case Salkeld against the lord William Howard a plaintiff can assign for error  a matter of which he may have advantage by plea roll ab hob Fitzherbert n b  more   cro car sand Carth strange Cowp error of a judgement in cessavit by  default where in truth he be not summon as appear upon examination in the writ  of deceit upon which this judgement be annul but the writ of error be bring  before the writ of deceit and it be now assign for error that he be not tenant  the day of the writ bring nec unquan postea and thereupon it be demurrer  whether he may assign that for error the judgement be give by default for it  be agree if he have appear and plead he shall never have assign it for error  and it be move that he well may assign it for error for non tenure have be a  good plea in the first action as appear Henry pl Edward pl then when judgement  be give against he by default he may assign it for error be a error in fait  which he have not time to plead as Edward error and Edward pl ass pl otherwise  it will be mischievous to he to be bind by this judgement when he have not  time to plead for if one be tenant for life c the reversion be only in he and  a recovery he have against he if the land come to he after this recovery he  shall be prejudice because he have no remedy if the veyers and summoner be  dead also as this case be although the judgement be annihilate by the writ of  deceit yet the record be remove hither if it shall be affirm he shall have  execution here and peradventure the process out of the common plea can be stay  and he shall be at loss by this judgement which be gain by falsehood therefore  the law allow he to assign it for error croak throw Doderidge who be of that  opinion argue very strong that in regard the judgement be give by default and  he have no time to plead it in the first action the first judgement be obtain  against he by falsehood it be great reason he shall be now admit thereunto and  he rely upon the yearbooks ass pl and n short catalog c that he who plead non  tenure may have a writ of error but not he who disclaim a strange croak James  er p Houghton and Montague to the contrary because if he be not tenant he have  not any loss and be return and summon and not plead it be his folly not to  appear and plead thereto and this court can take cognizance of this reversal  by a writ of deceit and as a man shall not have benefit of a release although  he be return seize in fee if he do not plead it or if he have to plead hearing  complaint as Edward pl Edward pl so forasmuch as he be return summon and do  not plead this non tenure he shall not have advantage to assign it by error  and n short catalog fol be that he who plead non tenure shall have a writ of  error but he do not say that one may assign non tenure for error croak justice  doubt whether he may not assign it for error for the mischief which otherwise  may befall he wherefore they will advice afterward the party compound