case  if the mesne pay the rend and do the service and yet the lord distrain the  tenant paravail for they and impounds his cattle the mesne upon request by the  tenant may put his own cattle in the pound in lieu of the cattle of the tenant  and bring replevin and compel the lord to avow upon he and if the mesne will  not do it on request the tenant shall have a writ of mesne and recover his  damage if the lessee in the principal case or if the tenant paravail in the  case of the mesnalty be present when the lord or his bailiff come to distrain  if nothing be in arrear he may make rescous vin ab avow b a pl pale yellow Rep  in the case of a avowry in the king bench this point be principal move and  debate that be to say if there be lord and tenant by fealty and rend and the  tenant make a lease for year and the lessor have do fealty and pay the rend  continual and yet the lord distrain the cattle of the lessee for the rend when  in truth none be in arrear and avow upon a mere stranger who never have any  thing as upon his very tenant for the arrearage of the rend if the lessee  shall be without remedy in this case and the opinion of Prisot a postea a b  Fitzherbert avow Br avow Br aid a h be object where he hold that if there be  lord mesne and tenant and the lord avow upon a strangor and not upon the mesne  the tenant be without remedy and so if a termor bring a replevin and be avow  upon other than the lessee the termor be without remedy and that the common  opinion of all our book be that a b Doct pl see e per Wilby b stranger to the  avowry shall not plead nothing in arrear or a tenure by lesser service or any  other plea but only c   light b c out of his fee or a thing which tantamounts  e b a e avowry e avowry e a b e a h a b h a b h a b h h b e e b h h a b h b it  be say that it be a position in law that a stranger to the avowry shall not  plead but out of his fee c it be also object that lessee for year can not pray  in aid of his lessor and so make he party to plead because the lessor be a  stranger to the avowry and the lessee may plead as much as the lessor himself  may and that be out of his fee and so be the book roll in coke b e a e b e  avowry e d e aid roll d aid e a e a h a b h b h b c unless the lessee make his  lessor privy in estate to he upon who the avowry be make vide e avowry yet it  be resolve that the lessee for year shall be by law relieve in this case and  for the better understanding of the law in this case two difference in law be  observe first as have be say a a Doct plan a stranger to the avowry shall  plead nothing but out of his fee or a thing which tantamounts and that be true  as to the plead coke report a er p of any matter in bar of the avowry but the  right tenant although he be a stranger to the avowry yet be make party he  shall plead matter in abatement of the avowry as shall appear another  difference be when the lessee for year or for life shall have aid of one who  be a stranger to the avowry and when not for upon a b roll b general  allegation that such a stranger be seize in fee and lease to he for life or  year he shall not have aid as the book before cite prove because it will be in  vain in such case to grant aid when the lessee may plead out of his fee as  well as his lessor but upon special matter disclose he shall have aid of his  lessor who be very tenant and therefore if the lessee in such case allege that  his lessor be and c roll c yet be seize of the tenancy in his demesne as of  fee and hold it of the lord by the service c of which service the lord have be  and yet be seize by the hand of the lessor as by the hand of his very tenant  and that the tenant have lease the land to he and that the lord to charge the  plaintiff unjust have avow upon one who have nothing in the tenancy and  thereupon be pray in aid of his lessor in this case upon this special matter  he shall have aid because without his lessor he can plead this matter in  abatement of the avowry nor shall the lord be compel to avow upon the lessor  and by this special matter there appear true privity in estate and signiory  betwixt the true tenant and the lord so that there want no privity in this  case nor will the law esteem he who be true tenant in law to be a stranger to  the lord and the false avowry of the lord upon the stranger who be not tenant  shall not hurt the lessee against the truth of the case because veritas  nothing really nisi to put out of sight and the law will never suffer a  falsity to suppress truth and this be well prove by the book cite before as  take one for example in the say book of e coke a d roll Fitzherbert aid d a  the case be such a bring a replevin against William Weyland who avow for  rentservice upon the issue in tail the plaintiff show that a stranger to the  avowry lease to he for life and pray in aid of he and be oust of the aid  because the lessor can not plead more than the lessee because they be both  stranger but there upon special matter plead he shall have aid of he to the  end that both may join in a plea of abatement of the avowry which the lessee  himself alone shall not plead for the lessee to have aid may say that the  donor before the statute feoff the donee in fee to hold of he and that the  lessor be assignee of the feoff and have tender the service and compel the  lord to avow upon he to which sir Richard Wilby chief justice who give the  rule say plead then this matter if you will have aid which case prove both the  difference know that a stranger to the avowry shall compel the avowant to avow  upon he which be as much as to say that he shall abate the avowry make upon he  who have nothing and compel the lord to avow upon he who be his right and true  tenant that upon such special matter which tend to drive the lord to avow upon  his very tenant he shall have aid of a stranger to the avowry and the law  require that the lord shall always avow upon he who be his tenant in right and  in law and to do it the lord shall be compel by special plead and therewith  agree Littleton cap release foe if the tenant be seize and the lord take the  cattle of the disseizee and he sue a replevin and the lord avow upon the seize  who be tenant in possession the disseizee by plead of the special matter shall  abate the lord avowry upon the seize and a light b light sect   light a   b a  post b a compel he to avow upon he because the disseizee be tenant to he in  right and in law vide b   light a b h b by Newton c e b per Finchden Br avowry  l Fitzherbert avowry postea l b c e by Fitzherbert a strong be made the  principal case when the lord avow upon one who have nothing upon the special  mattershewed the lessor shall join in aid to the lessee and shall abate the  avowry make upon he who have nothing and compel the lord to avow upon his  tenant in right and in law and therewith agree e b a Hugh de luche bring a  replevin of his cattle against W de Stringlond who avow upon three sister as  daughter and heir of Alice sage by reason that they hold of he coke report b  er p certain tenement by homage fealty and escuage and by the service of ten  shilling per annum etcetera and for homage arrear he avow to which the  plaintiff say true it be that Alice sage hold of you the say tenement by  fealty and sixpence per annum for all service which Alice do feoff we of the  same tenement and we have oftentimes tender coke b our fealty judgement if you  can avow upon other than upon we or for more service than c to which plea in  abatement of the avowry exception be take because the plaintiff be a stranger  to the avowry to which it be answer and resolve that the plaintiff be privy  enough because he be tenant of the land and have tender the service and there  it be express say that the issue of this avowry can not be take on the right  of the service but abate the avowry and compel the lord to avow upon the  plaintiff and then may they plead to the right of the service d before a Br  avowry Fitzherbert avowry d e b by Finchden e avowry send for vide e a b e Br  avowry e h b e avowry a strong when the lord shall avow upon one who have  nothing in the land h who be the very tenant and by who hand the lord have  receive the service shall compel he as Littleton f before a f say to avow upon  he vide h a and in e avowry the plaintiff be oust of aid because he do not  show the special matter to give he cause of aid and in this point the law be  curious for although the lord avow upon the right person yet if he do not  convey to he his true title to the land his avowry shall abate and therefore  if a man avow upon one as heir to his mother where he be heir to his father  this avowry shall abate e avowry h h avowry e vide e a so if in replevin the  defendant avow upon the plaintiff as upon his very tenant the plaintiff in  abatement of the avowry may say that he have nothing but for a term of life of  the lease of W the reversion now to his son and heir and pray in aid of he to  the intent to compel the lord to avow upon he who be his tenant in law and  therewith agree h and Fitzherbert in abridge the case title aid say that this  plea go in abatement of the avowry and for this cause by the rule of the book  he have aid of a stranger to the avowry vide e aid tenant in dower have aid of  the heir in reversion who be a stranger to the avowry and the great wisdom and  policy of the law be well observe which have full provide for the remedy of  this case for in avowry for rentservice c the plaintiff be tenant for year or  for life shall have aid of his lessor before issue join because without he the  lessee can plead as appear in a Fitzherbert joinder in aid a h e a e a e b  Elizabeth dyer b dyer pl b to the end the rightful and very tenant join with  he may abate the feign avowry make upon he who have nothing or upon one who be  not rightful tenant and compel the lord to avow upon he who be tenant in law  and it will be a great absurdity and defect in the commonlaw if the false and  feign coke a avowry upon he who have nothing shall charge the termor with  arrearage of rend where none be due and law England non suffer absurdum and if  any such defect have be in the law as be object the maker of the Act of c    light b c h c will have provide a remedy as well for the tenant and all lessee  and other stranger to the avowry against the lord as they do for the lord  against the tenant and their lessee as appear by the preamble and not to have  bind the tenant lessee c and leave the lord at liberty and it be say at the  bar that in some case the lord be leave to the commonlaw and can not avow  within the say Act of h and that be when the lord come to distrain and d    light a b Inst h a Br distress Plowd a Fitzherbert distress Fitzherbert  rescous Br avowry in fine d see the cattle upon the tenancy and the tenant  drive they off into other land not hold and the lord fresh follow they and  distrain they there as be well may as it be hold in e b r rescous h a h a h b  e a b that this case be coke report b er p out of the say statute because the  purview be if the lord distrain upon the same manor land or tenement c that  the lord of who the same land tenement or hereditament be so hold may avow as  within his fee and seignory and the distress be take in land not hold of he  nor in his fee and seignory and therefore this case be out of the say Act but  it be resolve that this case be within the purview of the say Act for it be  clear within the mischief within the preamble and the Act be make to suppress  fraud upon the matter the distress be take upon the land hold for the lord can  distrain out of his fee but the view of the lord and his fresh suit make the  distress to be in judgement of law take within his fee or a thing which  tantamounts and as Thorp say in e b the take shall always refer to the first  place and it will be inconvenient that the act of the tenant himself against  who the Act be make shall make the good Act of little or no effect but notam  reader if one come to distrain for e Plowd a   light a e damagefeasant and see  the cattle and the owner drive they off he can distrain they damagefeasant but  be put to his action of trespass e b e avowry for there the cattle ought to be  damagefeasant at the time of the distress and so a difference and as to the  other case which Prisot put know if there be lord mesne and tenant and the  lord avow upon a stranger and not upon the mesne the tenant be without remedy  and it be urge that it be good law for the tenant upon any special plead as in  the case of the lessee coke b can have aid of the mesne because he be tenant  in feesimple and the mesne can join with he because he be a stranger to the  avowry for the mesne shall never join with the tenant but when the avowry be  make upon the mesne and both these point be resolve in a Br Mesne post a a Br  replevin a e a b and in other book e joinder in aid e a b the abbot of Furneys  case and there be a defect observe in the commonlaw in such case which be pray  to be amend and reform by the justice as in other case to avoid mischief they  have do vide e a b and it be resolve and well agree that the opinion of b  postea a b Prisot in this case be good law to the end that Prisot intend for  it be true that Prisot intend that the tenant be without remedy either to  plead any plea or to plead nothing in arrear c because he be a stranger to the  avowry or by by special plead to pray in aid of the mesne for as have be say  he be tenant in feesimple and can pray in aid and the mesne can join with he  because the lord have not avow upon the mesne and therefore as to these three  way the tenant as Prisot intend be without remedy and his opinion as to these  be well warrant by the authority of the say book but that the commonlaw have  leave the tenant without any remedy in such case it appear full and common to  the contrary in our book and therefore when there be lord mesne and tenant and  the mesne pay the rend and do the service due to the lord and yet the lord c  roll f n b h   light a c distrain the tenant paravail for they and impounds  his cattle in that case the tenant may immediate resort to his mesne and tell  he the case and pray he to acquit he now the law have give power to the d post  b a   light a d mesne to go to the pound and take the cattle of the tenant  paravail out of the pound and deliver they to he and put his own cattle in the  pound in lieu of they and sue a e   light b e replevin and so make himself  party and then if the lord will avow upon the stranger he may show the truth  of the matter and abate any feign avowry make upon the stranger and compel the  lord to avow upon he who be his true tenant in law and although not distrain  in his default be a good plea in a writ of mesne yet if the mesne will not do  it upon f post a e a f request the tenant upon the matter be distrain in his  default and therefore he shall have a writ of mesne and recover his damage as  it be hold in g   light a Br Mesne roll Br replevin g h a b coke report a er p  e e joinder in aid e b h roll Br replevin   light a h h a b e a b f n b h and  if the lord will not suffer the mesne in such case to take the cattle of the  tenant out of the pound he be a I Perk sect Cr James Fitzherbert trespass  before a   b I trespasser ab beginning for be do not use they accord to the  nature coke a of a distress and therewith agree king before b Br Mesne Br  replevin post a king e a b but let the tenant look to it that in such case he  sue not a replevin of his good and have deliverance of they for that shall be  account his own folly that he do not make request to the mesne ut above for  then if the lord shall avow upon a stranger the tenant be without remedy by  his own default but in such case after the tenant have deliverance of his  cattle by replevin if the lord avow upon the mesne there the tenant may  request the mesne to join with he to plead in his discharge and if the mesne  will not the tenant may have a writ of a   light a a mesne against he and  recover his damage for now by matter ex post facto he be distrain in his  default as it be hold in e a b where the case be that Henry Percy be lord  paramount Gilbert Umfrevell earl of Angus mesne and a tenant paravail of  diverse manor S town c the say lord paramount distrain b Doctrin placit b the  tenant paravail the tenant plead a release by deed of the say lord paramount  to the mesne to hold by lesser service non to be able because he be a stranger  to the avowry and there it be hold that the tenant in such case be at no  mischief for he he have require the mesne upon who the avowry be make to have  join with he in answer and if he have come they two may have join in the plea  which the tenant now plead and if the mesne will not have join with the tenant  he may have against he a writ of mesne and therein recover his damage against  he and if the tenant do not request the mesne it shall be account his own  folly which be word for word the word of the book and therewith agree e a b  and e a e b and it be to be observe that in such case the mesne ought to join  c Doctrin placit c gratis for there be no process of law tocompel he to appear  as in the case of aid prayer but only upon the tenant request he ought to  appear gratis and therewith agree e b vide h a and so may the lessor upon who  a avowry be make join gratis with the lessee the plaintiff in the replevin and  therewith agree e a b h b last in the principal case if the lessee or if the  tenant paravail in the case of the mesnalty be present when the lord or his  bailiff come to distrain if d   light b b roll   b Br distress f n b e d  nothing be in arrear he may well make rescous and so relieve himself as it be  resolve in bevel case in the four part of my report f vide h b h a e Br  distress by the justice e rescous e h a f n b ass ass p so that the lessee or  tenant paravail have a certain provision by the law to relieve himself in the  case aforesaid unless by his laches or misdo be coke b prejudice himself and  forasmuch as notwithstanding the statute of h cap the lord may at this day  avow upon one person certain as upon his very tenant accord to the commonlaw  for the say statute enact that the lord c e   light b postea a e may avow c as  in land within his fee and signiory which do not toll the commonlaw but give a  liberty to the lord to pursue the one or the other I have think necessary to  report this case whereby all the book be well reconcile the doubt well resolve  and no absurdity or mischief permit that be not remedy by the commonlaw notam  reader at the commonlaw if there be lord mesne and tenant and the mesne true  do his service to the lord paramount and yet the lord distrain the tenant  paravail for they at this time the distress be tortuous and the tenant be not  coke report a er p distrain in default of the mesne but in this case if the  tenant paravail request the mesne to take his cattle out of the pound and put  in his own a f n b h h a   light a before b a cattle in lieu of they or if the  tenant have replevied his own cattle and request the mesne to join and acquit  he and he refuse by this matter ex post facto the law will adjudge that the  tenant paravail be distrain in default of the mesne and if in a writ of mesne  the mesne b Ant b shall plead not distrain in his default it shall be find  against he otherwise the tenant paravail will be in no default and will have  wrong and yet will be without remedy and it be all one to the tenant if the  distress be wrongful or rightful if he shall not have any redress vide   a e a  e a c Br frame Br Mesne c h a b d Br joinder in action   a d e a e Br Mesn Br  fill again e e a b f n b f f n b h f by which it appear that judge in all age  have endeavour to put the rule of W W cap Inst in execution g   light a   b  Inst g curian domini king non debet to withdraw to complain in justicia  exhibenda justitia be suum whoever it be to assign