case james against TUTNEY pron  interrog  principium ante page in replevin of  a distress take for a penalty under a bylaw if the defendant make conusance as  bailiff of the lord of the manor and the verdict be find for he be shall have  his cost ante S C Jones cro Elizabeth more cro James roll Rep dougl note term  Rep neither the statute of James c nor the Elizabeth c extend to action of  scandal great man this case be now argue at the bench by Berkley justice  myself and Jones justice the sole question be whether as this case be damage  and cost ought to be give to he who justify this distress as bailiff be  adjudge for he or whether the give of damage and cost be erroneous Werkley  argue for the defendant in error that the damage and cost be well give and no  error for by the Henry c it be express that every avowant and every other  person or person that make avowry conusance or justification as bailiff in a  replevin or second deliverance for any rend custom or service if their avowry  conusance or justification be find for they or the plaintiff bar shall recover  cost and damage as the party shall have do if they have recover croak car and  he conceive that by the express word of the statute he ought to have his  damage and cost for be be within the word custom for he distrain for a duty  demand ground upon a custom and if not yet especial he be within the intent  and equity of the statute for in statute although particular be enumerate yet  it exclude not but that whatsoever be within the same reason and equity shall  be take to be within the statute as the statute of Westminster de gift  conditional express diverse kind yet other gift not mention be within the say  statute so the statute Henry c of jointure enumerate diverse particular estate  which be jointure yet in Vernon case a other estate within the same reason be  within the statute also in the exposition of statute when the word make  provision for certain person yet they shall be extend by equity to other as  the statute of bigamy and the statute of Henry c of cost which be expound  large than the word so partridge case b lease for year be within the statute  of champerty and the yearbook Henry pl be express that the defendant shall  recover damage upon demurrer yet it be out of the word and here as this case  be a distress be for a customary duty he conceive that damage and cost be  recoverable as well by the Henry c as by the Henry c which add that the  avowant for damage pheasant shall have cost but he hold that if the lord avow  for relief or pro valour maritagii as be may yet that be out of the statute  for they be not service and custom but flower or fruit fall from they and  therefore they be out of the statute and be cite for this Henry pl and a  avowry for a amercement in a leet be out of the statute because it be not  ground upon custom and for proof thereof he cite grey case c and Greisleys  case d whereupon he conclude that judgement shall be affirm the same day I  argue the same way for this be a general statute ought to be take liberal to  remedy the general mischief which be at the commonlaw that the avowant  distrain just shall be at the charge to defend his act in distrain and shall  not be allow cost nor damage to the encouragement of those who tortuously deny  their duty sue out replevins mere for vexation sake and in a   a b Plowd c   d    a croak car er p discouragement of those who distrain who by the commonlaw  have neither cost nor damage allow they for their lawful distress wherefore to  remedy this mischief where the statute of Henry c and of Henry c make which  ought liberal to be construe for advance the remedy and suppress the mischief  as in Heydons case e and it shall be construe accord to the intent of the  maker which intend by Henry c to give cost to the defendant where he prevail  as the plaintiff shall have have if he have recover and although they mention  rend custom and service only and the preamble extend only to those rend custom  and service which lie in tenure yet the second part whereupon this opinion be  ground be not such rend c refer to the preamble but croak car all rend custom  and service so all manner of custom and service be within the intent of the  statute and I conceive the case concern distress for relief valour maritagii  and for amercement in leet to be likewise within the service of Henry c and  Henry c because they be in nature of service and to be expound as distress for  custom and service and therefore in the case of Shepward v Mackworth a where  the bailiff of Lord Berkley distrain for relief and the question be because  the land have be in ware to the queen by reason of other land hold of her  majesty by service in capite whether the heir shall pay relief to other land  at his full age it be adjudge that he shall there damage be give by the jury  to the avowant and although Popham advice because it be a new case that the  avowant shall take his judgement for the relief and release the damage which  he do yet that do not prove that no damage be due but that it be doubt only  and there be not any resolution nor opinion to the contrary in that case b and  all the precedent be that damage and cost have be allow to avowants in such  case and therefore I conclude that judgement shall be affirm Jones justice  argue to the contrary and say we be here upon the exposition of the statute  and multitude of precedent will not serve for the exposition of the statute  unless after debate in court they be mention to have be so adjudge but no such  precedent have be show but a multitude which have pass sub silence without  debate and for the matter be hold that it be out of the word and intent of the  statute for the first part of the statute be where a distress be for rend  custom or service in land c that the avowry shall be upon the land so that  extend only to such rend custom and service by which the land be hold and the  second part of the statute of Henry c which be quasi a exposition of the  former be in such avowry for any rend custom and service those word be to be  apply to former rend custom and service and although the word be general and  say not such rend custom and service yet it be to be apply to the former and  where the statute Henry c intend further remedy than be before it be by  express word upon distress for damage pheasant and other rend which extend to  rentcharge but no mention of distress or avowry for any other cause and in the  marquis of Winchester case c a case be cite upon the statute of Richard c of a  writ of error where upon a recovery against tenant for life it be hold it  shall not extend to other estate and the statute of James c which say that no  cost shall be give in other cause than such as be within the statute of Henry  c show that without a Act of parliament cost shall not be give in other cause  and for the case cite here in a avowry for a relief damage be give and for  doubt of error release by the avowant it do appear of record that they be  release therefore it shall be intend they be disallow by direction of croak  car the court and for the case of damage and cost give in avowry for  amercement in leet he know that in the Elizabeth in a avowry for a amercement  in leet damage and cost be give judgement be reverse for that cause in this  court therefore he conclude that judgement shall be reverse note in his  argument he say that in Lord say case a it be adjudge that e   a cro James b  see   Ent Greisleys case   c   a ante croak car er p temptation to sin great  man be out of the statute of James c of limitation of action upon the case and  out of the statute of Elizabeth c of error in the exchequer Chamber because  not mention although it be include in the word action upon the case croak car  easter term car in the king bench sir John Brampston Knt chief justice sir  William Jones Knt sir George croak Knt sir Robert Berkley Knt justice sir John  bank Knt attorney general sir Edward Littleton Knt solicitor general