The argument of Davenport Serjeant.
DAvenport Serjeant to the contrary, and he said, the case is as hath been re∣cited, and the question is, whether the rent so granted in tail is by this agree∣ment of the parties, and by the fine of the land, whether it hath extinguished the rent: and I hold this conveyance which only passeth the rent by implication, is no bar to the issue in tail within the Statute of fines, for where it is said, that a fine was levied of the rent by the name of the land, and made no mention of the rent, this will not carry the rent, and yet I agree this fine to be a feofment upon record, and to be a bar against the parties who levied that, but not against the issue; if this had been before the Statute of fines, it is no question, this had been no bar against the issue, for it is the express book 13. Ed. 3. avowrie 12. and 26. H. 7. 4. Te∣nant in tail of a rent made a feofment in fee of the rent with warrantie, and there it is said, that the warrantie did not extend to issue quoad the rent, but now our case is upon the Statute of 32. H. 8. which saith that a fine shall be a bar of my lands, Tenements, and hereditaments any way intailed, but yet I conceive that this requires that the fine be levied expresly of that, and not by way of conveyance, and so the case of Smith and Stapleton by Thornton, who said that this was gran∣ted to him to be law, which must needs be meant it was granted by the Court, or by the Councel of the other side, and the reason of that is, because it ought to be levied of that expresly, and there it is said, if Tenant intail of an advowson, do levie a fine of the nomination, that shall not bar the issue, and yet in effect that is the advowson, and because it is not levied of that expresly, it is not good, and then for the precedent agreement that is indeed, that the fine shall be for the extinguish∣ment of the rent, and what then will that prove, that the fine was levied of the rent, and here the writ of Covenant was not brought of the rent, and yet I agree that agreements which do lead uses of fines, will qualifie them against the very nature of the fine, as the case of the Lord Cromwel and Puttenham in Dyer: but I do not hold the agreement will extend over the nature of the fine, and therefore this being a rent in gross, it may pass by the name of land, and the averment here is con∣trary to that which doth appear upon the Record, and then not comprised is a good plea; but this shall not be tried by the Countrie, but by the Record; as 12. H. 7. 16. for it is only to inform the Court, that the partie had mistaken the Law, and shall be tried by the Court, and not by a jury in the Countrie, as Attoe said, and so upon the whole matter of the case I conclude my argument, and pray judge∣ment for the Avowant: see after Hill. 22. Iac.