coke a doctor LEYFIELDS case hill James in b r in trespass for take and carry  away corn and hay the defendant plead that Q Elizabeth by letter patent demise  the rectory of c to a for his life who demise to b for year and that as  servant to b be take the corn c as tithe but the defendant in his plea make no  prefert of the letter patent upon demurrer assign for cause the want of colour  judgement be give for the plaintiff and upon error bring that judgement be  affirm resolve colour ought not to be give to the plaintiff when the special  matter of the plea bar the plaintiff although he have right before colour need  not be give note every colour ought to have four quality it ought to be a  doubt to the lie people colour as colour ought to have continuance although it  want effect it ought to be such a colour that if it be of effect will maintain  the nature of the action colour ought to be give by the first conveyance the  lessee for year ought to make prefert of the letter patent make to the lessee  for life for if he who be party or privy in estate or interest or he who  justify in the right of such person plead a deed although he who be privy  claim but parcel of the original estate prefert shall be make although a deed  be destroy by fire or other casualty prefert must be make or the plead will be  bad note in the case at bar the interest be gain by the act of the party but  when the law create the estate and the deed do not belong to he nor ever be in  his power he shall not show it a plea which amount to the general issue be  have on special demurrer SC cro James buist John leyfield doctor of divinity  bring a action of trespass in the king bench hill James king rot against Henry  Hillary for corn and hay take and carry away at old Cleve in the county of  Somerset the defendant plead in bar that queen Elizabeth be seize of the  rectory of old Cleve in the same county in her demesne as of fee as in right  of the crown of England and by her letter patent June of her reign without say  a here show forth demise the say rectory to conand prowse for his life who Jan  year James king demise the say rectory to George Pincomb for eight year if the  say conand tam day live and that the defendant as servant to the say George  take the corn and hay as tithe sever from the nine part and aver the life of  the say conand upon which the g term for year or personal estate can proper  speak be entail for where a term or other personal estate be limit to one in  tail it be a absolute and complete disposition of the whole term to he  Leventhorpe v ashby roll ab seal v seal I p William Butterfield v Butterfield  I Ves Stratton v pain brown PC earl Chatham v Tothill brown PC beard v  Westcoll barn Ald turn c c brouncker v Bagol I Meriv and the legal estate of a  term for year can be limit to any one in tail with a remainder over for this  tend to a perpetuity and therefore the remainder be void but a term be limit  in trust for h in tail proviso if z die without issue male in the life of h to  c in tail the remainder be good Howard v duke of Norfolk Swanst can in Charles  but where personal estate be give to a and his male issue and for want of male  issue after he to b and his male issue a take the absolute interest in the  personal estate Donn v penny Meriv a Bulstr Cr James roll Rep roll Rep   a  lane coke report b er p plaintiff demurrer in law and show the cause of his  demurrer because the defendant plea amount to the b general issue and it be  adjudge in the king bench that the bar be insufficient because the defendant  in his plea c do not show the court the letter patent of queen Elizabeth make  to conand prowse which the court take to be matter of d substance and which  the defendant ought to have show forth although he in who right he justify  have but part of the estate whereupon a writ of error be bring in the  exchequerchamber and there two error be move one which be assign by the  plaintiff for the cause of demurrer S that the say plea amount to the general  issue because the defendant give the plaintiff coke b no colour in which case  no judgement ought to have be give against the defendant but the court ought  to have rule he to answer over the second that for want of show thesaid letter  patent the court ought not to have give judgement against the defendant for  two reason because by law the letter patent need not be show forth if they  ought to have be show yet that be but matter of form and not of substance and  therefore by the statute of e Elizabeth Reg c forasmuch as he have not show it  for any cause of his demurrer he shall n a take advantage of it as to the  first it be object that the say plea in bar amount to the f general issue  because the defendant have not give any colour to the plaintiff nor any  possession upon which he may ground his action and thereupon they cite f g e a  in trespass for certain cartload of oat take and carry away at Bodmin against  the prior of Bodmin the defendant say that the corn be grow in a certain place  in Bodmin in the parish of Bodmin whereof he be parson iniparsonee and be  oblige by the rule of the court to show how he come to the same parsonage say  that he have the impropriation by title or prescription and that the corn be  sever from the nine part and that he take they as his own good and give colour  that he deliver they to one t who deliver they to the plaintiff to keep and  the defendant take they and in h h a Robert parson of the church of Clifford  bring a action of trespass against diverse and declare of his good take and  carry away S wheat barley three coverlet and three blanket as to the wheat and  barley the defendant say that before the trespass one a be parson of the say  church and the parishioner have sow their land with wheat and barley the first  day of may and afterward the same day the said a make the defendant his  executor and die and give colour to the plaintiff that he be institute and  induct parson of the say church and afterward the parishioner sever the corn  from the nine part and the plaintiff as parson take the bear and the defendant  as executor take it out of his possession and a h a b in trespass against b  prior of l for break of his close and take and carry away his grass be in cock  the defendant as to the close plead his freehold as to the cock he say that he  himself be parson imparsonee and that the place where be so much land of such  a town within the same parish and he be compel by the court to give a name to  the place and that the cock be there grow and sever from the nine part and you  claim to be parson of the same church by the king presentment by his letter  patent whereas you be not institute nor induce take the coke a same cock and  we take they again and there fortescue and Newton conceive that the colour be  do good and in h a the b winch Jenkins cent c Cr Elizabeth Leon Bulstr Cr  James light Rep d   light a e Leon Cr Elizabeth hob hut more roll Rep Goldsb  Savil palm Anders   b postea a b jenk cent   light a b f Cr car Cr Elizabeth  Cr James side g   a Br travers per sans Ceo postea b Br colour Doct placit h  Br colour Br emblement postea a a Br jurisdiction Fitzherbert jurisdict Br  colour postea a Q stand coke report b er p b vicar of Saltash bring a action  of trespass for carry away his good in Saltash the defendant allege that the  dean of Windsor be parson of Saltash and that he as servant take the good as  his master good and the plaintiff will have take they from he and he will not  suffer he and rule by the court no plea because the defendant do not  acknowledge any possession in the plaintiff nor property in he at the time of  the say good c h b the abbot of saint mary of York bring a action of trespass  against John parson of the church of d for take at d in the county of York the  defendant say that there be a chapel of our lady in the city of York in the  defendant parish in which chapel there be a image of our lady to which the  people use to offer gold and silver and that the say be offer there and that  he take they away as he lawful may and give colour to the plaintiff S that he  deliver the money to b to keep for the defendant use who deliver the money to  the plaintiff and the defendant take it out of his possession c and in h b a  in d trespass the plaintiff declare of two horse wrongful take the defendant  say that the Lord Latimer be lord of the barony of Godford which be a ancient  barony and have be time out of mind c within which he and all his ancestor and  all those who estate he have in the barony have have waif and stray a tempore  pron  interrog  c and further say that the say horse be steal and bring within  the barony where c and there the horse be waive wherefore the defendant as  servant to the say lord and by his commandment seize c and the plaintiff take  they and the defendant take they again and exception be take to this plea  because the defendant give not the plaintiff any colour for although they be  waif out of his franchise and the defendant seize they the plaintiff have no  colour to take they wherefore the defendant say that the plaintiff suppose  that the property be in he before the steal take they but to totan curian the  plea be nought without say in fact that the property be in he wherefore he  plead accord and many other case be put to this purpose which I purposely omit  vide a e b against which it be argue by the counsel on the other side that in  this case it be not necessary to give colour for two reason because the  defendant justify as servant because the beginning of the bar be with the  queen letter patent as to the first b e S a be cite where in a action of  trespass for break his close and thirty load of wheat take and carry coke b  away the defendant plead that one sir c m be seize of a carve of land whereof  the place c in his demesne as of fee and sow the same land with wheat and that  the defendant as his servant and by his commandment enter into the same land  and cut the wheat and carry it away as he lawful may and it be move that the  bar be insufficient because the defendant give no colour and it be hold by all  the justice that he shall not in this case give colour to the plaintiff  because in all case where a man justify as c servant to another and by his  commandment he shall not give the plaintiff any colour as to the second colour  always ought to be give by he who be d first in the conveyance or else all  before be waive and therewith agree e h b e a f e a g e a and in this case  queen Elizabeth be the first in conveyance by her letter patent and the  defendant can suppose that the plaintiff claim by former letter patent for  then that will give the plaintiff a good title as in h colour in trespass for  break his close b post a Fitzherbert colour Br Tresp c post a h b Fitzherbert  replication Br property Br colour d post a Br colour Doct pl a Br colour Br  property Br jurisdict b post b Br colour Br traverse Doct plan Cr Elizabeth c  Doct plan Cr Elizabeth Cr James d post b e Br colour postea b f Br colour Br  Title Br trey g Br colour coke report a er p the defendant say that one h  feoff he and the plaintiff claim by colour of a lease make to he for term of  year before the feoff where nothing pass enter c and there Fitzherbert  conceive that the plea be not good for if such lease be it passes present and  when he plead that the plaintiff claim by colour of a lease for year where  nothing passes it be repugnant in itself for when he say by colour of a lease  this word lease imply a lease in law for otherwise it be no lease as in assize  it be I no plea to say that one h feoff he and the plaintiff claim by colour  of a feoff where nothing pass enter for the law intend it be no feoff without  livery and therefore it be the king use to plead that the plaintiff claim by  colour of a deed of feoff where nothing pass c for by the deed without livery  nothing in truth pass so if the defendant shall say in the case at bar that  the plaintiff claim in by colour of a former grant of the say queen by her  letter patent c that imply a lawful grant c but both these reason be disallow  by the justice for as to the first it be true when the defendant in trespass c  plead that the freehold be in I S and that be by his commandment enter or that  I S be seize in his demesne as of fee which be all one as the book be in m e  and that the defendant as his servant and by his commandment enter there be  need not give any colour because notwithstanding the fee or freehold be to one  yet the plaintiff may have a lease for year c and coke a therewith this agree  h a but when special title be make as in r John atwood bring trespass of break  of his close against one John Dingle and William Dingle the defendant say that  one Thomas atwood be seize thereof and feoff I b and r S who feoff sir John  Norbury Knt and the say John Dingle in his own right and the say William as  servant to he c and give colour to the plaintiff by the say Thomas atwood and  h a b Robert Rednesh bring a writ of forcible entry upon the statute of h  against I b who placitavit quod johan hoke hen atwood fuer seisili c  feqffaverunt fine et sackville in fee and the defendant ut to be a servant c  et devoted to color prout it is necessary and traverse the force for when the  defendant make special title to he in who right he justify as servant there it  shall not be intend that the plaintiff have any interest in the land and so be  the difference as to the second reason the defendant ought to give colour by  former letter patent S multicolored quarundam a letter to stand open factprd  the plaintiff de property prd ante c pro boundary c Himself nothing to go over  and he shall not say that the plaintiff claim multicolored permission sive  dimission e but multicolored Iliterarfim to stand open c and that the colour  shall be give in such case appear in h a where in the same case colour be give  but it be resolve that in the case at bar colour ought not to be give to the  plaintiff and the reason that colour shall be give in a writ of entry sur  seize writ of entry in nature of assize assize trespass c be that the law  which prefer and favour certainty as the mother of quiet and repose to the  intent that either the court shall adjudge thereupon if the plaintiff demurrer  or that a certain issue may be take upon one certain point require that the  defendant when he plead such special plea that notwithstanding that the  plaintiff miy have right the defendant shall give colour to the plaintiff to  the end that this plea shall not amount to the general issue and so to leave  all the matter at large to the jury which will be full of multiplicity and  perplexity of matter and although colour be but a fiction yet law fin@qit itbi  to take a stand cequitas vide doctor and student c f but when the special  matter of the plea notwithstanding that the plaintiff have right before utterl  that bar he of his right in such case the defendant need not give any colour  because he bar the plaintiff of his right if he have any in which case it will  be in vain to give the plaintiff colour where it appear upon the matter of the  plea that he have no right for therefore in a real action as assize writ of  entry in nature of h Doct plan I Doct plan raze Ent b a Doct Stud a king Doct  plan l Cr James Cr Elizabeth Doct plan m e Ant a Br colour Br trey Cr  Elizabeth m Doct plan Doct plan Cr Elizabeth Br colour coke report b er p  assize c if a collateral warranty be plead and the defendant rely upon it or  if a estoppel coke b be plead or a fine levy with proclamation c there it be  not necessary to give any colour because the plaintiff be a bar although he  have right and therewith agree h trespass so and for the same reason if the  defendant convey to himself a title by Act of parliament as it be hold in e a  b when one justify his entry by a cause which bind the plaintiff or his blood  for ever he shall not give any colour and therewith agree b e a b vide c h a e  title assize but if a man plead a descent in bar yet the defendant ought to  give colour for that bind the possession and not the right as it be agree in h  and a h a if in trespass for good take away the defendant justify because he  have waif within his manor and show that one steal the say good de in pardon  and waive they within his manor wherefore the defendant seize they it be good  without any colour and therewith agree b e b but it be there hold by all the  justice that if the defendant have say that a be possess of the good as of his  proper good and that one b have steal the good ut above that he ought to give  colour to the plaintiff a for then he prove that no property be in the  plaintiff so he have no colour of action but there in the same case be show  that they be steal extra possession cujusdam pardon so it be not deny but that  the property be in the plaintiff and he be not bind to show express in who the  property be the same law of a c sale in market overt if he have say that such  a one sell they he need not give colour but if he say that such a one be  possess of the good as of his proper good and sell they in market overt he  ought to give colour and all this appear in the say book of d e b but I  conceive that the say case be not well report for the reason there give make  against the opinion of the justice for their reason be that the plea shall not  be good without colour when the property be allege in a certain person because  it be prove that no property be in the plaintiff and so he have no colour of  action ergo it be a good reason that no colour shall be give because it be a  absolute bar of the property and of all the plaintiff right as appear before  and so be the book in h a b in the same case when the property be allege in a  person certain and therewith agree e e b and f e a and where in g e a the  defendant when he justify for wreck give colour it be hold in e b and e a that  in such case no colour shall be give and the reason of all the other book  agree with it so when the matter of the plea bar the right of the plaintiff no  colour shall be give coke a also when the defendant entitle himself h by the  plaintiff himself no colour shall be give h I h b also when a man plead to the  writ or to the action of the writ no colour shall be give king e and for the  case of tithe which be the case at bar he who justify for they shall not give  colour for to whosoever the property be and whosoever sever they from the nine  part they belong to the parson and therewith agree a post b b Fitzherbert  trespass Br colour Doct plan b c Br colour a h a before a b Fitzherbert colour  Br estray Br forfeiture de biens Br trey Doct pl a that in trespass for take  good a justification which deny the plaintiff right of property must show that  he be possess Vid Hallet v bird I l raym c Doct pl raze en b d e b above e Br  colour f Ant b   a Br trey Br colour Doct plan g Fitzherbert colour Br colour  h Doct pl I Br trespass Br colour king Br colour Doct pl Plowd a Perk sect  coke report b er p e e b a m and as to the say case which have be put on the  contrary part in the case of n e a where colour be give in the case of tithe  Brian chief justice there hold that it be not necessary to be give for such  plea be good without colour and as to the case of oh h a there colour be give  but by no rule of the court and the opinion in p h be not to the contrary  inasmuch as he take upon he to give colour if any be necessary but such colour  which he give be not good the case of Q h be not of tithe but of other good  and therefore be not to be resemble to this case in the case of a h b no  colour need be give but their moil towards the end of the case say if any man  take my good or money and offer they to a image in that case I be bar against  he as of good b sell and toll in a fair or market in which case no colour  shall be give and as to the case of c h b a the case of d waif when the  defendant allege that the property be in the plaintiff c it be resolve that no  colour shall be give and it appear before by e e b and the other book that no  colour shall be give in case where the defendant allege that the good steal  and waive be good cujusdam man pardon and in the end of the case of f h a the  reporter say qure if it be necessary in this case to give colour to the  plaintiff because by this plea the property of the horse be not deny to be the  plaintiff before the steal and then it seem the plea be good without colour  and there the reporter further say vide such matter in a replevin a Edward  where he give no colour where he avow for wreck of the sea and the case which  he mean be in hill g e a William de Newport of London bring a replevin against  sir Henry de Nevil Knt and declare of the take of the good to the value c S  ten last of herring in the town of Walring the defendant plead that the last  of herring be cast by tempest of the sea out of any ware upon his land in  Walring where the plaintiff have declare and that the defendant have franchise  of wreck through the whole town as appendant to his manor of Walring and so  his own good judgement if he shall be answer to this writ and in this case two  point be resolve coke b that against this h special matter the plaintiff be  not receive to a simple averment without answer to the cause notwithstanding  the defendant do not acknowledge that I the property be at any time in the  plaintiff yet the plea be good for when good be find in the sea then they be  out of the custody and possession of every one then the lord upon who land  they be cast need not acknowledge who good they be and the plaintiff by the  rule of the court be drive to answer wherefore he say that the defendant take  the good out of the possession of the merchant and mariner and the defendant  be compel by the court to take issue thereon in which case it be to be observe  that if the defendant have general claim property be shall not only say that  the property be in he but further and not in the plaintiff or otherwise he do  not answer the king declaration but in the case at bar because the matter of  the plea bar the plaintiff of his l Br colour m   b   a Br colour Doct plan n  e a above oh Ant b Br Tresp Br colour Br emblements p h a b before b  Fitzherbert colour Br colour Q before a h a Fitzherbert colour Br Tresp a Ant  a Fitzherbert repeat Br property Br colour b Cr Elizabeth c Ant a Br colour  Doct Pla d cro Elizabeth e before b Fitzherbert colour Br estray Br forfeiture  de biens Doct plan f above g Fitzherbert replevin h   light b I cro Elizabeth  king   light b coke report a er p right he need not deny the plaintiff  property notam reader every colour ought to have four quality I be made ought  to be a doubt to the lie people m h a h a h e b h h h Tresp h b h as where the  defendant say that the plaintiff claim by colour n of a deed of feoff c that  be good for it be a doubt to lie people if land shall pass by deed only  without livery or not a that colour as a colour ought to have continuance  although it want effect as if the defendant give colour by colour of a deed of  demise to the plaintiff for the life of I S who be dead before the trespass  that be not any colour for it do not continue but the defendant may well deny  the effect of it that be claim by colour of a deed of demise to he for his  life where nothing pass and so there be a difference betwixt the continuance  of the colour and the effect of it e b H 6 2l a h a h a a h e b vide e b h b a  b it ought to be such a colour that if it be of effect will maintain the  nature of the action as in a assize to give he colour of a freehold and not as  guardian in knight service ass p ass p e ass h a b not to his ancestor where  the action be of his own possession c colour ought to be give by the first  conveyance as have be say otherwise all the conveyance before be waive h b e a  e a e a l e a h b b as to the other error which be assign the say two point be  argue if the letter patent ought to be show by the defendant who justify as  servant to he who have but parcel of the estate of he to who the letter patent  be grant admit that he ought to show they if the coke a omission of this  clause cur l Doct pl m Fitzherbert colour Br colour Br general issue Doct plan  n cro James a Doct and Stud a Doct plan b Doct pl c Doct pl before b b there  may be imply colour as well as express beside the instance of imply colour  cite above in assumpsit infancy accord and satisfaction or a release c may be  either plead or give in evidence under the general issue Halton v Morse salk  Hawley v peacock camp so also in debt on bind make by a marry woman the  defendant may plead coverture or give it in evidence upon non be factum James  v folk Mod so likewise in trespass quare enclosed space to break in pieces if  the defendant plead that the plaintiff be seize c and make a lease to he for  year there be no occasion to give express colour so in debt for rend upon a  demise the defendant may plead a entry and eviction before any rend become due  or he may give it in evidence upon nil debet Halton v Morse where sum so also  the plea of book property may be consider as give imply colour Dodd v kiffin  TR argent v durant TR for in these case from the nature of the defence the  plaintiff have a imply colour of action have in point of law if the fact plead  be true but which be proper refer to the decision of the court the omission of  give colour where colour be require be aid by the replication Ashmead v ranger  I l raym in that case holt CJ say that upon general demurrer the defect may  have be take advantage of but this be a mistake the demurrer must have be  special post p Patrickson v Barton cro James since stat Ann c there can be no  doubt that want of give colour can be take advantage of only upon special  demurrer in give colour care must be take to give colour of title only for if  the defendant give the plaintiff a real title it be bad Radford v Harbin cro  James give colour where it be not necessary do not vitiate the plead tailor v  Eastwood I east for the difference between express and imply colour Vid holt  arg Reg Plac and upon colour general Vid Doctr Plac colour Com dig plead m  doctor and student b cap Bac ab plea I vin a colour reeves hist Vol three  black command city on plead that edition steph on plead et seq coke report b  er p hic lengthen be matter of substance or matter of form for if it be but  matter of form then forasmuch as the plaintiff have not show it particular and  express for this cause of demurrer he shall not take advantage of it by the  say statute of d Elizabeth cap and as to the first e austin case in I p m die  be cite where in a information of intrusion in the manor of east Farleigh in  ken the defendant plead the letter patent of king Henry to sir Thomas Wyatt in  tail and that sir Thomas lease to he for thirtysix year without show forth to  the court the letter patent and the Lord dyer in report the case say notam hoc  and this stand as it be say upon great reason for the lessee have but parcel  of the estate the letter patent do not belong to he but to his lessor and  therewith agree ass p a I Eatbreads case and the reason there give be because  the patent do not remain with he who have but parcel of the estate and in h  die b in b trespass the defendant say that the place where be ten acre of land  whereof the king be seize in fee in the right of his crown and by his letter  patent grant the land to the lady Carew for term of life who lease to the  defendant for year and aver the life of the first lessee and so justify and it  be move if the plea be good without show the first letter patent and it be c  hold by brown Willowby and Baldwin that he shall not be compel to show they  because the letter patent do not belong to he no more than a d subcollector  undersheriff e or incumbent because they have not any mean to make their  grantors or master show they and by they there be a difference when the  patentee grant over his whole interest there the patent belong to he and  therefore he shall show it forth but when he grant but parcel it be otherwise  and with the case of f the incumbent agree e to point out of faits g h and the  case of the subcollector and undersheriff h a h b e ib to point out de faits a  subtaxer shall justify the take of good without show the commission but if I a  man will justify the imprisonment of the body of a man by warrant he ought to  show the warrant but it be resolve that the lessee for year in the case at bar  ought king to show the letter patent make to the lessee for life for it be a  maxim in the law that if he who be party or privy in estate or interest or he  who justify in the right of he who be party or privy plead a deed although he  who be privy claim but parcel of the original estate yet he ought to show the  original deed to the court m d   light b before b e post f a die pl   b Plowd  b   light a more ob roll Rep bridge a post a ass pl Br aid de roy Br monst de  faits b buist   b palm postea a c post a d h a Fitzherbert monst de faits blow  b Br monst de faits e cro Elizabeth cro James roll Rep f Plowden b g  Fitzherbert monst de faits h palm I cro James roll Rep king   light a b a b b  post b b cro James Bulst Plowd a a b a die pl a palm roll Rep roll Rep Mod Rep  Doct plan e b c Vid Dagg v Penkevon cro James which seem contra and that the  lessee for year to who the letter patent do not belong need not make prefert  general if the plaintiff have no right to the possession of a deed or of the  counterpart he need not make prefert Jevens v Harridge sand a carver v Pinkney  lev thus in a action on a promissory note by the endorsee of a administratrix  the endorsee need not make prefert of the letter of administration because he  have not the same in his power or custody stone v Rawlinson will affirm on  error will so also where a defendant justify under process of a inferior court  coke report b er p and the reason that deed be coke b so plead shall be show  to the court be that to every deed two thing be a requisite and necessary the  one that it be sufficient in law and that be call the legal part because the  judgement of that belong to the judge of the law the other concern matter of  fact know if it be seal and deliver as a deed and the trial thereof belong to  the country and therefore every deed ought to approve itself and to be prove  by other approve itself upon its show forth to the court in two manner as to  the composition of the word to be sufficient in law and the court shall judge  that that it be not raze or interline in material point or place and upon that  also in ancient time the judge do judge upon their view the b deed to be void  as appear in e e e c but of late time the judge have leave that to be try by  the jury S if the raze or interlining be before the delivery d that it may  appear to the court and to the party if it be upon condition limitation or  with power of revocation c to the intent that if there be a condition  limitation or power of a revocation in the deed if the deed be poll or if  there want a counterpart of the indenture the other party may take advantage  of the condition limitation or power of revocation and therewith c Litt c  condition f d ass agree and these be the reason of the law that deed plead in  court shall be show forth to the court and therefore it appear that it be  dangerous to suffer any who by the law in plead ought to show the deed itself  to the court upon the general issue to prove in evidence to the jury by  witness that there be such a deed which they have hear and read or to prove it  by a copy for the viciousness rasure or interlineation or other imperfection  in erect by letter patent be need not make prefert of they for be do not claim  any thing under the charter Titley v Foxhall will in plead a deed under the  statute of use no prefert be necessary Estoffs case die Huntington v Mildmay  cro James stockman v Hampton cro car reenel v long Carthew and the reason  assign be that the dry belong to the grantee for use and beneficiary who use  have no remedy to recover at law from they Whitfleld v Faussel I Ves sen where  it be observe that it may be call a spunge reason so where by a marriage  settlement by lease and release limit to use a rentcharge be create and the  land subject to the rentcharge be limit to the husband and big heir the owner  of the rentcharge need not show the original deed create the rend for the  charter both the settlement and the counterpart belong to the owner of the  land Whitfield v Fausset where sup Prefert be unnecessary where a deed be  state only as inducement stockman v Hamplon cro car Banfil v leigh TR and in a  conveyance by feoff no prefert be necessary for the estate passes by the  livery nor be the form of plead alter by stat car c in declare on a bill of  exchange or other simple contract no prefert be make master v hiller t r so of  a award under the hand and seal of a arbitrator for it be no deed but a write  under hand and seal dod v Herbert sty very v Nicholson burr unless such award  be deliver as a deed in which case it seem it will be consider as one brown v  Vawser east when neither a perfect nor a excuse for the omission be necessary  the make of it will be deem surplusage and will not entitle the defendant to  oyer Morriss case salk and the omission of prefert when necessary can only be  take advantage of by special demurrer and whether c Fid full when prefert be  necessary and when not Com dig pleader I oh vin ab faits m a m a Hargrave note    Litt b Bellamy case   b and note c ib I city plead that edition Wymarks case    a steph on plead a   a   a hob   light b b a b b cro car   light b b a b d  it be to be presume that a interlining if the contrary be not prove be make at  the time of make the deed trowel v castle keb and Vid vin ab faits u c light  sect f a sect   light a b d Br show de faits coke report a er p these case  will not appear to the court or peradventure the deed may be upon condition  limitation with power of revocation and by this way truth and justice and the  true reason of the commonlaw will be subvert but yet in great and notorious  extremity as by casualty a of fire that all his evidence be burn in his house  there if that shall appear to the judge they may in favour of he who have so  great a loss by fire suffer he upon the general issue to prove the deed in  evidence to the jury by witness that affliction be not add to affliction and  if the jury find it b although it be not show forth in evidence it shall be  good enough as appear in ass c p but in d ass p the judge will not suffer a  deed to be give in evidence which be not show forth to the jury vide ass p the  like but the e copy of a record may be show and give in evidence to the jury  for record be of so high a nature and such credit in law that they can be  prove by other mean than by themselves and no rasure or interlineation shall  be intend in they and therefore a copy of a record be testify to be true be  permit coke a to be give in evidence but the sure way be to exemplify it under  the great seal or at least under the seal of the court and in the say case of  casualty by g fire there ought to be great care and discretion in the judge  for notwithstanding any such casualty by fire he in plead ought to show forth  the deed to the court the wise his plea will be insufficient and judgement  shall be give against he for the law will rather suffer a h mischief in a  private case than a I inconvenience which by the break of the rule of law  shall be bring upon the public e also the deed ought not only as have be say  to approve itself but it ought to be prove by other know by witness that it be  seal and deliver for otherwise although the fabric and composition of the deed  be legal yet without the other it be of no effect a post a b   light b c Br  verd d Br grant Br nosm e Doct plan strange f Doct plan g before b h e b dyer  pl   light b b light sect h r Fitzherbert voucher I ass pl f e where a deed  have be lose by time and accident or by any other casualty as by fire or where  it be in the hand of the opposite party or be destroy by he no prefert be  necessary but the circumstance necessary to excuse the prefert shall be state  read v Brookman TR if prefert be make the adverse party be entitle to oyer but  in that case the court will give the party leave to amend the plead and state  the special circumstance in excuse of prefert ib if the adverse party plead  non be factum the plaintiff who have inadvertent make prefert will not be  permit to give at the trial secondary evidence of the content of the deed  smith v uvoodward east if the deed be lose after it have be declare upon the  plaintiff may move to put off the trial and amend ib the motion must be make  before the trial it be too late to move it at nisi prius pain v bustin I stark  a deed allege in a plea to be lose by time and accident may be give in  evidence if have be lose at the time of plead it be find before trial for the  averment of the loss relate to the time of plea plead and apply only to the  excuse of prefert Hawley v peacock camp but in plead a lose deed all the form  of plead a exist deed must be adhere to except make prefert of the deed itself  Hendy v Stephenson east and Vid saltern v Melhuish ambler read v Brookman be  general suppose to have go a step further than former case Vid Hendy v  Stephenson where sup it seem to have be for a long time the opinion in the  profession that a lose deed can not be plead without a prefert and in such a  case the relief be in equity notwithstanding the law have be settle to be  otherwise the ancient jurisdiction of the court of equity be hold to continue  Vid Bromley v holland Ves ex part Cheenaway Ves east India company v Baddam  Ves Fonblanque on equity coke report b er p and all this which have be say of  deed as to the legal part may be also affirm of the king letter patent and the  say maxim aforesaid be prove by many authority in law and therefore in h b in  king William pole assize the case be such sir John Clinton Knt by his deed  indent feoff William Daventure and his heir yield to the say sir John and his  heir the yearly rend of five mark with clause of distress which rend after the  death of sir John descend to sir William elington Knt as to his cousin and  heir which sir William by his deed show forth grant to the say William pole  now plaintiff who be a lawyer pro council expense impendend S d parcel of the  say rend to have and receive to he for his life and that he be thereof seize  and seize and there Westbury and other take a difference when the first  grantee grant over as great a estate as he bad and where he grant a less  estate for when he grant as great a estate as he have by the express grant the  whole estate in the rend remain in the person of the second grantee in which  case the first deed of right belong to the second grantee and therefore in  assize bring by he of this rend he ought to show forth the first deed but  where he grant a less estate than he have see where he that have a feesimple  grant for life or make a gift in tail the second grantee shall not be compel  to show the first deed make to his grantor because the fee remain in the  lessor or donor to who the deed belong and to no other and therefore he shall  not be compel to show the first deed but the opinion of the whole court be  against the plaintiff and the reason be because he be privy in the estate of  the rend and claim by the first grant vide Litt lib c release fol note every a  release make to he who have a reversion or remainder in fact shall serve and  aid he who have the freehold as well as he to who the coke b release be make  if the tenant for life have the release in his hand to plead and the reason of  it be because there be privity in estate betwixt he in reversion or remainder  and the tenant for life and yet the deed do not belong b to he but to he in  reversion or remainder in the same manner Littleton say c where a release be  make to tenant for life or to tenant in tail it shall enure to they in the  reversion or remainder as well to the tenant of the freehold and they shall  have as great advantage of it if they can show it but in respect of the  privity of estate if they can show it they shall not take advantage of it and  therewith agree h d to point out of faits where Priscot chief justice of the  common plea hold that in many case a man shall not plead a release or deed  which do not belong to he nor can have a action to recover without show it as  if the seize make a lease for life who be implead in a prci pe and make  default after default and the seize be receive he shall not plead a release  make by the disseizee to the tenant for life without show it so the e lord by  escheat shall not plead a release make to the seize by the disseizee without  show it neither shall he in remainder be receive without show the deed and yet  it do not belong to he nor have he remedy to get it and it be say that these  case be strong than the case at bar for when the say conand make a lease to  the say George for year the lessee may bind the say conand by covenant or  otherwise to show the letter patent to the court when need shall be but so can  the tenant for life or he in remainder or reversion for there no contract be  make betwixt he who plead the deed and he to who the deed be make it be  further say in h that it be agree a that guardian in chivalry shall plead a  release make to his tenant without show it and that be adjudge as it be there  say and b tenant in dower shall plead a release make to her husband without  show it and in h b king Fitzherbert to point out de fait Br to point out of  faits a light sect   light b light f a b Ro c   light a b a light sect light f  a b d   light b e   light a d   light b postea b b   light b cro car postea b  coke report a er p it be agree by all that he who be privy c in estate as  feoff lessee for year c and he who justify as d servant to he who be privy  ought to show the deed in court which they plead c and e in debt against the  heir he shall not plead a release make to the executor without show it for  there be privity betwixt they and therewith agree e to point out of faits and  there be another maxim in law that where a man be a stranger to a deed and do  neither f claim the thing comprise in the grant nor anything out of it nor do  anything in the right of the grantee as bailiff or servant there he shall  plead the coke a patent or deed without show it if the g tenant plead a grant  of the lord with attornment he shall not show it and such de like but when he  who claim the thing or any right or interest out of they or justify in right  of the grantee there he ought to show the first grant as the second grantee of  the rentcharge shall show the first grant and so shall his bailiff and the  grantee of the rentcharge shall not plead the release of the disseizee to the  seize without show it for although he do not claim the land of which the  release be make yet he who have a rend out of land have a right in the land  which by release of all his right will be extinguish and therefore he ought to  show the deed in such case and therewith agree h h b and the disseizee shall  not plead a release to the seize neither of the right in the land nor of rend  issue out of the land without show it for where one claim the thing to which a  release be make or a right or interest out of it the law make a privity in  respect of his estate or right in the land to such intent that he shall not  have avail of the deed without show it which case be strong than the case at  bar for in the case at bar he claim estate and interest in the land itself  which be demise by the letter patent and therefore he ought to show they and  as to the case which have be urge to the contrary and first austin I case  there be not any authority in the book that it be either allow or disallow by  the court and the say case of king Eatbread in ass p there the prior alien  make a lease for life which he make as prior out of the inheritance of the  house and not by force of the letter patent by which but a chattel pass and in  the case of h there Fitzherbert Montague and knightly hold that the letter  patent ought to be show in such case et such gens contragentem and as to the  second point it be object that it be but matter of form and the m substance be  the grant of queen Elizabeth by her letter patent which be confess by the  plaintiff by his demurrer and the book in n e a b be object where choke hold  that if one be bind upon condition to perform the covenant in certain  indenture and he plead performance without show they in court and the  plaintiff reply and show a breach be make the bar good for he say that of such  thing which be not material the replication will make the bar good by which it  be infer that the show of the indenture be a thing of form and not of matter  and a judgement be cite mich coke b Elizabeth in this court in the mayor and  commonalty of a Launcestons case in trespass in Cornwall the letter patent of  queen Elizabeth be plead see that queen Elizabeth by her letter patent to go  away c without say cur lengthen upon which the other party demurrer general  and the plea adjudge good but it be resolve that it be matter of substance as  c Br to point out of faits   light a d Cr James   light a Plowd b e   light a  f h b palm   a b Yelv Br to point out of faits g Doct plan a ante note h Br to  point out of faits I dyer pl   b Plowd b   light a more hob roll Rep bridge  before a king before a ass pl Br monst of faits l h dyer pl Bulstr   b palm m  Doct pl a n   b   a a Cr Elizabeth coke report a er p appear by the cause for  which deed shall be show forth f and as to the say case of the mayor and  commonalty of Launceston it be true that such judgement be give upon argument  of other point but in a writ b of error mich Elizabeth upon the statute of  Elizabeth error be assign that the letter patent be not show forth and it be  resolve that for this cause the plea be insufficient in substance and  therefore it be resolve by all the justice of the common plea and the baron of  the exchequer that the judgement shall be reverse and of such opinion in the  case at bar be all the judge of the common plea and baron of the exchequer and  so the judgement give by the judge of the king bench in the case at bar be  affirm observe well reader this case adjudge by all the judge of England and  baron of the exchequer notam reader as to the say three case put in h know of  the c guardian tenant d in dower and tenant by the courtesy they be good law  for as to the say two case of guardian and tenant in dower there be a  difference where a particular estate or interest be gain by the law and where  by the act of the party in the case at bar the interest be gain by the act of  the party who may provide for himself but when the law create the estate the  deed do not belong to he nor ever be in his power then he shall not show it as  in the say case of guardian in chivalry and therewith agree e darrein  presentment e guard and therefore the guardian in chivalry in a writ of dower  bring against he shall not plead e detainment of charter because they do not  belong to he but to the heir as it be hold in e c the same law of tenant in  dower as it be hold in e horse de son fee h a h a h a vide h a h and so of f  tenant by statutemerchant staple elegit etcetera for they come to the  possession by execution of law and against the will of the terretenant who  have the deed for judgment To give back in reluctant and therewith agree h a b  but g the tenant by the courtesy ought to show the release make to his wife  for although his estate be create by coke a law yet the deed belong to he g  and he have it in his power because the deed be make to his wife and he may  detain it during his life T17de h note reader when a plea amount to the a  general issue and the plaintiff demurrer upon it if the defendant will not  plead the general issue but join in demurrer the court shall adjudge against  he at the commonlaw upon the general demurrer and after the say Act of b  Elizabeth upon such special cause show as be in the case at bar and by these  reason and difference you will the better understand your book and the book  which prima fancy to some seem to disagree be well reconcile f the omission  can be take advantage of only on special demurrer note c ante a b cro  Elizabeth c before b   light b d before b   light b cro car cro James e   a    light a die pl Doct pl Perk sect e Fitzherbert dower Vet n b b f   light b   a  cro car cro James g   light a g but in debt on bind assign by commissioner of  bankrupt prefert be not necessary for the assignee come in by act of law grey  v fielder cro car and yet such bind be clear in the power of the assignee it  shall be observe that general assignee be not introduce till stat Ann c but  the principle seem applicable to general assignee as well as to the particular  assignee under stat Elizabeth c a Doct plan before b cro Elizabeth Leon Doct  Stud b   light b hob winch cro James Noy b Elizabeth c before b note b coke  report b er p