Bulstrode Hungerford plaintiff against Haviland defendant enter Termin Hillar  James b r rot promise Ro Rep latch Benl Jones in a action upon the case for a  promise the case upon the plead be this Thomas smith be seize of land and hold  this of the plaintiff as of his manor of Winston by rend and by a customary  relief of one year value smith alien this land unto Haviland who maii James  devise this to the defendant Haviland the devisor die the defendant enter and  be seize the plaintiff lie a colloquium between he and the defendant as touch  the arrearage of the rend and the relief the plaintiff say unto the defendant  that if he will not pay he he will put he in suit for it upon this the  defendant do assume and promise unto the plaintiff that if he will forbear the  put of he in suit until the next court and then if the plaintiff shall make it  appear to the brother of the defendant that these tenement be so Chargeable  with the S yearly rend and with the relief that then he will pay this unto he  the plaintiff aver that upon this he do forbear the suit and that Bulstrode er  p at the next court he make it to appear to the brother of the defendant per  praesentationem homagii curiae that and also by the record of the court that  the rend and relief be due unto he by the defendant and that notwithstanding  all this the defendant have not pay this unto he accord to his promise unde  action the defendant come in and confess the action as to the exception take  in arrest of judgement the first and chief exception insist upon be that lie  can have remedy for the relief if the law de not give he remedy for it and so  this resemble unto Godfreys case coke pars as to prescribe in the thing so he  ought to prescribe in the mean to come unto it as to this it be here lie that  by law he may distrain for it this be remedy cum to fall upon secundum  experience manor so that as it be urge this be parcel of the tenure and then  he may well for this distrain and this appear h fol full in point in the case  of to think over long by hankford but admit he have no remedy for this relief  yet he may distrain for the rend and this be sufficient to ground the promise  for the whole and this be a good consideration a second exception insist upon  that this be lie too general as to this it be sufficient lie that he have make  this to appear to his brother and it be certain lie for it be in this manner  that he make it to appear by presentment of the homage of the court upon oath  and so by they present and by the roll of the manor and here the promise be  the point and ground of the action it be further urge in arrest of judgement  that the relief here be mere due by custom and so no remedy for this but by  custom it be urge that two thing be here to be do before payment to surcease  the suit to make this appear to the defendant brother that the same be due her  Bulstrode make it appear that it be due by smith long time before and by  Haviland but not due by the defendant and then no cause of action Whitlock  justice two exception only insist upon the point be whether this relief as it  be lie in the record be of such a nature as that remedy may he have for it it  be here lie that the land be hold per edditum per remedy cum to fall upon  which art of the tenure and for his remedy he may very well distrain for this  when this case come first in question I put the case of h of relief for a  knight fee leviable by distress because due by tenure the statute of great  Charta do not to lead in novan law it do but explanar old times cum to fall  upon by this the same be well explain when this ought to be pay here it be due  by tenure and here be a sufficient consideration to raise a assumpsit because  he may have remedy by distress but admit that he have remedy for the rend and  none for the relief yet the consideration be good and it be not to be construe  and examine by weight and measure if the consideration depend upon two part  and remedy be for the one but not for the other if one part of the  consideration stand this be a good ground to make the promise good as touch  the mean how he have make this to appear that the same be due the record as to  this be that he be to make this to appear that the land be onerabilis as to  this there be no better mean and evidence to make this to appear but by these  two way S by the presentment of the homage upon oath no better nor strong  evidence can be for that all the right of the lord be examinable and triable  by the homage this be evident and a direct mean for the rend as for the relief  he say that he have make this to appear per rotulos curiae this be the proper  evidence to prove this for if the same be due by custom or by tenure the same  ought to be make appear by the roll of the court if speech be make of proof  general this ought to be proof by jury if of matter of record this be to be  prove by the record but if proof be to be make of a particular benefit which  the lord of the manor be to have then no better proof can be make of this than  by the roll of the court for no proof can be more direct and particular than  by set down of all the roll in certain if the proof have not be good in  Bulstrode er p law the defendant ought then to have demurrer in law to it but  here the defendant have not so do but he have confess the same so that this be  now admit by he and de the judgement here ought to remain in force and the  plaintiff ought to have his writ of enquiry of damage Jones justice as to the  first exception that here be no remedy for this relief as to this the point  grow by reason of the tenure or by reason of the custom if by tenure he may  then distrain if by custom then to be consider what remedy for this as to have  the custom to maintain the relief so also to have the custom to maintain his  remedy for this heriot custom not to distrain but by custom if relief be due  by custom he have no remedy for this but by custom here there be a tenure lie  beside the custom it be lie that he hold of he per remedy to be pay secundum  experience manor but that it be due by tenure and then he have good remedy for  this and so here he have good remedy for this and that the consideration be  good in substance as to the last point that he be to make this to appear this  as it be here Bulstrode lie be good in substance and the defendant have make  all good by his confession dodderidge justice by the book in temps e title  relief and e it be agree that relief be no part of service and therefore till  our late time agree that debt lie for it this may be incident to the tenure  but yet no part of the tenure the statute of great Charta be in part  introductivum new law for the baron relief before this statute be at the king  pleasure as appear by Glanville title relief but the statute of great Charta  have now make this certain if by this declaration it appear that the relief be  due by custom then no remedy can there be for this but by custom no apt case  may be resemble to this but the case of the heriot for heriot service he may  seize or distrain but for heriot custom seize as it be resolve in Plowdens  commentary in Woodlands case second point if due by custom there be then a  failer of part of the consideration for then the point will be whether the  other part of the consideration will uphold the promise or not that the same  will not but all the consideration allege ought to be perform or no action  upon the case lie upon the assumpsit Elizabeth dyer a consideration to raise a  assumpsit ought to be a mutual recompense h fol l a notable case in trespass  adjudge upon a concord there plead that the defendant shall de two thing it be  no concord unless that both the thing be do he ought to perform all as to the  other matter whether he shall take advantage of this declaration after his own  confession as to this he may take advantage of the declaration for although he  have confess this matter yet he may well show unto we that we as judge shall  give a erroneous judgement this he may show unto we by way of prevention ut  friend curiae in arrest of judgement as to the exception take for the make of  this to appear that the rend be due how this ought to be do by the presentment  of the homage and the relief by the roll of the court and so it be express in  the declaration to be as to this manner of appearance in his imagination he  think he can make it appear but this be no full proof but he ought to show  that the same be pay for the steward may put in what he will but he ought to  make it appear that the same be pay and then we be to judge upon it and so  without any absolute or final opinion in this case give he desire time to be  further advice herein crew chief justice two relief here lie to be due by  reason of two several alienation as to the case h the case de to think over  long if relief grow due by custom there it be clear that he ought also to have  a custom to enable he to have mean to recover this general relief be to be pay  upon the death of tenant here he claim to have this upon every alienation here  this be due by custom not by tenure here two thing be to be make to appear and  this two way one way for the rend by the homage and for the relief that be due  by the roll if he have make here the rend and the relief sufficient to appear  to be due be the question if the promise be in such a manner that if he shall  make it to appear that the rend and relief be due he ought in pursuit of this  to make this appear by action and by proof in this Bulstrode er p as to the  confession here he shall not be admit to say after this that the same be not  due as touch this vide r Fitzherbert title bar plea l what manner of proof  ought to be where before the suit and where in the action also he ought to  make both to appear that the rend and also the relief be due and if he only  make part to appear he be not to have his action as if a man do promise to  another so much if he deliver unto he so many quarter of corn if he deliver  Bulstrode but part he shall not have his action upon the case for the promise  before he have deliver all and so without any further debate at this time this  principal case rest upon a curian advisare vult and so the same be adjourn to  a further time afterward S termin Trin caroli king b r this case be move again  and argue at the bar and after by all the four judge who agree all in opinion  for the plaintiff and accord by the rule of the court judgement be then give  and so enter for the plaintiff