cccxix MARTINGDALL and andrews case action upon the case for be in a action  upon the case the plaintiff declare that one Mildmay be seize of a house in a  and that be and all those who estate c time out of mind c have have a way over  certain land of the defendant call c pro a certain averiis nest and show that  the say Mildmay feoff he of the say house and that the defendant stop the say  way to his damage c and it be find for the plaintiff and it be move in arrest  of judgement that the title foe the way be not certain set forth I e pro a  certain averiis nest quod all men justice to go away but gawdy justice  conceive that the same be no cause to stay judgement for it appear to we that  the plaintiff have cause of action although that the matter be incertainly  allege and of this incertainty the defendant have lose the advantage have  surcease his time by plead to it as e trespass for take and carry away of  charter the defendant plead not guilty and it be find for the plaintiff to the  damage c and error be bring because the plaintiff have not set down in his  declaration the certainty of the land comprise in the charter ban non  allocatur for the defendant ought to have challenge that before and also e in  a writ of covenant the plaintiff declare of a covenant by which the defendant  covenant with the plaintiff to assure to he all his land and tenement which he  have in the county of Gloucester and Lincoln and declare that at a certain day  he require the defendant to make he assurance of all the land c and the writ  of covenant be general quod to hold assembly de omnibus terris quas to have in  c and it be object as here that the writ want certainty as how many acre or  such a manor but non allocatur for here the plaintiff be not to recover land  but only damage and the writ be award good Fenner justice the case be not like  to the case at bar for in the say case the certainty be not needful but for  the tax of the damage but bear the certainty of the number of the cattle be  part of the title Leonard mich Elizabeth in the king bench