case Odiham against smith Michaelmas term Elizabeth roll the lord may seize or  distrain for heriot service at his pleasure but for heriot custom he can only  seize the identical thing itself ante I roll Abr Kel blow hendl and ass bro  her Fitzherbert Avo cro car Jones   light lat Bulst salk Mod pale yellow ten  Bl Com Bac ab ld ray t ante cro car to trespass the defendant justify for  damage pheasant the plaintiff new assign and the defendant justify for a  heriot the departure be immaterial for have new assignment the bar be out of  door I roll ab term r error of a judgement in the common plea Trinity term  Elizabeth roll in trespass of his close break at ytlsbam and take a ox there  the defendant justify for damage pheasant in black acre the plaintiff make a  new assignment of the trespass in white acre the defendant justify there as  servant to Helknap rudstone for that the plaintiff hold of he the place where  c by the heriot service a adjudge on a writ of error that the flne bar the  entail post croak Elizabeth er p inter alian the condition of a slave as of  his manor of paulter and that he seize the say ox there for a heriot whereupon  the plaintiff demurrer and have judgement to recover there because the lord  can not seize a heriot service but he ought only to distrain for it and error  be now bring it be assign in the very point of the judgement foster argue for  the defendant in the writ of error that there be two cause of the judgement  the one upon the point in law that a heriot service be not seisable because it  be a service which lie in render and not in prender and all the plead thereof  be that he be seize thereof by the hand of his tenant which can be if he  himself seize it the other upon the plead for in the bar he justify for damage  pheasant wherein he claim not any property and in the rejoinder he justify for  a heriot wherein he claim it as his so it be contrary and a departure  wherefore c but all the justice several deliver their opinion croak Elizabeth  and they hold that a heriot service be seisable and therefore the judgement be  erroneous for where the tenure be that the lord shall have the best beast for  a heriot it be in his election what he will take for the hest and what he  conceive to be the best he may well take although it he not so and therefore  the difference be betwixt a tenure of yield annual a ox and of render annual  his hest hest for in the first case it S in the tenant election what he will  render but in the last the lord have election what he will prender and  therefore Popham say if at this day one make a gift in tail or a lease render  annual his hest hest the lessor or donor may seize what he think to he the  hest hest as if I give to one my hest horse in my stable he well may take he  without my delivery so by this reservation it be quasi a agreement of the  tenant and a gift by he that the lord at his election may take his hest hest  and otherwise the lord shall not have it for if the tenant will not render it  but the lord he put to distrain he can never have that which be reserve but  that only which be receive Popham and gawdy say when the lord seize it it be  quasi a seize by the hand of his tenant for it be by his agreement at the  creation and as a gift by he as to the objection against the plead they hold  it to he well enough for by the novel assignment the bar be out of door and as  if it never have be plead as Henry pl S it may he that he take a ox in black  acre be his own land for damage pheasant and another ox in white acre as for  the heriot so they may well stand together and if the case he so he can not  otherwise have plead it wherefore they all resolve for the plaintiff in the  writ of error but they say they will advice and confer with the justice of the  common plea to know their reason it be say at the bar that the judgement in  the common plea be when only three justice be there and one of those three be  against that judgement el adjournatur afterward in mich term pound Elizabeth  the judgement be reverse for the matter in law