Beckman v MAPLESDEN a note of the argument of counsel in this case be in No of  the Ayscough ms in the British museum it be decide in Michaelmas term car ill  hark ms No fol and No fol the defendant be mayor of Maidstone in a Tr car rot  the law require the same measure see a short note on the late discussion upon  a uniformity of weight and measure in appendix d b for the same kind of  commodity the king standard or wine standard be not the rule for all commodity  except by analogy and proportion the constant universal practice of the  country take notice of and approve by the statute themselves have allow  different measure accord totbe different nature of the thing to be measure in  a action of trover and conversion for take away certain pot and thirty pound  weight of pewter pot metal the special verdict find that the plaintiff be  possess of the pot in the declaration and so find the special matter touch  they but they say nothing as to the thirty pound weight of pewter pot metal  neither find the plaintiff possess or not possess or the defendant guilty or  not guilty of the conversion this omission vitiate the verdict although the  conclusion be special inasmuch as the conclusion be ground on the special  matter which extend not to the metal and this be not help by the statute of h  c of Jeofayles that statute after issue try aid negligence or default of the  party their counsel or atorneys but not the verdict or fault of the juror  Bridgman oh a action of trover and conversion be bring against gervase  Maplesden by Gabriel Beckman for one pewter gallon pot one pewter quart pot  one pewter pottle pot one pewter pint pot ib weight of pewter pot metal and ib  weight of other pewter metal call lie to the value of S ad damnum l upon not  guilty plead a special verdict be find that that October the plaintiff at  Maidstone be possess of the several potsNo mention of pewter metal note in the  margin of the manuscript c in the declaration and that the defendant the same  day and year be mayor of the town and parish of Maidstone and clerk of the  market there and that at the court of the clerk of the market hold there for  the say town and parish the say that day of October before the say defendant  then mayor the jury then swear to inquire of the defect of weight and measure  do present that certain pewter measure videlicet a measure call a gallon pot  another measure call a pottle pot another measure call a quart pot and another  measure call a pint pot not find that they be the same pot as in the  declaration be the Bridgman oh er p measure of the plaintiff and by he use  common in the sale of distil water be several defective in measure and not  accord to the standard and the jury upon the special verdict do further find  that at the say court of the clerk of the market for the say parish and town  of Maidstone the say that day of October the say pot be try not find how or by  who try nor do the jury find it so but only that they be of the bigness of  wine measure note in the margin of the manuscript c in the say court of the  clerk of the market and there find to contain less than the standard by virtue  of the statute deliver out of the record of the exchequer and keep in the town  of Maidstone aforesaid for the whole county of ken and that thereupon the  defendant be then mayor of the say town of Maidstone in the say court of clerk  of the market do seize the say pot as forfeit and do break the say pot and  destroy they accord to the form of the statute h in such case make and provide  and they further find that the say pot be of the bigness of the several  measure use for the sale of wine and be worth S but whether the standard  measure for retail wine and the standard measure for retail ale be and of  right ought to be one and the same measure or diverse the jury know not and  therefore pray the advice and consideration Bridgman oh of the court and if  the court shall think that the standard measure for retail wine and the  standard measure for retail ale be not nor of right ought to be one and the  same measure but diverse then they find that the defendant be guilty and  assess for damage S and for cost S and if the court shall be of opinion that  the standard measure for retail wine and the standard measure for retail ale  be and of right ought to be one and the same measure and not diverse then they  find the defendant not guilty in this case there be two thing to be consider  the matter in law intend by this verdict and the sufficiency or insufficiency  of the verdict itself as to the bring in question of this matter in law the  matter in law be but this whether by the law the measure that be to say gallon  pottle quart and pint by which wine be by law to be sell ought to be of the  same content and bigness as the gallon pottle quart and pint by which ale be  to be sell but to usher in this question two thing be to be suppose as imply  in the verdict the one that distil water be to be sell by retail by the same  measure by which wine be to be retail and this I take to be supply well enough  by reason of the conclusion of the special verdict for that all thing  necessary to it be to be intend and supply but that whereof the doubt be the  second be this that the law suppose there be a standard measure or standard  measure for wine and ale for so the question upon the verdict be whether the  standard measure for retail of wine and of ale be and of right ought to be the  same measure to begin then with the matter in law the question be whether the  standard measure for retail of wine and ale videlicet the gallon pottle quart  and pint ought to be the same as the verdict be find it be whether the  standard measure for retail wine and ale be and ought to be the same the first  property be questioning fact whether they be the same the second be  questioning law whether they ought to be the same and ad questionem fact non  respondent judge but as this case be I think the conclusion of the jury in the  special verdict to be well enough for the question be not pure whether the  measure for retail wine and ale be the same though perhaps also they may be  well enough but whether the standard measure for retail c be the same now the  word standard measure I conceive have a double sense proper they signify a  particular measure appoint by law accord to which other measure be make  Bridgman oh and accord to the proportion and content whereof such thing be to  be sell by measure of these it appear there be two sort the king standard  measure which be ancient keep in the exchequer or the treasury as appear by  the statute h c though I find since many of they have be remove into the tower  note in the handwriting of the original manuscript d by that statute it also  appear that the same standard measure as to the gallon and bushel which alone  be provide for by the statute and h be not right but misguide the king and  parliament in the Bridgman oh er p measure make by the Act of the h and no  wonder for the denaiffis the English penny by the say old statute of h and e  be the foundation of our measure which denarius then be and so it be in king  ethelred time the twenty part of the Troy ounce under Edward it come to be  diminish to the twentysixth part under r to the thirtysecond part in Edward  the four be time to the forty part and so it continue at the time of the make  that stat h as be observe by Mr grave in his denarius fol and appear by the  old statute e h c and other statute and now sixtytwo go to a ounce but be it  for that or for what other reason it appear the standard of h be not in the  edition of the treatise of greaves on the denarius in his work by birch he go  on to say under h stat h at first it be the forty then the fortyfifth  afterward sixty penny be coin out of the ounce in the second year of queen  Elizabeth and during her reign sixtytwo see appendix e for a remarkable note  on our ancient weight and measure preserve in the cotton library e right the  king do make or at least enact to be make a new standard of a bushel and a  gallon to remain in his treasury for ever and do cause the former measure to  be destroy beside the king standard measure there be other measure call  standard measure which be make and allow in particular city and other place  agree with the content of the king standard in the exchequer as common measure  these by the statute of h and h be make of brass and size accord to the bushel  and gallon so now make for the exchequer and mark with the letter h and a  crown and these be also call the king standard for weight and measure by the  statute h and accord to these by that statute there be power give to make sign  and print like weight and measure to other require the same in the second  sense of these word standard measure I conceive there be not mean any  particular single individual measure but the content a rule agreeable to which  all measure be to be make the assize proportion or analogy whereunto Bridgman  oh all such kind of thing as be proper to be measure be to be measure as when  the statute say sit One measure per totan England it can be understand of the  mechanical part the instrument which we call the bushel gallon or measure one  such measure can serve for all England but it be to be understand of the rule  the content or proportion of the bushel gallon or other measure by which thing  be to be measure and accord to which proportion all the measure of the bushel  gallon or the like which be the mechanical part of the vessel which we use in  measure be to be make and in that sense the standard measure be the content or  quantity of those measure which the law have appoint and allow in this sense  the standard measure I take it be that which be in the statute e I in the  edition of the statute late print by authority of parliament it be not enter  either as e or e but in vol I p under the title of assisa de weight et  mensuris among the statute of uncertain date f in ranks pro measure in some  book it be print among the statute make e videlicet a English penny which be  call the sterling round without clip shall weigh thirtytwo grain of wheat well  dry and gather out of the middle of the ear and twenty penny make one ounce  and twelve ounce one pound and eight pound make a gallon of wine and eight  gallon of wine make a bushel of London which be the eight part of a quarter  which statute be but ail affirmance of the law before that time as appear  express by the statute h entitle assisa parish et kind of beer in the  parliamentary edition of the statute this be print among the statute of  uncertain date vol I p g which be in the very same word as the in ranks pro  measure e and there it be say to have be the assize in the time of the  progenitor of king Henry III and be exemplify by Henry III at the request of  the baker of Coventry the standard measure remain in the exchequer vary from  this rule or ordinance of h III and e I the statute h VII c reserve this  assize and enact that the measure of a bushel contain eight gallon of wheat  and that every gallon contain eight pound of wheat of Troy weight and every  pound contain twelve ounce of Troy weight and every ounce contain twenty  starling and every sterling be of the weight Bridgman oh er p of thirtytwo  corn of wheat which grow in the amid of the ear of wheat accord to the old law  of this land so that in this sense I conceive the standard measure be that  assize or rule which the law allow for bushel gallon and other measure in this  latter sense I conceive Bridgman oh the question put by the juror whether the  standard measure for retail wine and ale be the same be to be intend for that  in the other sense the question whether there be two sort of standard measure  for wine and ale in the treasury or whether two sort of standard measure for  wine and ale at Maidstone or other the place appoint for standard  measures this be not to be determine by the court but be a enquiry of fact  though I shall have occasion to say something concern the several standard in  this sense also but the question or doubt of the jury be to be take in this  other sense that be whether the rule or canon for the proportion or assize  measure of wine and ale be and ought to be the same in this sense it signify  the same thing to say the standard measure for wine and ale be thus and the  standard measure for wine and ale ought to be thus the question be whole de  canon of the rule or law by which such thing as wine and ale be to be measure  so that the conclusion of the jury as to this matter be well enough I come to  the point of law intend by the verdict whether by law the measure by which ale  or beer be to be retail ought to be of one content or bigness and the measure  by which wine or distil water be to be retail ought to be of another that be a  lesser content and I conceive the ale or beer gallon pottle quart and pint be  by law great than the wine gallon pottle quart and pint the principal argument  that have be insist on against this opinion be that great Charta c and the  stat car c and general all the statute concern measure do enact that there  ought to be but one measure per totan England the statute of car be that from  thenceforth there shall be but one weight one measure and one yard accord to  the standard of the exchequer throughout all the realm as well in place  privilege as without any usage or custom to the contrary notwithstanding and  some other of the statute also have negative word and diverse case have be put  that no custom can prevail against a negative statute and hence it be infer  that the measure for ale and wine that be the gallon for ale and the gallon  for wine and so the pottle quart and pint be to be the same for else it be not  One measure per totan England to strengthen this opinion there may be add  several authority though not mention at the bar crompton justice of peace fol  b in these word notam and Popham chief justice dit and Le measure de vin et  ale serra tout un Bridgman oh et and issint ad etre agree per less justice  videlicet accordant all standard deal exchequer and it be very true there be  such a resolution of all the judge in the year concern Salisbury a copy of  which resolution extract out of this register at Salisbury I must own with  many thank to have receive from my brother hide recorder there it be this  primo maii at the star Chamber in a controversy grow between the mayor of the  city of new Sarum in the county of wilts and one Robert Holmes vintner and  other vintner of that city concern measure S for wine by the say vintner of  late alter and use within the say city and draw to a less content than by the  law of this realm they ought to be out of which controversy there grow these  question follow saint whether any measure by the law of the realm ought to be  use within the same city which shall not first be view and allow by the mayor  of the say city for the time be dly whether the measure for wine and ale ought  to be all one for the content and not diverse by the law of the realm and  ought to be sell by the content of the measure and not by weight and dly  whether any wine or ale ought to be sell by a measure other than such as be to  be warrant and do agree with the standard of her majesty exchequer all which  question by the practice and device of the say vintner be make very doubtful  it please the lord of the Council to commit they to the decision of the two  chief justice and judge of the realm and the rest of her majesty learned  counsel who by letter be require to examine the controversy and to certify  their opinion thereof and of the say question accord to the true sense and  construction of the law by virtue whereof they have assemble themselves  together and deliberate and at large hear the allegation objection and answer  of the Bridgman oh er p party by their learned counsel propound and debate on  both side this day their opinion and judgement upon the say controversy and  question be deliver and report to the lord and other of the privycouncil in  the star Chamber by sir Christopher wary knight Lord chief justice of her  majesty bench and sir Edmond Anderson knight Lord chief justice of the common  plea as well for themselves as for the residue of the say justice judge and  learned counsel as follow saint that no measure ought by the law of the realm  to be use within the say city except the same be first Bridgman oh view and  allow by the mayor of the same city for the time be dly that the measure for  wine and ale be and ought to be all one for the content of the measure and not  diverse and to be sell by the content of the measure and not by weight as by  the say Holmes and the vintner be frivolous pretend and dly that neither wine  nor ale ought to be sell by any measure other than such as be to be warrant  and do agree with the standard in her majesty exchequer the editor be indebt  to the kindness of the present deputy recorder of Salisbury Mr Tinney for a  accurate reference to the book in which this case may be find it be keep in  the councilhouse at Salisbury and letter on the back leger c d the passage in  the text be in fol b it form part of a long entry entitle in the margin the  copy of the Council order and letter as touch the vintner the entry of the  order of the privycouncil end with the follow note  This copy agree with the  original remain of record in the register of counsel thomas will g but  notwithstanding all this I hope I shall give satisfaction to other as I have  to myself that this opinion be mistake be ground upon a wrong exposition of  these word sit One measure et One pondus per totan England I conceive the word  have another exposition and meaning there shall be but one measure throughout  England that be to say for wine there shall be but one gallon not one sort at  London and another at Bristol and another at York and so for corn and other  thing there shall not be several sort of measure in several part of the realm  for the same kind of commodity or merchandise but not that all kind of thing  that be to be measure shall be measure by the same kind of gallon or other  measure not that wine and corn and beer or ale shall have the same measure and  that this ought to be the meaning and exposition of the statute appear saint  from the nature of the thing that be measure they be such as do require a  difference even in the proportion take the same gallon and put wine into it it  will be of one content put corn into it it will hold proportionable less in  that room for it lie hollow and put ale or other liquor that will froth or  overflow when it have stand awhile there will be still less so that fill one  gallon with ale and another of the same content with wine there will be more  wine in the gallon than ale proportionable and so corn and dry thing lie  hollow in the measure till they be shake will not fill up the measure as wine  will dly the practice and usage at all time have be accord to have different  gallon the wine gallon whereby Bridgman oh such thing as wine and other liquor  be measure the ale or beer gallon and the corn gallon and other measure have  differ in their content it be so in London it be so all England over and if  the defendant here have do equal justice he must have use the vintner pottle  quart and pint as he do the distiller it can be suppose that man will offend  against the law barefaced and in defiance of the law by a universal conspiracy  buy and sell direct contrary to act of parliament from time to time it be say  the whole Catholic church can err in practical fundamental and certain the  whole nation can err against the law for what make the law of the land but  universal custom and practice and universal practice be the best expounder of  the law common usage in case of measure have expound statute if a man sell so  many acre of wood it shall be measure accord to the usage of the country e   e  I in the parliamentary edition this be among the statute of uncertain date Vol  I p h notwithstanding the statute de Terris mensurandis and so a recovery in  the shire of so many acre shall be take accord to the shire acre and so it be  agree in the case Bridgman oh er p cro Minge and eales case if a statute  mentionsmiles as the statute Elizabeth c provide that none shall employ for  coal or fuel for make iron any wood grow within twentytwo mile of London nor  within four mile of rye c the mile be to be account accord to the usual way  and common usage and not as a bird or a arrow may fly but if a bind be  condition if the ground where the wood stand be four mile from rye there it  shall be take accord to the law and a geometrical computation shall be  sufficient but statute shall be expound accord to usage and so shall grant if  a man grant a barrel or hogshead of beer to another the beer passes and not  the vessel but if a man get a hogshead or tun of wine the vessel itself passes  for usage and practice expound the word indeed the statute which command there  shall be but one measure be but in affirmance of the commonlaw which say so  much and be to be expound as usage and practice have expound the commonlaw the  mischief as to the measure be which be principal provide against by the  statute h VII and some other statute that some sell corn and the like thing by  the Winchester bushel other by other measure whereby hadgers and other cozen  both buyer and seller this mischief be endeavour to be remedy and it be a  mischief at this day as he say of astrologians hoc Bridgman oh genus man  always not to suffer always to hold back so I may say of these different kind  of measure they will be always forbid always retain but the diversity of  measure accord to the nature of the thing measure so there be the same rule  all over England be no mischief at all and the commonlaw in this be well  explain by our own historian who mention the time before great Charta old  print vide etian Matt par year poor p of the edition of William wats these  reference be in the handwriting of Mr umfreville wilk hoveden mention assisa  de measure facea per richardum king England year agreed price be say he quod  all men measure all England to be the same magnitude tam de grain how de pulse  et rebus similar things measure etian vines in a vineyard in rows et kind of  beer et all in a body fluid sit the same magnitude secundum difference fluid  weight et Proserpine et the other pesiae to be the same magnitude intoto royal  power secundum difference mercaturar it appear the measure for corn be one for  ale another and for wine another secundum difference fluid and for weight  secundum difference mercaturar the same statute that appoint there shall be  but One measure per totan England say also there shall be but One pondus per  totum England yet it be clear some thing be weigh by Troy weight other by  avoidupois Crompton jurisdiction the Troy weight contain twelve ounce and no  more and by it pearl precious stone electuary gold silver and bread be to be  weigh and the avoidupois contain sixteen ounce by which other thing be to be  weigh so we see the weight be secundum difference mercaturar and so it be for  ale and wine and other liquor they be several measure secundum difference  fluid the meaning in both case must be that the same kind of commodity shall  not be weigh or measure in one country by one kind of weight or measure and in  another part of the realm by another kind of weight or measure there shall be  the same pound for instance for wool all England over and so for other  merchandise and so there shall be the same measure as a gallon c for wine all  England over but not that the same kind of pound that be for wool be by Troy  weight shall be also for spice and other commodity which be to be weigh by  avoidupois and so for thing to be measure it be not that wet and dry thing  shall have one measure as the same gallon or the like nor of wet thing as wine  and ale that they shall have the same gallon the measure of ale and beer  inrespect of the foulness in work yeast and froth be big than that of wine  Bridgman oh Crompton in his jurisdiction of court b report edition that Mr  well clerk of the market for Staffordshire tell he that the ale quart shall be  great than the wine quart because ale will have much froth upon the top which  wine will not but the tankard for ale or beer though it be great than the wine  quart yet there shall be a neck in the tankard make to which the drink shall  be full and by that neck you shall know whether you have your just measure  which ought to agree with the wine quart and in the place before cite concern  the opinion of Popham and resolution of the judge that the measure of wine and  ale be the Bridgman oh er p same vide say he king nunc c it be alter for ale  and again repeat Mr well opinion so that even by that very book the measure of  ale and wine be not de facto the same but the meaning of the statute be that  there shall be but one measure for ale and beer and the like through England  one measure for corn one measure for wine through England as for the different  proportion of these I do not find they set down particular in our law book or  in the statute but as our law be comprehensive of all science and art andwe  make use of physician surgeon curtians grammarian and other and bear they when  the matter in law before we require it to inform our judgement so I have  consult with brewer and other as well mechanic artificer as artist in the  particular concern the different proportion of the measure of wine ale and  corn for accord to the rule of all these three all other thing be respective  admeasured the different proportion the great difference that exist among the  standard liquid and dry measure throughout the kingdom show the great  necessity there be for a complete equalisation accord to the law that at  present exist in England there be three different gallon for wine ale and corn  which be common reckon to contain two hundred and thirtyone cubic inch two  hundred and eightytwo cubic inch and two hundred and eiehtyeight cubic inch  and fourfifth respective there be no doubt however that a common gallon be  original use for liquid of all kind as well as for grain although the above  difference have obtain in consequence of cause which at this distance of time  can be complete ascertain the commissioner in their last report recommend I  that the ale and corn gallon be restore to their original equality by take for  the statutable common gallon of the British empire a mean value such that a  gallon of common water may weigh ten pound avoirdupois in ordinary  circumstance its content be near inch Wallace on weight and measure Glasgow  great Charta point out the quarter of London as the only standard for measure  and weight of that time but we be leave to guess of what measure or weight it  be the quarter part  Dr kelly metrology p our view of the custom of the  country with respect to weight and measure in and before the reign of Henry  the three will be find to be illustrate by the beforemention d very curious  note from the cotton ms print in the appendix e king as I understand of which  be these Bridgman oh the measure of the gallon for wine contain two hundred  and thirtyone cubical inch the measure of dry thing as corn c about two  hundred and seventytwo inch and the measure for beer and ale about two hundred  and eightyeight inch and three quarter the proportion between these three  gallon be and so the proportion between the wine and ale gallon be as four to  five and so the ale or beer bottle quart or pint be a five part big than the  wine gallon c the gallon and bushel which be b that the statute of h VII which  be the measure by the statute appoint to be in the custody of the mayor of  Maidstone be make only accord to the assize for dry thing as corn and do  neither agree with the measure of wine which be less nor of ale which be more  and as I have be inform at the same time that this standard bushel and gallon  as make there be also make the common bushel which be at this day in the  exchequer and be big than the standard bushel for corn by oneeighth part and  hold eight gallon accord to two hundred and eightyeight and three quarter  cubical inch which full answer the proportion of the ale gallon from the wine  gallon to be five to four videlicet a five part more and also I have be inform  that there be a ale quart at this day in the exchequer which ale quart be take  notice of in the stat car c and of the excise S and be big than the wine quart  and as artist say contain inch which be the four part of cubical inch which be  the content of the ale gallon and it be call the ale measure or Winchester  measure and this ale quart in the exchequer be a five big than the wine quart  and a eighteenth part big than the corn quart which agree with the exchequer  gallon make h VII and four ale exchequer quart overrun that exchequer gallon  which be the same gallon which be at Maidstone almost half a pint to satisfy  myself in point of fact I go into the treasury of the receipt of the exchequer  and there beside several break measure I find several weight of Troy and  avoirdupois in metal which they tell I be exact agreeable with those in the  Bridgman oh er p tower and I suppose also they have or shall have assay at the  trial of the pix or inquiry by a jury of goldsmith before certain member of  privycouncil in April into the purity of money coin at the mint there be  produce by the proper officer of the exchequer a trial piece of gold which be  deposit there in October as of true standard of twentytwo part gold and two  part alloy this piece bear the guinea impression of king James the second on  one of its I corner it be of considerable weight when first deposit but it be  now much reduce in size from the number of assay piece take from it by the pix  jury within the last one hundred and thirtyfour year account of the trial of  the pix gentleman magazine for may l piece of gold and silver but as to  measure Bridgman oh I find none of the time of king h but only one bushel but  there be another brass bushel of Elizabeth and a brass gallon quart and pint  what the content of the say bushel of the time of h be I know not otherwise  than as I have be inform before but the officer there tell I that the quart  and pint there do not agree in proportion with the bushel of Eliz and they  appear to I to be large that the quart there be a full ale quart and they  produce to I a extract of a letter by Mr Arthur agard the that of June concern  the assay of gold and silver to the then Lord treasurer wherein be do write  inter alian that there be then no standard of avoirdupois weight nor yet Troy  weight nor measure of bushel gallon quart elnes or yard in her majesty  treasury accord as the statute do limit but that there be old weight and  measure which be new find will make very good new one and this complaint I  suppose be the occasion of the new weight and measure Elizabeth by which it  appear there be not in any such standard in the exchequer as the judge  conceive and that in Elizabeth there be in the exchequer standard of several  sort the ale quart and so proportionable that gallon exceed the gallon there  which be for corn which measure though then make in Elizabeth yet I suppose be  warrant by those which be in the tower and other place and though Mr Crompton  say that the ale quart be allow by James c he be mistake for the quart be  before that time in the exchequer and the statute James speak of the ale quart  or beer quart as of a thing the different content whereof be usual know and  the content whereof be general know and without any statute to set forth the  assize of it be a strong evidence of the law quod ubique quod always quod ab  omnibus be a rule for a great matter than those measure of ale and corn and  wine but upon all this I infer that there be different measure by law and by  the late Act for prevent fraud and regulate abuse in his majesty custom there  be at the end of the Act a imposition upon every gallon of salt import out of  Scotland of Winchester measure a halfpenny and accord to these different  measure it be observe by Bridgman oh Mr greaves in his treatise of denarius  that there be three standard in this nation the standard in the exchequer at  the tower and at Winchester and I be inform the standard at the tower for the  gallow agree with the wine gallon the standard of Winchester agree with the  ale gallon and the standard gallon of the exchequer agree with the corn gallon  so that I conclude from hence by the commonlaw and common practice expound it  the measure of wine and of ale or beer be differ and that the statute which  mention there shall be but one measure throughout England be to be understand  that there shall be but one measure for the same species as there shall be but  one kind of measure for wine throughout England one kind of measure for corn  and one kind of measure for ale and beer and so of all other thing of like  kind and last this difference appear by the statute themselves great Charta c  seem to I express in it and give to I the first hint of the difference which I  now take it be say there one measure of wine shall be throughout the realm and  one measure of ale and one measure of corn that be to say the quarter of  London and it shall be of weight as it shall be of measure the word measure of  wine one measure of ale and one measure of corn I suppose be plain to mean not  one and the same measure for wine ale and corn but one measure for wine  another for ale and a three for corn but to be one for wine throughout all  England and so for the rest as it be of weight not only weigh Bridgman oh er p  by Troy weight but also by avoirdupois weight and accord to this difference  all the other statute notwithstanding the general word of they be to be  understand so in ranks pro measure e I that I mention before express a wine  gallon not a gallon general but of wine eighty pound make a gallon of wine  therefore there be gallon beside wine gallon and the statute James c cite  before provide that a alehousekeeper shall not utter less than one full ale  quart it be not simple a quart but a ale quart of the best beer or ale for a  penny therefore there be other quart than ale quart and consequent other  gallon than ale gallon and now the ale measure be know general by that name  and be sometime call as I say before Winchester measure and the common brewer  be not to sell beer or ale by the statute h c in any barrel or other vessel  other than such as shall be mark by the cooper now that statute h c be  observable to this point there it be say Bridgman oh that the barrel for beer  to be make by the cooper shall contain thirtysix gallon and every barrel of  ale thirtytwo gallon of the king standard gallon that vessel for soap shall be  accord to the rate content weight and assize of old time use that be to say  every barrel to contain thirtytwo gallon and to be in weight twentysix pound  and this be accord to the wine measure for soap be always so measure but it  provide that every cooper who shall make any ale vessel mention in the Act  shall make it accord to the assize specify in the treatise call agreement  a measuring a instrument entitle treaty de weight et mensuris be print in cays  edition as of e from ms Cott Claudius d two fol in Berthelets sencundam pars  Vet stat be a instrument entitle agreement de weight without any date the copy  in the text be full than either note to the assize of weight and measure print  among the statute of uncertain date in the late edition by authority of  parliament Vol I p m that be to say every barrel for ale contain thirtytwo  gallon of the say assize as above of which eight gallon make the common bushel  to be use in this realm what be become of that treatise of agreement mensurar  if there be any such I can learn but upon it I conclude that the gallon  measure of ale be large than the wine gallon by the statute for it be express  that eight gallon make the common bushel which be the bushel I mention before  and be now in the exchequer and appear to be a five part more than the wine  gallon as be affirm by artist in old great Charta in ranks pro measure print  as make e be call agreement mensurar and this be also manifest by the common  practice of the cooper ever since that statute for by that statute h the  warden of the cooper of London be to search view and gauge all manner of  vessel for ale beer and soap to be put to sale in London and within two mile  compass the scantling for beer and ale of the cooper and accord to which their  barrel be seal be a addition of a five to wine measure and the beer barrel  contain thirtysix gallon and the gallon contain two hundred and eightyeight  inch and three quarter which be the large measure and trial have be make upon  several occasion at CoopersHall of the dimension of a barrel as they seal they  for the brewer and accord to the standard deliver to they and it contain  thirtysix gallon each gallon contain two hundred and eightyeight inch and  three quarter and the statute Elizabeth c enact that no brewer shall sell any  beer or ale in any vessel bring from beyond sea in London before the Bridgman  oh same be lawful gauge and the true content set down upon the same by the  gallon appoint and allow for beer and ale accord to the standard by the master  and warden of the coopers  That statute take notice of the cooper standard and  of a gallon appoint and allow for beer and ale distinct from other gallon  allow for other thing so that I think it be manifest by the several standard  measure in the exchequer and elsewhere by the common practice and by the  statute themselves that the measure of wine corn and ale be by law different  and the gallon and bushel appoint by the statute h be to be take only for the  measure for corn and for such thing as be to be measure as corn and there be  great reason to send down such a gallon for corn into the country for that  statute of h renew the old standard measure which be the wine measure if the  proportion the corn gallon and the beer and ale gallon have be leave to the  country they will have mistake their proportion and therefore the Bridgman oh  er p statute h do not only take care to set right and revive the old standard  measure which be of wine but also for a right proportion measure for corn  which exceed that standard and the standard for the wine quart be and have be  keep at PewterersHall time out of mind In the bill bring into the house of  Commons in the last session see appendix d and e there be a provision for  recourse to he have to a less exact criterion for ordinary use to prevent  irregularity where the best standard shall not be of easy access n there be  one more objection may be raise to which I shall give a answer and that be by  the statute h it be enact that a barrel of beer shall contain thirtysix gallon  by the standard gallon and by the in ranks pro measure the standard gallon be  express the wine gallon and the statute car be there shall be but one measure  accord to the standard of the exchequer and therefore it be infer that beer  and ale be to be by the standard gallon and the standard gallon be the gallon  for wine as it appear express by the statute in ranks pro measure and several  other statute there be to the same purpose that all bushel peck pottle and  quart shall be accord to the king standard and so r c all the weight and  measure through the realm shall be accord to the standard this objection be in  part the same with the other which be make before and the same answer be  applicable to it but I further answer first that if it be so that the king  standard gallon Bridgman oh which be the wine gallon be to be the measure of  all commodity then the corn gallon which be big than that standard gallon  which be the gallon at Maidstone will be also against law and consequent the  break of the distiller gallon for not agree with the corn gallon be against  law but second admit by the meaning of the act of parliament car and the rest  that there be to be but one measure accord to the standard that be the king  standard proper so call that be the wine measure as in truth upon  consideration of diverse of the statute the latter seem to import and the  statute h c though it provide the corn gallon yet refer to that statute of e  and direct it to be make after the say assize I say admit this yet it must  bear this interpretation not that accord to a geometrical measure the measure  shall be as that very standard butthat accord to that standard by analogy and  proportion all other thing shall be measure secundum difference fluid et  mercaturar those thing who measure be as wine exact accord to the standard as  soap oil strong water cider honey c those thing who measure be as corn and  other dry thing in analogy and proportion to it as to and ale and beer in  analogy and proportion to it also videlicet as to and this assize be still  keep by tradition and practice particular among the cooper and as ex pede  Herculis by the rule of proportion by the proportion of the foot the statuary  can make the full image of Hercules so by reference to the king standard for  wine all other measure may be make and not that they shall agree exact in the  very same measure as a geometrical proportion and this appear in point of fact  for in truth as I say before the gallon and bushel by h be the corn measure  and differ from that standard measure to which it refer videlicet that every  gallon contain eight pound of wheat of Troy weight for a pound of wheat of  Troy weight exact fill the wine pint and not the corn pint which hold more the  exchequer gallon by h hold above nine pound of Troy weight and so also  although the statute h express mention the barrel of beer or ale to be so many  gallon of the king standard gallon yet it refer to the assize in the treatise  de composition a measuring of which eight gallon make the common bushel now  the common bushel and the standard bushel not be the same as I say before it  be impossible to reconcile the statute to themselves and to common practice  but by this interpretation that the king standard so proper call the wine  measure as it be settle Bridgman oh by e and h shall be the measure by analogy  and proportion whereunto all other thing measurable shall be measure secundum  assisam et difference fluid et mercaturar and not secundum capacity the very  same measure indeed and by a geometrical proportion and just so it be for  weight there ought to be but One pondus that be the Troy weight but yet we  measure other thing by avoirdupois because of the garble Bridgman oh er p and  filth that be in they which if it be abstract will in effect be Troy weight as  the hollowness in dry thing upon measure of they the froth yeast and work in  ale and beerbeing consider and abstract the measure will in effect be the same  with the wine measure and so it be also for a yard the statute car say there  shall be but one yard yet stuff be measure by the ell because they be apt to  shrink and so be measure by the ell which be accord to the rule of proportion  as five to four by estimation and for my own opinion I conceive that old  standard for measure find upon the denarius or penny be the ground whereto the  mathematician proportion their weight and in the composition of that standard  there be also the ounce which by the statute h be say to be after the Troy  weight and it be well say by Mr greaves fol as by measure weight may be  preserve so on the contrary by weight measure may be restore if it be so that  it be the standard for weight as well as measure it necessary follow that the  same be the standard for both weight and measure it be to be understand only  from analogy and proportion I have one thing more to observe the statute of h  c to which h refer be express that that statute shall not extend to sell or  buy by water measure within the shipboard and enact that the water measure  shall only contain five peck after the say standard thereby make raze and  strike and the statute car c express provide that such measure as be common  call water measure in any port maritime town or other place shall be still use  and continue as former the same have be any thing in this statute contain to  the contrary notwithstanding the statute of h limit the water measure to  shipboard but car extend to any other place now this water measure thus raze  and strike appear to be a five peck more than the wine measure so be h and be  the very same which be for beer and ale the ale gallon be a five part more  than the wine gallon and so be express allow by the statute and the common  practice ten gallon of Bridgman oh wine measure make eight gallon of water  measure which be the common bushel or Winchester bushel use throughout the  realm on the water or shipboard which measure I conceive for liquid may be use  by virtue of the statute of car in any place as for the objection make from  the resolution of the judge in the year give these answer to it that it be a  extrajudicial opinion and though I must give reverence to the opinion of the  judge yet I make a difference between case adjudge upon debate and have  counsel on both side and resolution upon a case report or refer to they second  that the principal matter refer there be whether wine must be sell by the  content of the measure or by weight as the Salisbury man pretend in which  point the resolution of the judge be clear accord to the law so that their  other resolution be but obiter and ex abundant but three I say those  resolution be ground upon mistake in part namely they conceive there be but  one standard in the exchequer and that the standard both for wine and ale both  which be mistake as I hope I have make appear first that the measure in the  exchequer as the ale quart the gallon and the two bushel there remain be  differ second that the wine measure be not there at all which be proper the  king standard and three I observe that this resolution be in and nine year  after Mr agard write to the Lord treasurer that in the treasury of the  exchequer they have neither bushel gallon quart else nor yard accord as the  statute do limit and therefore if that be true as I take it clear it be if he  mean the wine measure when the judge declare that neither wine nor ale ought  to be sell by any other measure than such as agree with the standard in the  exchequer they err in both for that measure be the corn measure be too big for  wine and too little for beer or ale and last I will encounter that resolution  with a great authority the Act of parliament car c S the Act for the excise  which though it be make since our case in question yet it be not only a enact  but a declare statute and a interpretation of the former and direction for the  future practice I conceive be a full resolution to the point in question the  word of it be these  For the avoid of all incertainty and dispute touch the  return make or to be make by Bridgman oh er p the gagers of any beer or ale be  it enact and declare by the authority aforesaid that every sixandthirty gallon  of beer take by the gage accord to the standard of we ale quart four whereof  shall make the gallon remain in Bridgman oh the custody of the chamberlain of  his majesty exchequer shall be reckon account and return by the gager for a  barrel of beer and every twoandthirty gallon of ale take by the gage accord to  the same standard shall be in like manner reckon account and return for a  barrel of ale and all other the liquor aforesaid accord to the wine gallon the  liquor aforesaid mention in the Act be very cider strong water distil  metheglin and the like which very word be also in the other Act car c for take  away the court of ware and purveyance and settle a revenue in lieu thereof out  of which Act you may observe first that there be a distinction between the ale  and the wine gallon allow by the statute second that the measure of the ale  gallon be to be accord to the ale quart in the exchequer which as I show  before be the great measure and great than that at Maidstone three that strong  water and distil water be to be sell not by the measure that beer and ale be  the ale gallon but by the wine gallon which be the point now doubt by the jury  and last that this be not only enact but declare so that upon the whole I  conceivefirst the law require the same measure for the same kind of species  second that the king standard or wine standard either be not the exemplar for  all or if it be it be only by analogy and proportion and that the constant  universal practice take notice of and approve by the statute themselves have  allow different measure accord to the different nature of the thing to be  measure and that be the best and safe exposition of the law which agree with  constant practice so that for the matter in law if it be well find by the  verdict I hold for the plaintiff but second I conceive this verdict be whole  insufficient and that a swearer male see to bear about in veredicto reddendo  as the entry be where a venire facias de to make new ought to issue and that  there ought to be a venire facias de to make new for that the case be the  action be a action of trover and conversion for take away a pewter gallon pot  a pewter quart pot a pewter pottle pot a pewter pint pot thirty pound weight  of pewter pot metal and thirty pound weight of other pewter metal call lie the  special verdict find that the plaintiff be possess of the several pot in the  declaration and so find the special matter as touch the pot but as to the  thirty pound weight of pewter and thirty pound weight of lie they say nothing  and neither find the plaintiff possess or not pos Bridgman oh sess or the  defendant guilty or not guilty of the conversion and though the conclusion be  special that if the standard measure for retail ale and wine be not the same  then that the defendant be guilty de to send forward infra content modus et  form as the plaintiff have declare yet this conclusion be ground upon the  special matter which extend not to the pot metal or lie and the court be to  judge upon the whole matter it be all one as if the verdict have find he  guilty for the pot by express word and as to the rest find nothing at all now  that have be often adjudge as you may see c c a and a great many authority  there cite if a verdict find part of the issue and find nothing for the  residue this be insuffecient for the whole because they have not try the whole  issue wherewith they be charge and he cite a case stat Elizabeth as a writ of  error between brace and the queen in the Excheunqer Chamber a information of  intrusion be bring against one for intrude into a message and one hundred acre  of land upon the general issue the jury find against the defendant for the  land but say nothing for the house this be insuffecient for the whole and the  reason in law of it be that they be being under oath et load ad reality de to  send forward to learn that be the whole to send forward and if judgement shall  be give only for part of that which be in issue and nothing find for the  residue the plaintiff must be put to a new original and the defendant to a  second vexation and may plead a new plea whereas if there be only a venire  facias de to make new the old original and plead do stand and as the come  require the plaintiff may be in pity or to take in hand pro fine whereas if  such a verdict shall stand good there shall neither be the on nor the other  Bridgman oh er p but the doubt be whether this be not bolpen by the statute of  h c of Jeofayles in a action of trespass for entry into one hundred acre of  land the defendant plead as to part and not to the residue and issue take and  verdict for that part for the plaintiff this be a discontinuance and some  opinion be that it be aid by the statute h and so be Gomersalls case cite   in  Heydons case in account of diverse receipt and parcel the defendant plead to  issue for all but one parcel and to that plead nothing this be agree be aid by  the statute of h after verdict because the statute be any discontinuance  notwithstanding and agreeable be Freeistons case Hobart and Cr Qy wats v king  cro James and see the case of Burgundy and Bartley below in this volume oh but  whether that statute extend Bridgman oh to such a discontinuance in not plead  or to a discontinuance for not continuance of process only may be a question  but our case be a fault in the verdict itself and not in the proceed before be  clear a different case and be not remedy by the statute of h which after issue  try aid negligence or default of the party their counsellor or atorneys but  aid not the verdict or fault of the juror which be the fault here the issue be  right and therefore a venire facias de to make new ought to issue and so it be  agree in brace case which I cite before which be Elizabeth after both the  statute of h and Elizabeth of Jeofayles there be several other fault in the  verdict as namely it be not find that the pot which be find defective be the  same pot which be in the declaration nor be it find that the pot be defective  or not accord to the standard but only that they be try in the court of the  clerk of the market and there find less than the standard at Maidstone the  jury find that they be of the bigness of wine measure but that the wine  measure be less than the standard they find not nor do they find that distil  water ought to be sell by the same measure as wine and some other defect there  be in the verdict but many of these be supply by the special conclusion but  the not give any verdict at all touch the pot metal and lie make the verdict  whole imperfect and for that cause a venire facias de to make new ought to be  award but although judgement can be give upon this verdict yet the court have  declare their opinion touch the matter in law I suppose upon a new trial the  justice of nisi prius will give direction to the jury for a general verdict  for the plaintiff if in the mean time the defendant do not give he  satisfaction