be livid or discolored wood and foster case replevin wood bring a replevin  against Humphrey foster and other and make his plaint of the take of one  thousand cattle foster plead non to take in hand and the other that the  property be in another upon which matter they be at issue and as unto the  first issue the case upon the evidence be that the late Lord Windsor be  possess of certain sheep and by his will devise they unto Elizabeth his  daughter for her advancement in marriage and of his will make his wife his  executrix and die his wife take to her husband one Puttenham who be thus  possess lease the say sheep with a farm for eleven year by indenture upon  which it be agree between the say party that the lessee shall keep so much of  the rend reserve upon the say lease to buy therewith so many cattle over so as  the whole stock oh f the say sheep upon the say farm shall amount to the  number of one thousand cattle and the lessee also covenant to yield and render  to the say Puttenham at the end of the say term one thousand sheep between two  year shear and four year shear afterward Puttenham by his deed give unto one a  who have marry the say Elizabeth the say one thousand cattle to have they  after the say term the term expire Puttenham sell and grant they unto wood who  bring they away with he and the say a pretend that the say sheep pass he by  the say grant of Puttenham during the say term seize they and the same be  noctanter as they be drive in the highway undemagna raising voice birth to be  between the say party the one charge the other with felony whereupon the  constable of the town where c suppose the say matter will grow to a outrage  seize the say cattle as felon good and afterward go to the house of the say  foster which be near unto the highway and ask his advice upon the matter but  he will not meddle therewith afterward one Perkins who have buy the say cattle  of the say a come to foster and show to he that the highway there be not  sufficient for pasturage of the say cattle until the say controversy be  determine and pray that the cattle be deliver to he the say Perkins to keep in  the mean time to who foster answer that if the say Perkins will find  sufficient surety to deliver back the cattle to he who have right that he will  be content the say Perkins shall take they whereupon the say Perkins be bind  to foster to that purpose and take away with he the say cattle and it be also  give in evidence that the servant of the say foster have seize the cattle for  the use of their master and by the clear opinion of the court upon the whole  matter show foster non to take in hand and accord to such direction of the  court the jury find that foster non to take in hand and as to the matter of  property the court be clear of opinion that the grant make by Puttenham of the  say cattle during Leonard er p the term be utter void for Puttenham during the  same term have not in the say cattle either a general or a special property  nor also after the term but if after the term expire the lessee will not  accord to his covenant deliver to Puttenham one thousand sheep then Puttenham  be put to his action of covenant for here the lessee be bind to deliver to  Puttenham at the end of the term not the same cattle which be lease but such a  number of sheep and the same ought to be between two year shear and four year  shear which can not be the sheep demise for they do exceed such degree before  the end of the say term and then the grant of Puttenham during the term be  mere void and then when after the term the lessee accord to the covenant  deliver to wood one thousand sheep he may well sell they to the plaintiff  Leonard and such be the opinion of the whole court and it be say by justice  Windham that if I let certain sheep to one for two year now upon that lease  somewhat remain in I but that can be proper say a property but rather the  possibility of a property which can be grant over see h e in the same plea it  be also hold that in a replevin where the plaint be of one thousand beast and  the defendant justify b reason of property upon which the party be at issue  now upon the evidence the defendant may surmise a lesser number of beast and  drive the plaintiff to prove a great number than that which the defendant have  confess upon the evidence notwithstanding that the dumber set down in the  plaint be by the plea of the defendant in modus admit and the lesser number  surmise and the contrary not prove shall go in mitigation of the damage and  the jury shall conform their verdict in the right of damage accord to the  proof of the number notwithstanding that the number set forth in the plaint be  not by the plea deny by the defendant and so it be put in ure in this case for  the plaint be of the take of one thousand cattle but the proof extend but to  eight hundred sixty five note also in the same plea it be hold that whereas  one chock be return upon several jury in two several court at Westminster and  both the jury be adjourn to one day now in which of the say two court the say  chock be swear be shall be discharge of his attendance at the other court the  same day Owen Rep Godbolt mich Elizabeth in the common plead