made a Feoffment to the use of himself for life the remainder in tail to I. S. He in the remainder Levied a Fine And the Counsel of the Marches upon a surmise That the Tenant for life died seised according to their Instructions would settle the possession upon the heir of Tenant for life against the Conusee For their Instructions were made That where a man had the possession by the space of three years that the same should be settled upon him until trial at Law were had But the whole Court was against it because it doth appear that he had but an estate for life and so the possession appertained to him in the remainder And here it was said by Justice Barckley that their Opinion hath been That the possession of Tenant for life should be the possession of him in the Remainder as to this purpose Note that the Principal case here was although the Case before put was also agreed for Law thus Tenant in Tail levied a Fine to the use of himself for Life the remainder in Fee to I. S. and died In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail against the Purchaser who held in by the Fine which had bar'd the estate tail by which the Issue claimed and the whole Court was against it for which cause a Prohibition was granted 80. Habeas corpora was directed to the Porter of Ludlore to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench the case shortly as appears upon the retorn was this Powell the Father brought a Bill in the nature of an Information against the said Iohn and William Shield before the Council of the Marches in Wales for an unlawful Practice Combination and Procurement of a clandestine Marriage in the night betwixt Mary Shield a Maid-servant and the Son of Powell who was a Gentleman of good credit and worth the Parson also being Drunk as he himself sware and the same also being without Banes or Licence for which offence they were severally Fined to the King and an hundred Marks damages given to the Plaintiff and farther ordered by the Council that they should be imprisoned till they paid their several fines to the King and damages to the Party and found Sureties to be bound in Recognisance for their good behaviour for one year and till they knew the farther Order of the Council and these were the causes which were retorned And upon this retorn Glynn who was of Counsel with the Prisoners moved many things and many of them as was conceived by the Court altogether impertinent But the Objections which were pertinent were these First That the Councel of the Marches as this case is have no Jurisdiction because the clandestine Marriage is a thing meerly Spiritual and therefore not within their instructions The second was That they have exceeded their Instructions in that they have given damages to the party above fifty pounds For by their Instructions they ought not to hold Plea where the Principal or Damages exceed fifty pounds But as to the first he said there may be this Objection That they did not punish them for the clandeâ—â—inâ— Marriagâ— which in truth is a thing meerly Spiritual but for the unlawful Practise and Combination and for the execution of it To which he answered That they have not Juristiction of the Principal and therefore not of the Accessory here note that it was afterwards said by Bramston Chief Justice That the unlawful Practise and Combination was the Principal and the clandestine Marriage but the Accessory which was not contradicted by any Farther it was objected by Glynn That they were Imprisoned for the damages of the Plaintiff and it doth not appear whether it was at the Prayer of the Party as he ought by the Law Bankes the Kings Atturny-General contrary And as to the first Their Instructions give them power to hold Plea of unlawful Practises and Assemblies And this is an unlawful Practise and Assembly and therefore within their Instructions And although that Heresie and clandestine Marriage and such offences per se are not within their Instructions yet being clad with such unlawful circumstances and practises they are punishable by them As to the second he said The Instruction which restraineth them that they do not hold Plea above fifty pounds is only in civil Actions at the several suit of the party But there is another Instruction which gives them power where the cause is criminal to assess damages according to the quality of the Offence and at their discretions As to the third Objection he said That the Retorn being that they were in execution for the damages it ought to be meant at the Prayer of the Party otherwise it could not be For which causes he prayed thâ—â— the Prisoners might be remanded And the whole Court Crooke being absent were clear upon this Retorn That they should be remanded because it appeareth that their Fines to the King were not payed And therefore although that the other matters had been adjudged for them yet they ought to be remanded for that one And as to the Objections which were made the Court agreed with Mr. Attorney except in the point of Damages and for the same reasons given by him But as to the point of the Damages whether they have gone beyond their Instructions and so exceeded their power in giving above fifty pounds damages or not It seemed to the Court they had and as it seemed to them if the Retorn had been That the Kings Fines were paid it would have been hard to maintain that the assessing above fifty pounds damages was not out of their Instructions but because the Kings Fines were not paid they were Remanded without respect had thereunto for the reasons given before 81. It was said by the Court That when Judgment is given in this Court against another and Execution upon it and the Sheriff levieth the mony the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it for notwithstanding such Order he may call for it And it was farther said by the Court That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs And a Writ of Error is a Supersedeas to an Execution but then there ought to be notice given to the Sheriff otherwise if he notwithstanding serve the Execution he shall not run in contempt for which an Attachment shall be granted 82. Serjeant Callis came into Court and moved this case Chapman against Chapman in Trespass done in Lands within the Dutchy of Cornwal which were Borough-English where the custome was that if there were an estate in Fee in those Lands that they should go to the younger Son according tthe custome but if in Tail the should descend to the Heir at Common Law And it was moved by him that the custom was not good because it cannot
choose their Church-wardens and they chose two the Parson chose a third The Official of the Bishop gave Oath to one of them chosen by the Parish but refused to swear the other and would have sworn the party chosen by the Parson but the Parish was against it upon which the Parson Libelled in the Ecclesiastical Court And a Mandat was here praid That the Official swear the other who was chosen by the Parish and a Prohibition to stay the Suit in the Ecclesiastical Court. Upon the Mandat the Justices doubted and desired that Presidents and Records might be searched and at length upon many Motions Presidents and Records shewed a Mandat was granted But there being Suit in the Ecclesiastical Court bâ— the other whom the Parson chose a Prohibition was granted without any difficulty But at first the Counsel prayed a Prohibition for not swearing the other which the Court refused to grant because there was no proceeding in the Ecclesiastical Court and a Prohibition cannot be granted where there is no proceeding by way of Suit Vaughan against Vaughan in Action upon the Case upon Assumpsit 51. THe Defendant did promise that he would make such a Conveyance of certain Lands and pleaded That he had made it but did not shew the place where it was made And the Court was clear of Opinion that he need not for it shall be intended upon the Land And so in case of performance of Covenants it is not needful to shew the place where c. Norrice and Norrices Case 52. COpy-holder for life where the custome is That if the Tenant die seised that he shall pay a Heriot The Lord granted the Seigniory for 99 years if the Tenant should so long live And after that he made a Lease for 4000 years Tenant for Life is disseised or more properly ousted and died Here were two Questions 1. Whether there were any Heriot to be paid and admitting there were yet who should have it whether the Grantee for 99 years or he who had the 4000 years And the Court was clear of Opinion in both points without any argument 1. That a Heriot was to be paid not withstanding that the Tenant did not die seised because he had the estate in right and might have entred although he had not the possession And Justice Barckley compared it to the Case in C. 3. Rep. 35. a. in Butler and Bakers Case where a man hath one acre of Land holden in Capite and a hundred acres of Socage Land and afterwards he is disseised of the Capite Land and afterwards makes his will of all his Socage Land in that case he is a person having of Capite Land as the Statute speaks And yet that right of Capite Land shall make the devise void for the third part for notwithstanding the disseisin yet he is Tenant in Law And as to the second point the Court was clear of Opinion also That he in remainder or he that had the Estate for 4000 years for note the Action was brought by him in the Remainder for the Heriot should not have it And their reason was because the Tenant for life was not the Tenant of him who had the future interest of 4000 years but of him who had the interest for 99 years But they were not clear of opinion that the Grantee for 99 years should have the Heriot Justice Barckley was that the Grantee for 99 years should have it But Justice Iones there being then none in Court but they haesitavit And the reason of the doubt was because that eo instante that the Tenant died eodem instante the estate of the Grantee for 99 years determineth Justice Iones put this Case A Seigniory is granted for the life of the Tenant the remainder over in fee the Tenant dieth Who shall have the Ward Justice Barckley said he who is Grantee of the particular estate but Iones seemed to doubt it Vide 44 E. 3. 13. Lewes against Jones in a Writ of Error 53. JUdgment was given for Iones against Lewes in an Action brought in the Common Pleas And Lewes here brought a Writ of Error and assigned for Error That he was an infant at the time of the Action brought against him And that he appeared by Attorney whereas he ought to appear by Guardian or procheine amy The defendant pleaded in avoidance of this Writ of Error That there was no Warrant of Attorney The Plaintiff allegando shewed the Error before And the Defendant pleaded in nullo erratum est And the Judgment was reversed But the Opinion of the Court was That the better way had been for the Plaintiff to have demurred in Law for there being no warrant of Attorney there was no appearance at all and so are the Books 38 E. 3. and 14 E. 4. 54. In Vtburt and Parhams Case it was agreed That a man may be Non-suit without leave of the Court but he cannot discontinue his Suit without consent of the Court. Davis and Bellamies Case in Attaint 55. THe Defendant brought Attaint and the Verdict was affirmed and Costs prayed upon this Rule that where the Plaintiff shall have costs there the Defendant shall have costs But they were denied by the Court for that ought to be taken in the original Action and not in case of Attaint But upon the restituatur there costs shall be given but that is in the original Action 56. If two joynt-tenants be of a Rectory and one sueth for Tithes by himself only it is nâ— cause of Prohibition So if a Feme Covert sue solely upon a desamation a Prohibition shall not be granted 57. The Sheriff of a County made a Warrant Balâ—ivis suis to arrest the body of such a man and the Bayliffs of the Liberâ—y return a Rescous And Exception was taken to it because that the Warrant was Ballivis suis and the Return was made by those who were not his Bayliffs and it was adjudged for the Liberty might be within his Bayliwick and so are all the Presidents And there was another Exception because the place of the Rescous was not shewed and for that the Book of 10 E. 4. was cited for there the Rescous was adtunc ibidem and did not shew the place To that it was answered by the Court and agreed that adtunc ibidem is altogether incertain if the place be not shewed but in the principal Case the place was shewed at the first and always after that tunc ibidem only without naming of the place and adjudgâ—d good For that tunc ibidem throughout the Declaration hath reference to the place first shewed and it was adjudged good 58. Outlawry was reversed for this Error because that the Exigent was Secund exactus ad Com' meum ibidem c. 59. A Hundred may prescribe in Non decimando and it is good for it is the custome of the County which is the best Law which ever was But a Parish or a particular Town cannot prescribe in Non decimando And
was well brought for the reasons before given and that Error is a Supersedeas to the Writ of Enquiry And it was entred for a Rule That in all Writs of Enquiry of damages notice ought to be given aswel in Real as Personal Actions 143. If a Prisoner will remove himself by a Habeas Corpus he shall pay the Costs of the Removal but it the Plaintiff will remove the Prisoner he shall pay reasonable charges 144. Dickenson Libelled against Barnaby in the Spiritual Court for these words D. is a Beastly Quean Drunken Quean Copper-nose Quean and she was one cause wherefore Barnaby left his wife and hath mispended five hundred pounds and that she keeps company with Whores And a Prohibition was prayed and granted because that the words are not actionable 145. Hill 16. Car. in this Court A. a poor man sold his estate for twenty pound yearly to be paid during his life for the security of which the Vendee was bound to A. and another in a thousand pounds the other releaseth the Bond the mony not being paid A. is compelled to have Relief of the Parish for his maintenance The Churchwardens and A. exhibited a Bill in the Court of Requests and there had remedy 146. A. and B. his wife Present to a Church to which they have no Right Question Whether that doth grant any thing to the wife or no Resolved No. For the wife is at the will of her husband and Presentation is but Commendation or the Act of the husband c. And it is not like unto an Entry in Land by them Mich. 16 Car. betwixt Nesson and Hampton Otherwise it is when the wife hath Right Sir John Pits Case 147. IN the case of Sir Iohn Pits Philizor of London it was moved that his Executors might have the profits of the Writs which are to be subscribed with his name forasmuch as all Process of the same suit ought to have the same name subscribed to them for the attendance of them being necessary they ought to have the profits according to it Tooleys case Hobarts Reports The reason which was given to the contrary was because there was another Officer who is to answer any damages by reason whereof he is to have the benefit 148. Judges are the only Expositors of Acts of Parliaments although they concern Spiritual things Searles case Hobarts Rep. 437. 4. E. 4. 37 38. 149. If horses be traced together they are but one distress And note Fetters upon a horse leg may be distreined with the horse Hillary 16º Car. in the Kings Bench. 150. A Merchant goeth beyond Sea and marrieth an Alien It was resolved that the Issue is a Denizen for the husband being the Kings subject the wife is not respected because she is at the will of her husband and also because they are but one person in Law Bacon and Bacons case 151. If a Town hath a Chappel and bury at the Mother-church and therefore have time out of mind repaired part of the Wall of the Church it is good to excuse them of repairing the Church Inhabitants of such a place prescribe to repair a Chappel of Ease and in regard thereof that they have time out of mind been free from all Reparations of the Mother-church it is good But if such a Chappel hath been built within time of memory then they ought to have proof of some agreement by virtue of which they are discharged of Reparations of the Mother-church Pasch. 17 Car. in the Kings Bench. The Inhabitants within the Parish of H. having a Chappel of Ease and custom that those within such a Precinct ought to find a Rope for the third Bell and to repair part of the Mother-church in consideration of which they have been freed from payment of any Tithes to the Mother-church Whether it be a good Custome or not Quaere for it was Adjorn Hillary 16º Car in the Common Pleas. 152. WHere the Ecclesiastical Court hath conusance of the cause there proceedings although they be Erroneous are not examinable in this Court. And it was given for a Rule That it is no cause to grant a Prohibition 153. The Sheriff in the Retorn of a Rescous said that he was in Custodia Ballivi Itinerantis And that a Rescous was made to his Baily Itinerant and it was not good otherwise if he had been Baliff of a Liberty for the Law taketh notice of him And therefore the Court did award that the Rescousers should be dismissed and that the Sheriff should bring in the man by a certain day at his peril Otherwise it is in the Kings Bench. 154. One cannot be Attorney within age because he cannot be sworn 155. Commissioners have a Warrant and they execute it with another who is a stranger to the Warrant It is good and the other person is but surplusage 156. A Prohibition after Sentence shall not be granted but in some especial case 157. It was Ordered by the Lords House of Parliament That only Menial servants or one who attended upon the person of a Knight or Burgess of the Parliament should be free from Arrest 158. Administration is granted to the wife the husband having many children Whether it be in the power of the Ordinary to make distribution or not First if there be an Executor then not Secondly After distribution there may be a Debt which was not known at the time and then the Administrator should pay it of his own goods And therefore there can be no distribution On the other side it was said If the Ordinary shall not distribute then if a man dieth Intestate and hath goods of the value of an hundred pounds and Administration be committed to the wise she should have all and the children nothing which would be hard 159. A thing which may be tried by a Jury at the Common Law is not triable in Chancery for in the first Case if they give not their Verdict according to their Evidence an Attaint lieth but in the other there is no remedy 160. After a Writ of Error granted a Warrant of Atturney cannot be filed if the party be alive who made the Warrant but otherwise if he be dead 161. A Declaration cannot be amended in matter of Substance without a new Original otherwise of Amendments of matter of Form 162. The Statute of 5 6 E. 6. cap. 1. and 1 Eliz. c. p. 2. prohibite any man to be absent from Church having no â—awful or reasonable cause A man was sued in the Ecclesiâ—stical Court for being absent from Church and he pleaded â—mething by way of excuse Hyde Serjeant prayed a Prohibition because they ought not to hold Plea of the excuse but the Court did agree that they might hold Plea of the excuse otherwise upon a false suggestion you would defeat the Ecclesiastical Court of all Conusans in such cases And therefore they were all against the Prohibition and by the Court they ought to plead their excuse there and if they will not admit of
a difference where the party comes in by act of Law and where by the act of the party he who comes in by act of Law shall not be put to his Scire facias for so he should be without remedy and if that should be permitted it should a be subtile way for the conusor to avoid the possession of the conusee and then he himself to take benefit of it and that should be a fine way to defeat the Statute Besides by this way if the Statute should be satisfied by casual profit or if the time should be expired and the Statute satisfied by effluxion of time if in that Case the grantee should be permitted to distrein the beasts of the conusee for a great Rent perhaps before that the Conusee by possibility might remove from the Land it would be a great disturbance to the Conusee Besides if a stranger enter upon the conusee the conusee upon his regress may hold over but not so in this Case where the grantee of the Rent distreins and that should be also a great prejudice to the conusee But it was objected that the grantee of the rent could not have a Scire facias and therefore if he might not distrain he should be without remedy To which he answered that if it should be so it is his own fault for he might have provided for himself by way of covenant But he conceived that he might have a Scire facias for he said that it is a Judicial Writ issuing out of the Rolls which might be framed and made according to the case of any man and it is not enough to say thâ—â— there was never such a Writ granted in the like case but he ought to shew where it was ever denied besides it is not always necessary that he that shall have this Writ should be party to privy to the Record as appâ—areth by these Books 46 Ass. Scire facias 134. 32 E. 3. Scire facias 101. and 38 E. 3. 12. Br. Scire facias 84. Again it is not necessary that the Scirâ— facias should be either ad computandum or ad rehabendum terram as it was objected for as I have said before it may be framed according to the case of any man and vary accordingly wherefore he prayed Judgment for the Plaintiff and note that at this time Justice Heath seemed to incline for the Plaintiff Thorne against Tyler in a Replevin 231. THe Plaintiff shewed that the Defendant took certain Beasts of the Plaintiff such a time and place and detained them against gages and pledges c. The Defendant as Baily of the Mannor of the Lord Barckley made conusance of the taking of the cattle and said that long time before the taking of them the Lord Barckley was seised in see of a Mannor in Gloucestershire within which there were Copy-hold-Tenants time out of mind demiseable for one two or three lives that there was a custom within the same Mannor that if any copyhold-tenant did suffer his messuage to be ruin'd for want of repairing or committed waste that is presented by the homage that such tenant so offending should be amerced and that the Lord had used time out of mind to distrein the beasts as well of the tenant as of the under-tenant of such customâ—ry tenements levant and couchant upon such customary tenements for such amercement and further said that one Greening was tenant for life of a customary tenement within that Mannor and made a Lease unto the Plaintiff for one year and that 15 Car. the homage did present that Greening had suffered his Barn parcel of the customary Tenements aforesaid to fall for want of repair for which he was amerced to ten shillings and that in Iuly 16 Car. the Defendant as Bayly of the Lord Barckley did distrein the Plaintiffs cattle being under-tenant for the said amercement upon the said customary tenement and so he made conusance and justified the taking of the beasts as Bayly of the Lord Barckley The Plaintiff confessed that Greening was tenant and that he made a Lease to the Plaintiff for a year and further he confessed the want of repairing and presentment and the amercement upon it but he denied that there is any such custome upon which they were at issue and the Jury found for the Defendant that there was such a custom and it was moved in arrest of Judgment that the custom was not good because it was unreasonable for here the Tenant offended and the under-tenant is punished for it which is against all reason that one should offend and another should be punished for it Besides the under-tenant here is a stranger and the custom shall never extend to a stranger and therefore the custom to punish a stranger who is not a Tenant of the Mannor is a void custom Further it was said that the amercement properly falls upon the person and therefore being personal it cannot be charged upon the under-tenant But notwithstanding all these Objections it was resolved by all the Justices upon solemn debate that the custom was good and therefore that the avowant should have Judgment Justice Mallet custom si aliqua defalta fuerit in reparatione to amerce the tenant and to distrein averia sua vel averia subtenentis levant and coucbant upon the customary tenement is a good custom I agree that a custom cannot extend to a stranger who is not within the Mannor and therewith agreeth 3 Eliz. Dyer 194. b. pl. 57. Davis Rep. 33. a. 21 H. 6. and many other Books but the matter 〈◊〉 is whether the Plaintiff be a stranger or not and I conceive that he is no stranger but a good customary tenant and he shall have any benefit or priviledge that a customary tenant shall have although he holdeth but for one year and by the same reason that he shall enjoy the priviledge of a customary tenant he shall undergo the charge for Qui sâ—ntit commoduin sentire debeâ— â—nus and by the general custom of England every Copyholder may make a Lease for one year as is resolved in the 4 Rep. 26. â— and it is good and if so then the Plaintiff here cometh in by custom and is no stranger but a good customary tenant and therefore the custom may well extend to him as there is Dominus pro tempore so there is tenens pro tempore and such is the Plaintiff here and he held that the wife that â—ath her widows estate according to the custom of the Mannor is a good customary tenant A woman Copyholder for life where the custom is that the husband shall be tenant by the curtesie dieth I hold the husband in that case a good customary tenant In Gloucester where this Land is there is a custom that Executors shall have the profits for a year and I conceive them good customary tenants Besides this under-tenant here is distrainable by the Lord for the rents and services reserved by the Lord or otherwise
the Statute to prove that the Plaintiff cannot plead this plea the words of which are That the Plaintiffs shall have such Pleas and Aid-prayers as at the Common Law and if the Plaintiff could have pleaded this Plea by the Statute the Statute would not have enacted that there should be the like Aid-prayers as at the Common Law for if the Plaintiff might plead this plea then there need not any Aid-prayer and as at the Common Law no Aid-prayer was grantable of a stranger to the avowry so neither is it so now and to prove that he cited 27 H. 8. 4. 19 Eliz. New Entries 598. 26 H. 8. 5. against the Institutes 312. a. Besides the Statute gives the like pleas as at the Common Law and therefore no new pleas and that caused me to give those reasons before at the Common Law and if this should be suffered every wrangler by putting in of his cattle should put the Lord to shew his title which would be a great prejudice to him The Statute of 25 E. 3. c. 7. enables the possessor to plead to the title of the Patronage and that it is not till induction if it be against a Common person which he ought to shew otherwise he is not inabled to plead to the title as it is in the 7 Rep. 26. a Dyer fol. 1. b. But note there the Statute enables him to plead to the title which is not so in our Case the general words of the Statute of West 2. have always received construction at the Common Law as appeareth by 18 E. 3. 3. 10. 22 E. 3. 2. 9 Rep. Bucknells case and 11 Rep. 62 63. there you may see many Cases cited which have the like words of reference to the Common Law as the Statute in that Case and there always they have received construction by the common Law the Authorities cited before against me are not against me for they say that the Plaintiff after this Statute may have any answer which is sufficient so clearly by these authorities the answer ought to be sufficient and that is the question in our Case Whether the answer be sufficient or no which as I have argued it is not because the Plaintiff is not enabled to take this traverse by the Common Law and the Statute doth not give any other Plea than at the Common Law 26 H. 8. 6. is express in the point That the Plaintiff being a stranger is not enabled by this Statute to meddle with the tenure wherefore I conceive that the Plaintiff is not a person sufficient within the Statute to take this traverse without taking some estate upon him as in see for life or years c. But for the latter point admitting that the Plaintiff were enabled by the Statute to take this traverse yet I hold clearly that as this case is he hath not pursued the form of the common Law in the taking of it and I agree the rule that the Plantiff cannot traverse the seism without admitting of a tenure and therefore the traverse here is not good because he takes all the tenure by protestation Besides I agree that traverse of seism generally is not good 9 Rep. Bucknells case and I agree that traverse of seism per manus is not good without confessing the tenure for part and here he takes all the tenure by protestation and therefore not good 18 E. 2. Fitz. Avowry 217. is express in the point that the traverse is not good Wherefore I conclude that Judgment ought to be given for the avowant Justice Crawley that Judgment ought to be given for the avowant he held clearly that the avowry is within the Statute and that being within the Statute the Plaintiff is enabled to take this traverse and that he grounded upon the Books of 34. H. 8. Br. Avowry 113. 24. H. 4. 20. 9 Rep. 36. and Hobarts Rep. 129. Brown and Goldsmiths Case Then he being inabled by this Statute to take this plea as a very tenant the Question is Whether the Traverse here per manus be good or not and he held not but he ought to have traversed the tenure as this Case is that the traverse of the seism per manus generally is not good I ground me upon the 9 Rep. Bucknells Case 35. a. and I agree the third rule there put that Ne unque seisie per manus is a good plea but that must be intended where the Plaintiff confesseth part of the tenure which he hath not done in this Case as it appeareth by the fourth rule there taken which is an exception out of the precedent rule upon which I ground my opinion and therefore the traverse here is not good Besides Homage and Fealty are not within the Statute of Limitations and therefore not traversable and if it should be permitted the rule in Bevills Case 4. Rep. 11 12. and Com. 93. Woodlands Case which resolve that they are not traversable should be by this means quite defeated Further in this Case the fealty only is in demand and the Plaintiff hath traversed the seism of the rent as well as of the fealty which is not good I agree the Book in the 9 Rep. Bucknells Case fol. 35. that seism is not traversable but only for that for which the avowry is made if not that seism be alledged of a superior service for which the avowry is not which by the Law is seism of the Inferiour service with which agrees 26 H. 8. 1. 21 E. 4. 64. But in our Case seism is not alledged of a superiour service for which the avowry is not made but of an inferiour viz. of a rent which is inferiour to fealty as the Books are of 21 E. 3. 52. Avowry 115. and 19 E. 4. 224. and which of right ought to be so unless a man esteem and value his money above his conscience and therefore the traverse of the rent which is inferior service and not in demand is not good Besides you cannot traverse the seism of the fealty without the traverse of the seism of the rent because the seism of rent is the seism of fealty and the rent is not here in demand and therefore not traversable and therefore you ought to have traversed the tenure for although it be said that rent which is annual is inferiour to all other services 4 Rep. 9. a. yet it is resolved that the seism of rent is seism of all other services further I conceive that if you avow for one thing you need not to alledge seism of other services 24 E. 3. 17. 50. seemeth to cross the other authorities before cited but I believe the latter authorities Wherefore I conclude that Judgment ought to be given for the avowant Bankes Chief Justice I conceive that it is a plain avowry upon the Statute and therefore I need not to argue it here are two Questions only The first Whether this Plaintiff who is a stranger be enabled by the Statute of 21 H. 8. to plead