#### Hungerford vs. Havill.

Pasch. 1 Car.

CASE. The plaintiff declared that he was seized of the manor of Williamson, in Comitatu Gloucesier, in which there is a custom; that on every alienation made by every frank tenant who holds the frank tenement of the manor, a relief is due. And after 30 M. 13 Jac. one S. T. was seized of such land, and held it of this manor, as of the manor of Windsor, in free foccage viz. per fealty and suit of court 5s. rent and relief quando accident according to the custom of the manor. Afterwards he shews that being lord of the said manor the 3d of July. 20 Jac. he had a conference with the defendant respecting the arrearages of rent and the reliefs, when the defendant, in consideration that the plaintiff would abstain from suing him, till the next court to be held for the said manor, and would make it appear to him and the other tenants, who were chargeable, that the reliefs were due. The defendant promised *95and assumed to pay the said reliefs and arrearages. The Plaintiff avers that the next court was held on such a day, when he made it appear that &c. are due, viz. by homage that the rent was in arrear; and shewed that the reliefs were due by the court rolls, and avers that the defendant did not pay &c. The defendant confessed the action and judgment given upon it, and a writ of inquiry of damages awarded and a second judgment given, But in arrest of judgment divers exceptions were taken: 1. It is impossible that the plaintiff ought to have relief. 2. The alienation is a new form of alienation, and cannot be part of the custom; for it comes by the statute 23 and 24 H. 8. but an alienation by will is within the statute; and it was compared to a common recovery, or any new form of alienation as by deed indented. But these two objections were overruled. 3. The plaintiff cannot have a remedy for this relief, unless it be averred that he prescribes to distrain for it. 11 Rep. 44. Godfrey’s case.

Bridgeman

argued that he may distrain for this relief; for as he had declared that it is part of the tenure, and the tenure is by curtain, he may distrain for it. 14 H. 4. 2. and he compared this relief to a fine for alienation. 2. Admitting that he cannot have a remedy for the relief, yet he has a remedy for the rent; and the forbearance of suing for that is a sufficient consideration.

The last exception was, that he did not make it sufficiently appear to the tenants, that &c. the words are quod ipse fecit apparere, that the tenants are charged with them, and this by the presentment of the homage, upon their oaths: et ipse fecit apparere per rot. cur. Lord Lisle’s case was cited 22 E. 4. There the defendant ought to shew his charge, for it is the substance of the bar. 41 El. Washington’s case. Action on the case on a promise: the plaintiff declared that the defendant promised to pay him so much, if he would assure such lands to him: that he assured &c. without shewing by what conveyance: held that it is well enough, for the kind of conveyance is not the point in question. On the other side it was argued: that there is no relief here; for it is contrary to the nature of a relief to be due on alienation; and this being a relief by custom, and the prescription of a remedy being not shewn, as for a heriot custom; there is no distress, unless the custom gives it.

Whitlock, J.

The first question here is, whether this relief be a duty? There is a remedy, for it is expressly *96said the relief is due upon every alienation; and for what is due by custom (as it is by tenure) distress lies. As in 11 H. 4. There is no doubt but a relief may be levied by distress, for it is a part of the tenure and admitting the contrary: yet there is a sufficient consideration. And if there be two considerations, and one of them be meritorious, it is well enough. With regard to the last exception, viz. the means of making it appear, that, &c. 1. Respecting the rent, &c. he makes it appear by presentment; and the tenants are the proper inquisitors to ascertain what is due to the lord. 2. As to the relief, rotuli curiæ are the proper evidence. And this is not due by law, but by tenure sand the custom *of the manor. I do not know how he could have made it appear more plainly. Besides if this was not sufficient, the other ought to have demurred; but he has confessed the action.

Jones, J.

This is not properly a relief, for that ought to be on the death of the party. But there the relief is something growing due by custom or the reservation of the party. 11 H. 4. In Wales and Cornwall it is due by custom; and if it be due by custom distress lies; for the custom ought to maintain the remedy. Mantlies case in Plowden. In the book of 14 H. 4. there is no resolution in point; for heriot custom distress does not lie without custom; but seizure only. In this case both lie. He says that the land was held of him, &c. by sealty, &c. relief quando acciderit secundum confuctud. manerii: so there is a remedy, for there is a tenure. But he ought to prove both that the land is charged, and that the relief is due, viz. in point of tenure. With regard to the other point: he has made it appear well enough; besides the other has confessed it.

Doderidge, J.

All the books agree that relief is no part of the tenure; but an incident thereto; therefore debt lies for it: and the question now is, whether it be alledged as an incident to the tenure, or something due by custom; and this cannot be resolved on the face of the declaration. If it be a custom, he ought to alledge the means of recovering it; as for a heriot by tenure, he may distrain or seize, but for a custom he cannot distrain without distress be given also by custom, as in Godfrey’s case: and here the remedy ought to be alledged. There are two considerations: and if he fails in one (as he fails here in the relief) you cannot expect the performance of the promise, which is made in consideration of both. 10 Eliz. Dyer. 6 H. *97 7. 10. An accord is entire. In this case, although, the defendant has confessed the action, yet he may shew to the court, in arrest of judgment the defects of the declaration to prevent error; and we are not barred. In respect to the manner in which he makes it appear that the rent and relief are due; it is in his imagination only; and the court rolls are no proof to us.

Crew, C. J.

I take this distinction: If the words be that he ought to make it appear to the man; then he makes him the judge, whether relief be due or not; and it is sufficient if he makes it appear to his brothers, viz. the tenants. And this is the best means to do it. But if the words be that he ought to prove that the land is chargeable with the rent, and that relief is due, the proof ought to be by action. 7 H. 2. Fitz. Barr. 241. 19 and 15 E. 4. Sed adjournatur, postea, p. 129. Jones 132. Bendl. 180. *3 Bulstr. 323. Roll. 370. 1 Cr. 681.