case waddy against newton where the acre mention in a fine or common recovery  shall be take by computation and not by the statute de Terris mensurandis upon  a special verdict in ejectment the case be thus tenant in tail covenant to  levy a fine and suffer a common recovery of the land now in question and of a  fishery and accord levy the fine thereof by the name of one hundred and twenty  acre of land in StockwellHall in the county of c and of ten acre water  overwhelmed and declare the use thereof to himself and his heir modern report  but there be many more than one hundred and forty acre statute measure the  defendant who be heir in tail will contest the right to all above those  hundred and forty acre the plaintiff thereon bring a ejectment and suggest  that the whole estate modern report er p be compute to be one hundred and  forty acre by the common computation in the country c and upon not guilty  plead the jury find a special verdict they find that the fine be levy and the  recovery suffer by the name of one hundred and twenty acre of land and of ten  acre water overwhelmed and that the whole estate entail be compute in the  country to be one hundred and forty acre of land it be insist for the  plaintiff that all the entail land be comprise in this fine by the name of one  hundred and forty acre of land and this by the intent of the tenant in tail  who levy the fine that computation be to be ascertain by a jury accord to how  much it be repute to be in the country where computation be make and that they  be tie down to the very country where the thing be transact therefore when a  to have facias possession be direct to the sheriff to put a man in possession  of twenty acre be must deliver twenty acre to he accord to the usage of the  country where the land lie so where tenant in tail of the manor of Lavington  and of two close repute parcel thereof levy a fine and suffer a recovery of  the manor with the appurtenance thou v thou vent S c lev S c side S c Mod a  now though the two close be only parcel of the manor in reputation yet they be  adjudge to pass because it be intend by the party that they shall pass the  fishery likewise passes by the name of ten acre water overwhelmed for it be  demandable by that name in a prcipe Mod b which be a real action and so it be  in a assize Inst c and if a real action will lie for it certain a ejectment  will the counsel for the defendant it be not pretend that this computation be  the common way of measure land by the custom of the county or hundred but only  by the custom of Stockwellhall in the county of c and it will be very  difficult to know how far that extend so there be no manner of certainty to  fix the custom the plaintiff can never get over the statute de mensurandis  Terris Edward c d but the court will judge of the number of acre comprise in  this fine and recovery accord to that statute as a certain rule to direct  their judgement modern report now by that statute a acre of land contain ten  perch in length must be sixteen perch in breadth and so on therefore these  hundred and forty acre comprise in this fine must be accord to that measure  and not leave to a uncertain computation and there be a difference between a  manor which be fix to no certain measure and a quantity of acre where the  measure be ascertain by the statute it be true if it be the custom of the  county or of the hundred so as it be limit or fix to a certain place this  method of computation may be good as a acre in Cornwall or a perch in  Staffordshire because the public usage of the county give it a sanction and  there be some law book Cromp law e which prove that the measure in those  county be different from all other place in England and so be the prince of  the thing measure but in the present case the acre if take by computation be  twofifth large than the common or statute measure without confine such  computation to any certain place and in all the case wherein it be mention  what pass by suffer a recovery of a manor in reputation it be allege in the  deed that the covenantor be to suffer a recovery of a repute manor but it be  not set forth in this deed that the covenantor be to suffer a common recovery  of so many acre in reputation but only of one hundred and forty acre general  beside there be a difference between a fine levy and a recovery suffer in  pursuance of a contract for a valuable consideration and a voluntary fine and  recovery as this be for in the one ease the prior agreement govern the whole  but where there be no such agreement the ordinary course of law be to be the  guide and no strain construction shall be deduce from the intention of the  party and it be to be observe that the statute de Terris mensurandis be make  on purpose to ascertain the fine due to the king by alienation of land by fine  and therefore such a lose computation of the number of acre shall not avoid  the design of this statute and if so then where a man covenant to levy a fine  of five hundred acre of land certain it must be intend statute acre modern  report er p as to the fishery the plaintiff have no colour to have judgement  because a ejectment will not lie of a fishery nor in any case but where there  may be a entry and expulsion and that can be of a fishery especial in this  case where modern report it be of a fishery in the river tine which can pass  by the name of so many acre water overwhelmed because it be not like a pond  where the very soil be the property of another but this be only a freedom to  fish in that river the court it be admit by the counsel for the defendant that  if this fine have be levy and a recovery suffer in pursuance of a former  agreement or covenant for a valuable consideration and that it have appear to  be the intent of the party to pass the whole estate by the name of one hundred  and forty acre in such case the whole will pass now here the jury have find  that the whole estate entail be compute in the county to be one hundred and  forty acre and it will be difficult to apprehend a difference between a  covenant for a valuable consideration and a voluntary covenant for it can  reasonable be say that the same word shall pass all the land in one case and  shall not pass the whole in the other case especial when the tenant have it in  his power to pass it as he please but they hold that a ejectment will not lie  of a fishery see Herbert v Langbane cro car that a ejectment will not lie de  piscaria in such a river because it be only a profit a prendre but that it  will lie de land water overwhelmed a so the defendant must have judgement as  to that matter but because the chief justice who try this cause do believe  that the defendant be surprise by the find of the jury that the whole estate  tail be compute in the country to be one hundred and forty acre they will not  tie he down to this verdict but admit he to bring a new ejectment to try the  truth of that matter and that they will consider of the judgement until next  term but recommend it to the party to agree in the mean time