coke a BUCKNALS case pasch Elizabeth in the common plea when the lord in his  avowry vary from the truth of the quality of the service by colour of seize  and possession which he have get from his tenant the tenure be traversable but  where be vary from the truth of the quantity of the service by reason of seize  which he have get of more than he ought to have of the same nature the seize  and not the tenure be traversable seize of more rend than ought to be shall  bind in a avowry but not in ne injust vex cessavit assize rescous or trespass  in avowry the tenant shall not plead never seize of the service general but if  he be tenant in feesimple he ought to disclaim or to plead out of his fee and  so traverse the tenure he who deny seize within time of limitation ought first  to acknowledge a tenure as if the lord allege the tenure by fealty rend and  suit of court and allege seize within time of limitation and avow for suit  arrear the tenant may confess the tenure by fealty and rend and plead to the  rend arrear never seize after the limitation if the lord avow for service and  allege seize by the hand of the plaintiff or any other in the replevin as by  the hand of his very tenant the tenant may plead that the avowant be never  seize by his hand c the seize be not traversable but only of that for which  the avowry be make unless seize be allege of a superior service for which the  avowry be not make which in law be a seize of the inferior when the lord vary  in the nature and quality of the service the tenure be traversable when the  tenant confess tenure in part but he can traverse the whole tenure in avowry  that the plaintiff hold certain land by fealty rend and suit of court the  plaintiff if he agree with the avowant in the quantity of the tenancy may  confess the tenure by fealty and rend and as to the rend plead nothing in  arrear and traverse the tenure modus et form videlicet without hoc that the  tenancy be hold by fealty rend and suit of court in manner and form c and if  upon issue join it be find that the land be hold by fealty and rend and not by  suit of court although the avowry be for rend arrear the avowant shall not  have a return SC cro Elizabeth winch Doct pl f n b a b pi Com b pale yellow  Rep pasch Elizabeth in Bucknalls case in the common plea diverse point be  resolve that there be a difference when the lord in his avowry vary from the  truth of the quality of the service by colour of seize and possession which he  have get from his tenant and when he vary from the truth of the quantity of  the service by reason of seize which he have get of more than he ought to have  of the same nature as the case there be bucknal avow because the plaintiff  hold of he certain land by fealty rend and suit of court and allege seize a    light a a of all and for the rend arrear c where the true tenure be by fealty  and rend only in this case the seize of the suit be not material because it be  of another quality and nature and the tenancy original be not charge with any  service of such quality as suit and therefore in such case the tenure be  traversable but where the rend be two shilling per annum if the lord have get  quiet and voluntary seize of more rend than he ought as of S without any  coercion of distress there because the tenancy be charge with service of such  nature and quality and it be not to be presume that the tenant will voluntary  pay more rend than he ought there the seize in a avowry be traversable coke  report b er p and not the tenure and the statute of great Charta c b Inst   a  f n b c Plowd b b nullus to draw asunder ad facienduin majus slavery de fee  soldier nec coke b de elsewhere book property how ind to withhold by  construction extend to the right and not to the possession to which purpose on  that Act the writ of ne c Inst   a blow b c injust vex which be in the right  be ground and therewith express agree f n b c king a vide e e b and this also  appear in the old book of Edward avowry in replevin bring by r the defendant  avow upon the plaintiff because one c be seize of the tenancy and hold of the  avowant by fealty and d per annum of which service he be seize by the hand of  c c as by the hand of his very tenant which c feoff the plaintiff and for d  arrear for one year he avow upon the plaintiff to which the plaintiff say that  the say c his feoff hold of the avowant by fealty and d and as to that nothing  arrear to which bar of the avowry exception be take because he do not answer  to the seize to which share of counsel with the plaintiff answer that the  plaintiff be a strange purchaser where he can have d f n b c d ne injust vex  wherefore he ought to discharge himself by plea but sir William Bereford chief  justice of the common plea give the rule you may say that the seize be by  outrageous distress and that you do not say wherefore we hold the seize  rightful and you do not deny the seize and therefore advice of it for which  reason share by the rule of the court traverse the seize in which be observe  the great regard the ancient judge have of seize and possession to maintain it  against the say statute of e mag Char c before a e great Charta although the  Act be in the negative and therefore the strong vide e disclaimer a infant  shall answer to the seize have by his own hand in e b Robert de Woodhouse  archdeacon of Richmond bring a assize of darrein presentment against the prior  of pomfret and pray that the assize will inquire who have present the last  parson to the church of saint Samson of York and afterward Robert be nonsuit  wherefore it be award that the prior shall have a writ to the bishop but to be  remiss execution till the collusion be inquire of and there sir William Herle  chief justice of the bench charge the recognitors of the assize first to  inquire among themselves if the writ be bring by collusion to make the  advowson come into mortmain and if they shall find that the writ be bring by  collusion that they shall not inquire of the right of the prior but if they  shall not find collusion then they ought to inquire of the right of the prior  and if he have right then which of his predecessor present and in the time of  what king and in evidence to prove the prior right a charter of king Stephen  be show by which the say king give the coke a say advowson to such a prior his  predecessor and to his successor and the inquest return and say that the writ  be not bring by collusion and far say that the prior or his successor have  never present within time of memory but always the archdeacon and his  predecessor to which Herle chief justice say we have no warrant to inquire of  the right of the archdeacon but of the prior right wherefore you be to say if  the prior have right or not and when the inquest be in doubt what to say Herle  say although a man have right before time of memory if he nor his ancestor be  never seize after time of a Ant a a memory he be oust of his right and  therefore accord to your intent if you have say the truth that the prior or  any of his predecessor be never in possession after time of memory you may  safe say that the prior have no right et ita to say notam reader I have put  this case at length because it be notable for diverse point and chief for the  great respect the judge give to the possession without regard any ancient  charter of the king or any right by colour thereof although it be matter of  record and betwixt the charter and the case then in question there be not  above year and that in the case of a prior who in many case shall not be so  prejudice by the laches of the predecessor as a private man but in the case of  seize of more rend than ought to be that shall bind in a coke report b er p b    b Inst Plowd b h b   a Doct pl f n b   l e b avowry but in ne injust vex  cessavit assize rescous or trespass such seize of more rend shall be avoid for  there the tenure and not the seize be traversable and for these difference  vide e e avowry ass ass h h b h h h e b e e f n b blow Com Woodlands case e  avowry notwithstanding the statute of great Charta the lord shall avow for  relief accord to the seize of the quantity of the knight fee that the lord  have encroach for remedy non be slavery but incident to service but this case  of seize in case of avowry receive certain limitation for c   a   b Inst   sir  wm foster case c the issue in tail shall avoid in a avowry seize have by the  hand of tenant in tail e avowry f n b the successor of a bishop or prior c  shall avoid in a avowry seize by the hand of the predecessor the very tenant  of the land shall avoid such encroachment of rend in avowry if he have a deed  to show the contrary but none shall have contra d   b Inst f n b d form  feoffamenti but the feoff or his coke b heir h h f n b e e e e ass e h h h h e  h h e avowry e avowry r avowry that in avowry the heir of the feoff upon a  deed show shall avoid seize by his own hand e avowry e avowry e avowry e  avowry e avowry in e avowry Wilby say that he have see between privy and privy  privy and stranger and stranger and stranger the same point to avoid  encroachment of seize in avowry adjudge upon show of a deed and all this be  ground upon the statute of marlbridge c a Inst a who autem per papyrus pro  certainly slavery tot undivided annuatin pro omni slavery solvend feoffati are  ad sectan well ad other contra form feoffamenti de ctero non to hold  encroachment of seize be not material where there be no tenure e b h b such  seize shall be avoid by coercion of distress e b h a b e a if the rend be  Payable at two day and the lord encroach seize at four day of the year and at  two day where he ought to pay it but at one this encroachment be voluntary  shall be avoid in avowry because they agree in the sum e and it be worthy of  observation where and how seize in avowry shall be traverse in b Doct pl b  avowry the tenant shall not plead never seize of the service general for  thereby he leaves the lord no remedy either by avowry nor by custom and  service and therefore if he be c Doct pl c tenant in feesimple he ought to  disclaim or he oh he to plead out of his fee and so traverse the tenure and  therewith agree t Henry avowry by all the justice and where it be say in e  that the very tenant shall not plead out of his fee for if it shall be find  against he it be not peremptory to he but it shall be peremptory to the lord  and so not equal and therefore in such case he shall disclaim the contrary to  that be adjudge in d h a d h in the point and fortescue there show two or  three judgement in term vide e avowry e h h h a b h h and brook in abridge the  say in e horse de son fee say quod non be law and the abridgment of  Fitzherbert of Henry horse de son fee be not warrant by the book at large he  who deny seize after the limitation ought first to acknowledge a tenure to the  end the lord may have his writ of custom and service as if the lord allege  coke a the tenure by fealty rend and suit of court and allege seize within  time of limitation and avow for suit arrear the tenant may confess the tenure  by fealty and rend and to the suit never seize after the coke report b er p  limitation and therewith agree e avowry e Fitzherbert avowry e e b e against  the opinion in report in f Fitzherbert avowry Br avow postea a f h b a if the  lord avow for service and allege seize by the hand of the plaintiff or any  other in the replevin as by the hand of his very tenant the tenant may plead  that the avowant be never seize by his hand c and therewith agree e e avowry a  Fitzherbert avow Br avow a h b and a that seize be not traversable but only of  that for which the avowry be make unless seize be allege of a superior service  for which the avowry be not make which in law be a seize of the inferior as in  b Br avow b h a where the tenure be by rend and diverse other service and  seize be allege in all and avowry for the rend only there the seize of the  rend be only traversable but if the tenure be by homage fealty escuage and  rend of S and seize allege in all and he avow for homage he shall be receive  to traverse the seize of the escuage for that be seize of the homage e a e  avowry e c   b f n b b c avowry and where it be say that when the lord vary in  the nature and quality of the service that the tenure be traversable that be  true when the tenant confess tenure in part as be aforesaid but he can  traverse the whole tenure as if the defendant in replevin avow upon the  plaintiff for rend and service as upon his very tenant the plaintiff can say  that he hold the same land of a stranger without that that he hold of the  avowant but he ought to disclaim or plead out of his fee and therewith agree h  b a h avowry d Fitzherbert avow Br avow d h a h e avowry e ibidem and at first  the plaintiff in the case at bar will have plead that he hold the land in the  avowry and other land by fealty and rend without that that he hold the land in  the avowry modus form and the court be move if the plea in bar of the avowry  be good and the plaintiff counsel conceive that the plea be good and they cite  the book in f Fitzherbert avow Br avow e h a h b where the case be that in  replevin the defendant avow that the plaintiff hold of he one acre of land by  fealty and twelve penny and for rend arrear the plaintiff say that be hold the  say acre and another acre of land in the same town by the service of sixpence  without hoc that he hold the one acre of the avowant modus form and Brian  there conceive the traverse good but coke b the court prefer the book of h b  where the case be in f Fitzherbert avow Br avow f replevin in this court the  defendant avow by reason the plaintiff hold of he four yard of land call  Crispinlond by fealty and S rend per a c of which service he be seize c and  for rend arrear the plaintiff say that he hold of he two yard of land by  fealty and S rend only without that that he hold four yard in the manner and  form as he have avow and hull who give the rule hold it no plea for as to  discharge of S rend it go in bar and as to that that he hold but two yard it  go in abatement and so contain double and different matter also he answer not  to the seize c wherefore by the rule of the court the plaintiff plead in  abatement of the avowry and say that he hold two yard of the defendant by the  service of fealty and S and the other two yard by fealty and demand judgement  of that avowry the conclusion of which plea make it single enough to which the  avowant reply that he hold of he in manner and form as he have avow and  thereupon issue be join and therewith agree e a where the defendant in  replevin avow upon the plaintiff because he hold of he a carve of land by  homage fealty and S per and c the plaintiff say that he hold that carve and  another carve by homage fealty and rend of S as one entire tenancy and demand  judgement of the avowry which suppose the parcel in gross by itself and a good  plea for otherwise he may be double charge and the avowant maintain that coke  report a er p the carve in the avowry be a entire tenancy c but it be resolve  that if the plaintiff agree with the avowant in the service and vary in the  quantity of land there a traverse may be without that that he hold modus et  form or with a so much one only and therefore in h if the defendant avow  because the plaintiff hold acre of he by certain service and the plaintiff say  that he hold those acre and other acre without that that be hold acre c so  much the avowry shall abate also if he make several avowries suppose two acre  to be several hold where they be hold by entire service or e contra vide a  Fitzherbert replevin Br avowry a h a b h a Br avow Fitzherbert avow b h e e e  e tempt e avowry e avowry e e avowry e S e avowry and afterward the plaintiff  in the principal case agree with the avowant in the quantity of the tenancy  confess the tenure by fealty and rend and as to the rend nothing arrear and  traverse the tenure modus form see without hoc that the tenancy be hold by  fealty rend and suit of court in manner and form c and the traverse be good by  the rule of the court although the avowry be make for rend only coke a  whereupon issue be join and it be find that the land be hold by fealty and  rend and not by suit of court and although the avowry be make for rend arrear  yet forasmuch as the tenure allege by the avowant be traverse and find against  he it be adjudge m Elizabeth against the c Cr Elizabeth c avowant for it will  be in vain to make it traversable and yet if it be find against the avowant  that he shall have a return and light lib cap attornment say that the signiory  be entire although there be diverse manner of service which the tenant ought  to do and tenure by fealty and rend be another tenure than the defendant have  allege in his avowry wherefore judgement be give for the plaintiff notam  reader although the purview of the Act of d Ant b postea a   light b b d h c  be general that the lord may avow c as in land and tenement within his fee and  signiory allege the same land to be hold of he without name any person certain  or upon any person certain yet all necessary incident be intend and therefore  the avowant ought to allege seize by some hand e Br avow Cr car e h b agree  but the ancient form of allege seize shall not be alter and therefore the  avowry shall be make general after the statute of h c as it be use before but  the plaintiff in bar of the avowry may plead never seize within year c and  therewith agree mark f   a Br avow b n c f brook Elizabeth dyer g die pl Cr  car   a g and if the lord by the statute of h allege seize in his avowry and  avow the distress as within his fee and signiory and upon no person in certain  in such avowry every plaintiff in the replevin he be termor or other may have  every answer to the avowry which be sufficient and also have aid and every  other advantage in law and it be not now a exception that he be a stranger to  the avowry for in such case forasmuch as the avowry be upon no person in  certain either none be a stranger to it or every one be a stranger to it and  therewith agree h Br avowry h b b