case roy versus the duke of beaufort June the bill be for relief against a  judgement on a bind in which the plaintiff be joint bind with his son in the  penalty of pound that the son shall not commit any trespass in the duke of  beauforts royalty by shoot hunt fish c except with the licence of the  gamekeeper or in company with a qualify person the son have catch two flounder  with a angle rod the bind be put in suit and judgement for the penalty the  gamekeeper brotherinlaw and another servant of the duke be ask the plaintiff  son to angle with they when he catch the two flounder and the verdict be find  mere on their evidence Lord Hardwicke decree the plaintiff shall be relieve  against the verdict and that the duke shall refund the pound recover on the  bind and the pound damage the bill be bring to be relieve against a judgement  obtain at law on a bind in the penalty of pound and likewise excessive damage  of forty pound and for a perpetual injunction the plaintiff be joint bind with  his son in a bind in the penalty of pound that the son shall not commit any  tres atkins pass in the duke be royalty by shoot hunt fish c unless with the  licence of the gamekeeper or in company with a qualify person the son  afterward have catch two flounder with a angle rod in the duke be royalty the  bind be put in suit against the plaintiff and judgement for the penalty two of  the duke be servant one of they brotherinlaw to mark the gamekeeper ask the  son of the plaintiff to go with they and divert himself with fish they angle  about two hour in a navigable river and catch two flounder the verdict be find  by the jury mere upon the evidence of these two servant the plaintiff his son  be dead have be oblige to pay the pound the cost of suit though the value of  the flounder be prove to be two penny only the bind be give in while the  plaintiff be under a prosecution and in custody before a justice of peace at  the information of mark the gamekeeper for carry a gun in the duke be manor  and for kill a dog belong to the duke it be not pretend that the plaintiff son  kill any game but that he carry a gun only mark take he before a justice of  peace that live fifteen mile from the place when there be several neighbour  justice within three mile when the plaintiff son be before the justice of  peace they threaten he with be entire ruin by the duke if he will not agree to  give this bind from the year till it do not appear that he ever be guilty of  any trespass and even after the two flounder be catch which be in no manner of  notice be take of it till when a information for a not have be try at  Winchester in which these very servant that decoy the son into this fish be  convict on the evidence of the plaintiff in this cause immediate after the  trial the suit be commence upon the bind atkins Lord chancellor the first  general question be whether the bind be obtain by oppression and by the  imposition of the duke of beauforts servant atkins er p second suppose there  be a evidence of such imposition whether the bind will be consider only as a  security that the son shall not poach for the future three whether a ill use  have be make of this bind as to the first head of relief oppression and  imposition I be of opinion there be no evidence of either which ought to  induce the court to relieve the plaintiff son appear to have be a person who  make a practice of carry a gun and likewise be warn several time by mark the  gamekeeper not to come into the duke be manor afterward mark be upon his  lawful business find that S young man with a gun in his hand and may have  justify seize the dog and though he shoot he it do not make any great  alteration because if any body have suffer the duke have who lose the benefit  of the dog which shall have be secure to his own use the carry a gun and shoot  the keeper dog in return for his own be kill be a sufficient justification of  mark for take the plaintiff son before a justice of peace as to the point of  take he before a justice of peace who live at the distance of fifteen mile it  be not a thing to be commend but however that do not prevent his have equal  jurisdiction as if he have live in the neighbourhood it appear beside that the  plaintiff son have more assistance at Winchester than he will have have in any  other part of the country for he have the recorder for his counsel and it be  very probable the gamekeeper have a eye to have counsel himself or he will not  have think of carry he so far No evidence have be attempt to be give of the  justice of peace misbehave in the affair on the contrary he be so favourable  as not to levy the penalty of five pound which the statute give against a  person carry a gun be unqualified nor be there any notice take of kill the  duke be dog and however trifle it may be call if such a thing have come before  I at nisi prius on the insolent behaviour of the person at the time he shoot  the dog and other circumstance I shall have make no scruple of direct very  considerable damage atkins as counsel appear to have be present the whole time  before the justice of peace though it be not say they advice the bind yet I  must presume they do as nothing be show to the contrary bind take for the  preservation of the game and to prevent poach be not only for the benefit of  lord of manor but even of the young person who enter into they as this sort of  idleness general lead they to worse consequence as to oppression if there have  be any illegal advantage take while he be in custody before the justice of  peace he may have be relieve at law and there be no occasion for a suit in  equity but there can be none re because his be before a justice of peace be  lawful nor be there any improper method use to draw he into the execute of  this bind in the common case of a warrant of attorney to confess judgement by  a person in custody if he have counsel present it will not be set aside for  duress where the imprisonment be legal see Nicholls v Nicholls ante vol though  there be no act of parliament which direct take bind in this particular case  yet there be statute which approve of it in similar case as for instance the  act that relate to the custom express direct and command such bind to be take  to prevent and guard against offence for the future the act likewise against  deer steal command such bind to be take vide g c sect and though there be no  authority in the present case yet it show the do of it be not malum in see the  counsel for the plaintiff have insist it be a excessive penalty and to be sure  it be a large one but I do not know that court of equity where a bind be enter  into voluntary have go so far as to take into their consideration the  greatness or smallness of the penalty I shall be extreme cautious how I give a  opinion that will set aside such bind which if right use may be of great  service in the preservation of the game and a equal benefit to the obligors  themselves in take they out of a idle course of life which poach natural lead  they into as to the head of security it be most absurd to think that bind of  this kind be intend mere as a security and that nothing be to be recover upon  they tall v Ryland Charles can vide Sloman v Walter bro Charles Rep Benson v  Gibson post vol atkins I be of opinion when these sort of bind be give by way  of state damage between the party it be unreasonable to imagine they can only  be intend as a bare atkins er p security that the obligor shall not offend for  the future be this the case in what respect be a gentleman in a better  condition who have such a bind than he be before if after he have obtain  judgement at law a court of equity will give he no other satisfaction than the  bare value of the price of the game that be kill these two head of relief may  therefore be lie out of the case the three be the most material consideration  and that be the ill use which have be make of the bind No evidence have be  offer to show that ever the plaintiff son have be guilty of shoot fish hunt c  from the time of the give the bind in till may after this fact of catch the  two flounder which must be admit to be a breach it rest for two year and no  action be bring upon the bind then it appear that the plaintiff here be a  witness in a information for a riot try at Winchester assize in Trinity term  where the duke be two servant be convict and chief on the plaintiff evidence  it be a very material circumstance that the plaintiff son have a licence or at  least a encouragement to fish by be in company with two of the duke be servant  one of which be brotherinlaw to mark the gamekeeper it frequent happen there  may be a just cause of action yet the real motive may be very unjust which a  court of equity will always take into their consideration though the can at  law pay any regard to it it appear by the evidence that mark who be the  gamekeeper who have the authority of the duke who have be a witness to the  transaction of the bind save a licence or at least a encouragement to this  fish which as it be with a angle rod only can not be call poach nor be it ever  so esteem beside in such a tract of time as two year it be impossible to  suppose mark the gamekeeper can be ignorant of this fish especial as his own  brotherinlaw be in company accord to the condition of this bind the plaintiff  can not be relieve at law because his son can not fish without express leave  from the gamekeeper or in n of a qualify atkins person so that if the duke of  Beaufort himself have give leave there must at law have be verdict because it  be not within the express term of the condition of the bind now when a man  have make this moderate use of his liberty of fish and manifest appear to have  have leave it will be hard not to relieve against the judgement and penalty  recover upon this bind at law the next consideration will be as to the cost in  this court though I be of opinion the money must be refund yet it will be too  much to make t duke of Beaufort pay cost because he do not appear to I to have  have the least knowledge of the circumstance of this case be carry on mere by  his agent but if mark have be before the court I will have decree cost against  he in equity but as he be not a party I must decree for the plaintiff that he  shall be relieve against this verdict and that the duke shall refund the pound  recover upon the bind and also the damage but give no cost in this court on  either side