case part against purbeck if in execute a writ of enquiry in a action of  covenant for nonpayment of rend reserve on a lease the jury give less than the  rend in arrear the court will quash the inquisition and grant a new writ of  enquiry on payment of cost S c post in a action of covenant for nonpayment of  rend reserve upon a lease for year there be judgement against the defendant by  default and upon a writ of enquiry execute the jury give the plaintiff but one  shilling damage and no more though he prove that the defendant owe he one  hundred and fifty pound for rend modern report er p the reason why the jury  give a shilling and no more be because the defendant take this lease of the  plaintiff of a certain piece of ground in which he the lessee covenant to pay  so much rend and the lessor covenant that he shall have such a sewer or dam to  keep water he the lessee intend to set up a papermill but the commissioner of  sewer have make the watercourse so narrow that he can not have water  sufficient for his purpose and be unwilling to sue the lessor upon this  covenant he leave the land to the lessor and thereupon another person enter  and be possess thereof and set up a cornmill and the miller pay the rend and  all this be know to the jury who be of the neighbourhood they give the  plaintiff a shilling and no more and now it be move to set aside this writ of  enquiry for the smallness of the damage for since this action of covenant be  bring and the breach assign for nonpayment of so much rend in certain the jury  be oblige to find the whole it be true if it have be in a action for damage  they may have find part only and it be usual to set aside a writ of enquiry  for smallness of damage where no manner of evidence be give why they shall be  mitigate see part v Niblet post a which be this case the counsel for the  defendant insist that the execution of a writ of enquiry be not to be set  aside and a new writ of enquiry grant for the smallness of damage give modern  report by the first jury unless there be some contrivance or sinister  management and so be the case in Salkeld Rep in covenant to pay a sum certain  as in the principal case and that upon default of payment it shall be lawful  for the covenantee to enter and take the profit c the defendant plead in bar  that the plaintiff do enter and take the profit and upon a demurrer to this  plea the plaintiff have judgement and a writ of enquiry and small damage and  upon a motion a new writ of enquiry be award because a action of debt may have  be bring upon this covenant it be to pay a certain sum and in such action the  jury upon a writ of enquiry must have give the whole sum unless the defendant  prove something in mitigation which be not do in that case therefore the court  look upon it to be a contrivance of the jury award a new writ of enquiry yet  they hold it to be a common rule that no new writ of inquiry shall be grant  for too small damage if there be no contrivance in the case for if it shall  this inconveniency may follow videlicet the small damage give by the first  jury may influence the second jury to give great the court be of opinion to  set aside this writ of enquiry for though the suppose breach of covenant on  the plaintiff side be true videlicet that the defendant have not sufficient  water to set up his papermill and that have be give in evidence to the jury on  the writ of enquiry yet they can not have mitigate the damage on that account  much less when it be not give in evidence it be true the lessee leave the land  for that reason and another enter and possess it which entry c may have be  give in evidence upon the trial of a issue join but not to a jury upon a writ  of enquiry after a judgement by nil debet neither do the defendant give it in  evidence to the jury but pretend they know it themselves it be admit that in  covenant where damage be to be recover the jury upon a writ of enquiry be the  proper judge of the quantum of the damage and for that reason the court will  not set aside their inquiry where they give small damage but it be otherwise  where the covenant be for payment of money and the sum be ascertain because in  such case the sum be certain the jury can lessen the damage and this be the  constant difference in such case and it be the same as if a assumpsit have be  modern report bring for money upon a note under hand for there the jury can  mitigate the damage if they do the court will set their verdict aside and so  it be do in the principal case upon payment of cost c