chiccory zouch and BAMFIELDS case the case between the Lord zouch and Bamfield  be now argue by the justice and Rhodes the puisne justice argue that the Lord  zouch the demandant shall be bar four exception have be take to the bar first  because it be not show in the bar that the moiety of those sixty message c of  which he plead the fine be parcel of the manor at the time of the fine levy  for the plead be that the grandfather of the demandant be seize of the say  manor unde mediate to say before messuagiorum c a tempore pron  interrog   contrar memory c be parcel and so seize de manor predict unde c Finis see to  lift up and be conceive that the plead notwithstanding that be good enough for  he have say as much in effect contrar pron  interrog  memory man non step  forth in the present tense which amount to this that man can remember c but  that this moiety be parcel of the say manor as h in a assize of common the  plaintiff make his title that he be seize of a message and carve of land in d  to which the say common be appendant and that he and all his ancestor and all  those who estate he have c have use to have common c exception be take to the  title because the plaintiff do not show in his title that he be seize of a  message c for if he have alien the message the common passes so if he be seize  c but the exception be not allow for it appear upon the word of the title that  the plaintiff be seize I all those who estate he have in the present tense  which word do show and declare possession and seize in the plaintiff the time  of the plea plead so in this case the substance of the word in which the  defect be assign be ut above that man can remember but that this moiety be  parcel of the manor and then the word after unde c To give back manor predict  unde c shall have the same construction as before periam conceive that the bar  be nought for the cause aforesaid for it be not so plead that we can adjudge  upon it that the say moiety be parcel of the manor at the time of the fine  levy and then the fine can extend unto it and the reason allege by my brother  Rhodes shall not help that matter for the say word can be construe otherwise  but that no man can remember but the say moiety be parcel but not that it be  parcel or at the time of the fine levy be parcel vide h in trespass the  defendant plead that a be seize of the manor of d whereof the place c be  parcel he ought to say express that the place where be parcel of the manor at  the time of the trespass suppose Windham conceive that the plea be good and  that it appear well upon this plea that the say moiety be parcel of the say  manor at the time of the fine levy for he plead that the grandfather of the  demandant be seize of the manor of n unde center point to say before c a  tempore pron  interrog  contrar memory man non step forth such seisitus to  step out Finis see to lift up such seisitus I e seize of the manor in such  sort as the manor be set forth before and that be good plead especial by  Leonard er p way of bar which if it be good to a common intent be well enough  and the word unde c so often repeat after shall be idle and to no purpose if  the law shall not give such a construction Anderson to the same purpose and he  much Leonard rely upon the reason of Windham and so seize another exception be  take to the bar because in plead of the fine it be not aver that the conusor  at the time of the fine levy be of full age out of prison c and as to that  Rhodes take the difference between the plead upon the statute of I h where  these disability be within the purview of the say statute and upon the statute  of h where in the body of the statute no mention be make of they but afterward  in a especial exception by it self and be cite the opinion of the justice  especial of the Lord dyer in the case report by blow Elizabeth betwixt stowel  and the Lord zouch periam to the same intent and upon the same reason and  further he say that although the statute of h contain in its purview the same  disability yet this fine be plead upon the statute of h and therefore the  plead of the same shall not be direct nor wage by the statute of h which do  not alter the plead of a fine which be before nor the reason of it for it be  not proper a statute nor do fine receive any strength or virtue by it but be  but a construction of the say former statute and he put the case betwixt hide  and umpton where umpton mean betwixt the statute of and h declare his will of  all his land which devise if it be good for two part of the land devise it be  doubt or that the devise shall be void for the whole afterward come the stat  of h and clear the doubt for to that intent it be make and in the say statute  there be a proviso that the say statute shall not extend to the will or the  devise of though umpton or shall be prejudicial or hurtful to any person or  person for any land c contain or specify in the say will or devise but that  the say will and devise shall stand remain and be in the same case in force  and effect in the law as the same be before the make of this act now  notwithstanding that proviso the will of umpton be hold good but for two part  for so the statute of h construe the statute of h so in our case the statute  of h of fine construe the statute of h to extend to fine levy by tenant in  tail therefore the estate tail shall be adjudge in law to be bind by the  statute of h and not by h which be rather a judgement upon the say statute of  h than any new statute Windham to the same intent and he rely upon the reason  aforesaid and further say if one will plead a lease make by tenant in tail  upon the statute of h he need not to aver the full age of the lessor and yet  that quality of full age be within the purview of the say statute first all  lease to be make c by any person be of full age c and so be the common use of  plead and of the same opinion be the Lord Anderson for the say exception for  the reason and upon the difference aforesaid another exception be take to the  bar because it be not allege that the say fine be engross in the same term in  which it be levy and as to that it be hold by Rhodes that in plead of a fine  it needs not to show any engross of it and so be many precedent vide blow Com  smith and stapletons case Elizabeth where a fine be plead quaedam finalis  concurrence agreement fanctam to be in eight consecrated Hillarii h postea a  die pasch in quindecem die h concession think over c super who that which  divides call out secundum form to cause to stand fact fuer videlicet prima  call out maii term pasch h without any mention of the engross of it and see  the case betwixt stowel and the Lord zouch where the fine be plead as it be  plead in the case at bar who indeed Finis in form predict alleviate and that  fine be levy pasch h ingrossatus to be postea in curian predict secundum form  statue c bed call out to be videlicet prim call out term pasch h and so upon  the matter it be sufficient to show that the fine be engross the same term in  which it be levy for the fine be plead to be levy term pasch who indeed Finis  ingrossatus to be postea call out videlicet prim call out boundary pasch which  be the same term it be Leonard levy and so admit that in plead it ought to be  show that the fine be engross in the same term in which it be levy c now it  appear here to we by necessary consequence that the fine be ingross accord and  also the ingrossment be plead as the statute be pen for the word of the  statute of h be after the engross of every fine the same fine to be open  Leonard er p read and proclaim in the same court the same term and so the word  of our plea here pursue the word of the statute for the say statute do not  require by express word that the fine be engross the same term but the same be  to be conceive by matter of construction and implication and accord to such  manner of speech this plea be plead and of the same opinion be Windham and  upon the same reason Anderson conceive that the tenant in plead of the fine  ought to show in express word that the fine be engross the same term in which  it be levy for whosoever in plead a plea will take the benefit of the statute  ought precise to follow the statute in all point and it be clear that if the  fine be not engross accord to the statute that then it be not any bar by the  statute and therefore it ought to be express allege accord to the statute and  not by implication only another exception be take to the bar as be remember by  Windham I pro ut per that which divides hic in curian de think over remanen  abundantly that this only is apparent without say per proclamation ind c but  that exception be disallow by periam and Windham for the fine have be good and  well plead without any such conclusion pro ut c and also the proclamation be  endorse upon the fine and then they appear upon the fine accord to the word of  the say conclusion and so by Windham be many precedent and so in the say case  between stowel and the Lord zouch cite before pro ut per that which divides  that hic de record remanen plane to be fluid and see I Elizabeth Plowden  between Willion and Barkly a fine plead without any pro ut c Anderson take a  exception to the bar at the beginning of it I quod center point messuagiorum c  parcel center point message predict that that be no good plead for one moiety  can be parcel of another moiety for every moiety be entire Rhodes take  exception to the replication because the demandant in avoidance of the fine  that at the time of the fine levy Bamfield be seize always postea thus far c  of the moiety in demesne and do not traverse the seize of the conusor at the  time of the fine levy for here two contrary plead stand before we in equity of  truth equally true equally doubt and a traverse will have make a end of all  and reduce the matter to certainty and by periam the bar be not answer for  every bar ought to be traverse confess or avoid see h and where it be say by  Hussey and Fairfax where matter in fact be allege by way of bar it ought to be  traverse if it be not for the mischief of trial as in case of Basterdy where  thing be allege to be do beyond the sea or to leave the matter in law to the  court without put the same to the judgement of the laypeople c see also h  where it be hold that a thing material allege in the bar ought to be direct  traverse or confess or avoid in fact or in law or conclude the other party by  matter of estoppel and that two affirmative can make a good issue but the  matter allege in the replication sure that Bamfield be seize at the time of  the fine levy shall be hold for void and the matter allege in the bar sure  that the conusor be seize as not answer for it shall be take true until it  shall be avoid and destroy by matter in law traverse c vide scales so he in  default of traverse the bar be not answer but argumentative sure Bamfield be  seize ergo the conusor be not seize and it be a common learning that in every  replication there ought to be certainty as to that see the case betwixt  fulmerston and steward man that a bar ought not to be answer by Leonard  argument and as to the certainty which be requisite in a replication see the  case betwixt Wimbish and Talboies blow Com e where the plaintiff show in his  replication his title as heir but because be do not show how heir for want of  such certainty in the replication the plaintiff can never have judgement  although the justice for the matter in law then in question be clear resolve  for the plaintiff and here in this replication the incertainty be such that  the court do not know to which to give credit to the plaintiff or to the def  and the bare matter of the replication be not sufficient for in avoidance of a  fine to say that a stranger to the fine at the time of the fine levy be seize  be never receive but that part Finis nothing to have that be the ordinary plea  Windham to the same intent that which the demandant have allege in avoidance  of the fine be but matter of argument and implication and we ought in this  case first to be insure of the matter of fact sure Leonard er p whether zouch  or Bamfield be seize and the court do not know to which to give credit h in  debt by a executor the defendant plead that the testator make the plaintiff  and one a his executor which a be live and the plaintiff plead that the say a  die within such a ware before the writ bring c and adjudge no plea without  traverse without that he be dead for here be affirmative whereon a good issue  can rise which see h the def in a replevin avow for a rend service the plaint  plead out of his fee the avowant say within his fee he ought to traverse  without that it be out of his fee and for default of the traverse the plead of  both party as to the several allegation of the seize in Bamfield and zouch may  be true for they both may be jointtenants of the say moiety at the time of the  fine levy in which case as to the moiety of the moiety it be good enough and  yet when in plead it be allege that a be seize c if the other party plead that  a have nothing but joint with b he ought to take a traverse without that that  a be sole seize and yet sole seize be not express allege but when the other  party plead that a be seize it ought to be intend a sole seize which see l e h  and it be never a plea admittable against a fine to say that the conusor have  nothing at the time of the fine levy which see e and also e h in trespass the  defendant plead the fine of the ancestor of the plaintiff who say at the time  of the fine levy he himself be seize without that that part ad that which  divides to some degree to have which see e and a fine ought to be avoid by not  seize of the party to the fine and not by the seize of a stranger to the fine  and there be not any book in the law that allow such a averment of seize in a  stranger to the fine without answer to the seize of the party to the fine but  h in assize the tenant plead a fine upon render of the ancestor of the  plaintiff to which the plaintiff say that before the fine at the time of the  fine and afterward continual be himself be seize and the same be hold no plea  against such a fine upon a render notwithstanding the privity of blood  contrary against a fine which prove a gift precedent Anderson to the same  intent the replication for want of traverse be incurable for we as judge do  not know what to do because that the truth of the matter in fact do not appear  unto we and so neither the matter in law for every plea ought to be traverse  or confess and avoid otherwise nothing appear to we and we can know whether  the conusor or Bamfield be seize at the time of the fine levy for otherwise  the matter in law can rise and yet I well know that although a traverse may be  spare in respect of a matter in law which shall be choke and put out of the  book by the traverse or for the mischief of the trial as aforesaid where a  thing be allege to be do beyond sea e in debt the defendant plead that the  plaintiff be bear at Denmark under the obedience of the king of Denmark  Leonard the plaintiff by replication say that be himself be bear at d in  England in the county of York there be shall not take a traverse without that  that he be bear at Denmark for there such trial can be but in such case the  defendant by way of rejoinder shall say that the plaint be bear at Denmark  without that that he be bear at d in the county of York and it be true a  supposal of a writ or count may be answer to a affirmative but a matter allege  by express word can Rhodes admit now that the bar be nought and the  replication faulty as it be then I conceive that if the point of the action be  confess by the bar the court shall give judgement upon the bar and shall not  meddle with the replication but if it be not confess by the bar that then  there shall be a repleader and I do conceive that a repleader may be award  upon a demurrer in law which see blow man in the case betwixt Browning and  beston in trespass the plaintiff do suppose the trespass in two place sure in  Bermestreet and in Southwark in the county of Surrey as to the trespass in  Southwark the defendant do justify by special matter of a lease without answer  any thing to the trespass in Bermestreet the plaintiff do reply and make his  title by a lease more ancient than the lease to the defendant upon which the  defendant do demurrer in law now the defect in the bar appear the court award  a repleader and h in a replevin the defendant avow for damage pheasant the  plaintiff make title by common the defendant plead a release of the common by  deed which be not Leonard er p a perfect deed upon which the plaintiff do  demurrer in law and the replication in which the imperfect release be be hold  nought but because there be a defect in the bar to the avowry by the title of  common the court award that the party shall replead not in respect of the  vicious plea upon which it be demurrer but in respect of the defect in bar and  so in this ease periam say that nothing shall be award in this case but where  a issue be join for a issue be always join upon a point certain but upon a  demurrer all the part of the plead the count the bar c be refer to the court  as well for the form as for the matter the book which have be vouch to the  contrary out of h I have procure search to be make for the roll but it can be  find and it be inconvenient that after a demurrer a repleader shall be grant  for then cause shall never have a end and as to the case betwixt Browning and  beston the repleader there be permit by the assent of the party rather then  award by the rule of the court Windham to the same intent that no repleader  shall be in this case and he say that in the time of the Lord dyer the opinion  of the court be so and as this case be the plea in bar be good and the  demurrer be upon the replication no repleader shall be for a repleader shall  never be grant where the plea upon a demurrer be not good but if the bar be  not good and the defendant do demurrer upon the replication there a repleader  may be and as to Browning and Bestons case he conceive that the party do plead  de to make new but not replead for if it have be a repleader then the party  shall begin to plead where the first defect be as if the defect be in the bar  there the repleader shall begin but the declaration shall stand but in the say  case of Browning and beston the plaintiff plead all de to make new as a new  count c and yet the first defect be in the bar and therefore he conceive that  there it be not a repleader but that the party by assent do plead de to make  new Anderson be of opinion that as this case be no repleader shall be and yet  be hold the repleader may be upon a demurrer as well as upon a issue join for  a demurrer join be a issue to be try by the judge c and such be the opinion of  manwood chief baron and the judgement in the case betwixt Browning and beston  be not that the party Leonard shall plead de to make new but that they shall  replead see there folio a and in that case there may well be a repleader for  there the truth of the matter in fact be confess in the plead but in the case  at bar it be otherwise for the plead be so obscure that we do not know the  truth of the matter and the right of the matter do not appear unto we and by  periam as to that which have be say that upon the demurrer upon the  replication the seize of Bamfield at the time of the fine be confess sir its  not so for no more shall be hold confess by a demurrer but that which be duly  and sufficient plead and because the seize of Bamfield be not sufficient plead  therefore not confess and for proof of that learning see the case betwixt  Wimbish and Talboies and the case betwixt hill and grange I mark blow and see  the case betwixt partridge and croker and so be opinion of the Lord Anderson  who rely much upon the case where it be say that in plead a plea all matter in  fact well and material allege by a general demurrer be confess to be true  Rhodes now we be to see if by the statute of Elizabeth cap this defect in the  replication may be salve and I conceive that this statute do extend to all  imperfection which happen by the act misprision or negligence of the clarks or  counsel for the client propound his cause to the clark and his counsel to  manage in the course of his suit and if the clark or counsel err therein or in  that which to they belong the client as to that shall be relieve by the  statute but if there be any defect in the matter so as the matter will not  serve it be otherwise as h it in the roll of a plea there be diverse space for  the year and day void and blank in another term the judge can not amend they  but now by the say statute they may so colour in assize want be help by this  statute so the usual averment hoc a preparation be verify c leave out the  court have power to amend it and so by he the court by this statute have power  to amend that defect in trespass periam to the contrary and that this default  of traverse be not amendable by the say statute for it be enact by the say  statute that upon a demurrer the Leonard er p judge shall give judgement as  the right of the cause and matter in law shall require but in our case as the  plead now be no right of the cause or matter in law appear accord to which we  can judge for we upon this plead can bell whether the conusor or Bamfield be  seize at the time of the fine levy for upon the demurrer upon the replication  the seize of Bamfield be not confess because it be not well allege and if it  have be well allege yet it hand not be confess because that the tenant who  demurrer upon the replication have in his bar express allege that the conusor  be seize a original writ of debt against one as executor in the debet and to  hold off can not be amend by h but now by the statute of Elizabeth t may see e  so nominar for looks like in a quare hinder shall be now amend by this statute  and in a writ of formedon discendere for to stay behind shall be amend by the  say statute of h e vide h in assize upon who the plaintiff where it shall be  upon who the defendant enter and if the averment usual as above be missset  down it be amendable but if it be utter leave out not but now in both case it  be amendable so make practice of defending vim in an unjust manner when c if  it be leave out it be amendable for all these matter lie in the conusance of  the clark but in our case the right of the cause and matter do not appear unto  we for if Bamfield be seize at the time of the fine levy then as the demandant  and his counsel seize which matter do not appear unto we and if we enter in  course of amendment Leonard we do not know if the demandant will have traverse  without that that the conusor be seize which shall not be a good traverse or  without hoc quod part ad that which divides to some degree to have c which  although it be a good traverse in law yet we do not know if the truth of the  cause will serve to maintain such matter and because without alter matter we  can amend the plea Windham to the same purpose for by the statute of Elizabeth  we ought to judge in this case as the right of the cause and matter in law  shall appear but in this case neither the right of the cause nor the matter in  law appear unto we accord to which we can judge for we know not to which of  the party to give credit touch the seize of the conusor or Bamfield at the  time of the fine levy for as to our judicial knowledge both plead be to we  equal dubious and he agree the case put before touch amendment of matter upon  default of the clark sure de hoc to put down see super native land leave out  so colour in assize and trespass want so hoc a preparation be verify all which  matter be amendable by the statute of Elizabeth but he say that if in trespass  the defendant do justify by a lease for year without show the place where the  lease be make it be not amendable for it be matter which lie in the notice of  the party only and not in our judicial knowledge and as to the case of h of  the place leave he conceive it be not amendable in another term by this  statute for that be material and the fill of those space the party themselves  shall supply and not the court for the court shall never amend where their  amendment make alteration of the substance of the plead or of the verdict as h  in trespass the plaintiff declare of a continuando usque they impetrationis  short catalog videlicet die of Mars where the testae of the writ be die  January the defendant plead to issue which be find for the plaintiff and that  misprision of the testae or date of the writ can not be amend and no amendment  upon the stat of Elizabeth two thing be to be consider first that the judge in  such amendment meddle not with matter nor alter the substance second that they  do not amend but accord to their judicial knowledge Anderson to the same  intent for as it have be say before the truth of the case do not appear unto  we accord to which we can judge and I conceive that upon any amendment upon  this statute we can take out one roll and put in another and as our case be we  can amend this defect without take out the whole roll and therefore in the  case of Leonard which be late custos narrow places here where in a replevin he  avow for arentservice and upon especial verdict the case be that sir Henry  Isley hold of the say Leonard by fealty and the rend Leonard er p mention in  the avowry and be attaint of high treason and the king seize and grant the  land to the plaintiff upon who Leonard avow for the rentservice and I and my  companion be agree that the rend notwithstanding the seizure and grant of the  king remain distrainable of common right but Leonard can not have return of  the cattle because he have avow for a rentservice now it appear to we upon the  verdict that he have right to so much rend but not to such a rend but a  rentseck distrainable of common right so a rend in another degree and we also  agree that the avowry be not amendable for then upon such amendment we ought  to take out a whole roll which be not intend by this statute and be conceive  also that in debt against executor in the debet to hold off such a writ shall  not be amend by this statute and he conceive that his exception to the bar  quod ad center point messuag c parcel center point c be relieve by this  statute for the meaning appear and also the exception that it be not express  show that the fine be engross in the same term in which it be levy and periam  move Leonard another matter if now the party demurrer in law as to part of the  land in demand and be at issue upon the residue if the court shall adjudge the  matter in law before the issue be try or not h in trespass for take of his  cattle the defendant as to parcel plead not guilty and as to the remnant plead  another plea upon which the party do demurrer and there they proceed to trial  before the matter in law determine and find for the plaintiff and he have  judgement thereupon for the damage but the cost be suspend until c and the  defendant bring his writ of error e in a action of waste as to parcel the  defendant plead no waste and as to the rest plead matter in law upon which  there be a demurrer join it be hold that the issue shall not be try until the  matter in law be determine but it be say by fulthorpe in trespass if the  defendant to parcel plead the inquest and to other parcel matter in law in  such case he shall proceed to trial present and damage shall be tax of the  whole as well of that upon which there be a demurrer in law as of that of  which the issue be join ad quod non to be responsum see also two h in trespass  the defendant plead to issue for part and for the residue do demurrer in law  process for the trial issue before the matter in law determine and periam  conceive that the court may proceed in such case the one way or the other as  to the matter in law whether the issue in tail upon this fine shall have the  averment he conceive that he shall not have the say averment for that it shall  be very perilous to the inheritance of the subject and be argue much upon the  dignity of fine out of Bracton and Glanville who he call drover non seller law  that fine at the commonlaw be of great authority until the statute of west and  afterward by the statute of e of nonclaim from whence they become to be of so  little value in law that they be account no other than feoff upon record so as  thereby no assurance be of inheritance but a general incertainty until the  statute of h by which statute they be restore to their ancient power and  virtue after which statute many shift be devise to creep out of it so as the  statute of h be make to take away all question and ambiguity which be conceive  upon the say statute of h and therefore we who be judge ought to frame our  judgement for the maintain of the authority of fine for so the possession and  inheritance of the subject shall be preserve and that be the reason that if a  stranger levy a fine of my land in my name that I have not any remedy but a  writ of deceit against he who levy the fine so if a femecovert levy a fine of  her land as a femesole the same shall bind her after the coverture if the  husband do not enter upon the conusee during the coverture and interrupt the  possession gain by the fine and e and our book be very plentiful to this  purpose that the law do aerge admit of such allegation against such fine a  fine be plead in bar of land in a b and c be against who it be plead be not  receive to aver against the supposal of the fine that there be no such town or  hamlet as a e a woman tenant in tail have issue a daughter who be inheritable  to the tail the daughter take a husband they both live the mother and during  her seize levy a fine of the land entail to a stranger sur conusans de law  come Ceo c who render the land to the husband and wife in specil Leonard er p  tail the husband die have issue the wife take another husband have issue and  die the husband to entitle himself to the land as tenant by the courtesy will  in plead have aver the seize of the mother at the time of the fine levy and he  can not and yet he be a stranger to the fine but he be privy to the estate and  his claim be by her who levy the fine e Fitzherbert averment in a writ of  entry sur seize the fine of the Leonard ancestor of the demandant be plead in  bar by the name of W the demandant in avoidance of it will have say that the  name of his father be r to have avoid the fine but to that he be not receive  and e sure averment in a formedon the tenant plead ne dona pass the demandant  by replication say that a fine be levy of the same land between the father of  the demandant and one t by which fine the father of the demandant do  acknowledge to t the land come Ceo c and the say t give by the say fine to the  father of the demandant the land in tail where it be say by stone that since  the gift be prove by as high a record a man shall not aver against such matter  in avoidance of the say fine c and yet the party against who it be a stranger  to the fine and see e the lord shall not be receive against a fine levy by his  tenant to aver the die seize of his tenant in his homage and as to the issue  in tail he conceive that the averment do not lie for he for the issue in tail  be as much privy as the heir of a tenant in feesimple and see e sure estoppel  in a formedon the tenant vouch the demandant counterpleaded that the vouchee  nor any of his ancestor have any thing in the land in demand after the seize c  to which the tenant say that to that the demandant shall not be receive for  the father of the demandant after the gift levy a fine to the ancestor of the  vouchee of the say land in demand sur conusans de law come Ceo c and the same  be hold a good bar to the counterplea and it be say by the justice that  although the statute of west of gift conditional do not avoid the fine as to  the foreclosing of the issue in tail of his formedon yet it remain in force as  to the restrain of the heir in tail to aver a thing against the fine as well  as against the heir in feesimple and in all case where he against who a fine  be plead claim by he who levie the fine he shall not have the same averment  but where he claim by a stranger to the fine there be shall have it well  enough see h if my father tenant in tail or in fee grant the land by fine and  afterward I make title to the same land by the same ancestor and the fine be  plead against I I shall not be receive to say that those who be party to the  fine have not any thing at the time of the fine levy but such a one a  estranger who estate c but it be a good plea for I to say that after the fine  such a one be seize in fee and do feoff I with e before e estoppel and dyer  Elizabeth the father be tenant for life the remainder in fee to his son and  heir levie a fine to a stranger sur conusans de law come Ceo c with warranty  and take back a estate by the same fine in that case it be hold that the heir  shall not be receive to aver continuance of the possession and seize either  ante that which divides tempore Finis or post that which divides in the tenant  for life for it be a feoff upon record and make a discontinuance of the  remainder and reversion the only book in our law to maintain the averment be e  by Brian who although he be a reverend judge in his time yet he err in this  that if tenant in tail be seize and levie a fine unto a stranger sur conusans  de law come Ceo c that the issue in tail may well say that part ad that which  divides nothing to have but coke and light be clear of a contrary opinion and  see in the same year fol by Fairfax and Littleton that if tenant in tail where  the remainder be over to a stranger levie a fine sur conusans de law come Ceo  c he in the remainder may aver continuance of seize against that fine for he  be not party nor heir to the party c and the stat of h go strong to extort  such averment out of the mouth of the issue in tail for the word concern the  same point be save to every person or person not party nor privy to the say  fine their exception to avoid the say fine by that that those which be party  to the say fine nor any of they have ought in the land at the time of the  Leonard say fine levy and it be clear that the issue in tail be privy to his  ancestor who heir to the tail he be which see agree h and he vouch the case of  one Stamford late adjudge land Leonard er p be give to the old son in tail the  remainder to the father in tail the old soil levy a fine sur conusans de law  come Ceo c and die without issue in the life of his father and afterward the  father die the second son shall inherit but if the old son have survive the  father and afterward die without issue the second son shall have be bar periam  to the same intent it shall be very dangerous to the inheritance of the  subject to admit of such averment and by such mean fine which shall be of  great force and effect shall be much weaken and he put many case to the same  purpose as be put before by Rhodes justice and he show how that fine and the  power of they be much weaken by the statute of nonclaim whereof follow as the  preface of the statute of h observe the universal trouble of the king subject  and therefore by the say statute of h fine for the good and safety of the  subject be restore to their former grandure and authority which shall be  construe by we who be judge strong and liberal for the quiet and establishment  of resend possession and for the bar and extinguish of former right and so do  the judge our predecessor which see in the argument of the say case between  stowel and the Lord zouch so see such liberal construction Elizabeth dyer  where if land be give to husband and wife in special tail and the husband  alone levie a fine and die have issue the issue be bar and it have late be  adjudge by the advice of all the judge of England upon the statute of I man  videlicet all fine levy whereupon proclamation shall not be daily make by  reason of adjournment of any term shall be of as good force and strength to  all intent and purpose as if such term have be hold and keep from the  beginning to the end thereof and not adjourn and the proclamation shall be  make in the follow term which reason in construction of the say statute the  judge in the case of the cook of London Elizabeth have observe which see  Plowden for although successor be not mention in the say statute of h but only  heir yet the judge do construe the say statute to extend to they that they  shall be bind as well as the heir for it be in the like mischief and the say  statute be make for the public good and for the repose of the inheritance of  the subject of this realm and therefore the same ought to be large extend in  the meaning and sense of it and for the benefit of the possessor of the land  and to the destroy of former right which be not claim it have be say that this  fine be but a fine by conclusion and not in verity and therefore not within  the statute but without question fine by conclusion be within the statute and  that be clear by the save sure to all person other than party to the say fine  c and periam be against the opinion in Stowells case by sander a seize make a  feoff in fee upon condition the feoff levy a fine with proclamation five year  pass the condition be break the seize reentreth and periam conceive that in  such case the disseizee be bind for by the fine and five year nonclaim the  right of every stranger be bar and when the disseizsor enter for the condition  break the fine be not annoy but rather confirm and former right shall not be  revive Windham to the same intent and vouch the book before remember and that  the meaning of the statute of h make upon the statute of h be to bind the  issue in tail as strong as the heir of tenant in feesimple be bind at the  commonlaw and that fine by conclusion be as full within the purview of that  statute as fine in verity for fine by conclusion be assurance and as to the  objection against our fine that it Leonard be not rite alleviate because that  part ad that which divides nothing to have c the same be no reason wherefore  this fine shall not be rite alleviate for these word rite alleviate to the  external form of a fine be to be take as to a fine levy in person Edmundo  Anderson associate nest where all the justice ought to be name and so it seem  also to periam and Anderson our case have little resemblance to the case where  tenant in tail make a lease accord to the statute of h if he be not seize at  the time of the demise it be void for the stat speak seize in tail but so be  not pen the statute of h h as h a fine levy shall bind privy stranger c h fine  levy of any land entail to the conusor or any of his ancestor and it be not a  fine in respect of the possession which passes by the fine but in respect of  the concord and agreement and tenant in tail by these statute have as great  power to bind the right of the Leonard er p entail although be can meddle with  the possession as the tenant in feesimple at the commonlaw Anderson to the  same intent all the matter rest upon this point if the issue in tail be privy  or not for if he be privy then clear he be bind and as to that the issue in  tail before the statute of h have be always account privy see h dyer tenant in  tail of the gift of the king levie a fine the same shall bind his issue for  they be privy and be argue much upon the case cite by the other justicesbefore  and especial upon the say case of stowel and the Lord zouch how that the issue  in tail be there hold privy and that the statute of fine ought to be take and  construe to enforce the operation of fine against former right and for the  establishment of the present possession and estate and by he diverse right and  person be except by the say statute but this right in gross of possession nor  the issue in tail who ancestor be out of possession levie the fine be not  except therefore both of they comprehend in the statute and in his argument be  stand much upon it how dangerous a matter it shall be to receive such averment  and allegation which go mere in avoidance of fine for so every fine may fall  in the month of the laygens which will be very inconvenient and he conclude  his argument with this case tenant in tail do discontinue and disseize his  discontinnuee and levie a fine the discontinuee before the proclamation  reentreth the proclamation be make tenant in tail do reenter and die seize  against this fine his issue shall not be remit see as to the averment h h e h  e by Fairfax and Needham and fol by Brian and choke and afterward judgement be  give that the demandant shall be bar and   before   Inst b a enter pasch  Elizabeth rot in common banc