Reports of that reverend and learned judge, Sir Humphry Winch Knight sometimes one of the judges of the Court of Common Pleas : containing many choice cases, and excellent matters touching declarations, pleadings, demurrers, judgements, and resolutions in points of law, in the foure last years of the raign of King James, faithfully translated out of an exact french copie, with two alphabetical, and necessary table, the one of the names of the cases, the other of the principal matters contained in this book.

The argument of Justice Hutton to the contrary.

HUtton contrary, the fine had not barred the rent, in which I will consider the nature of fines at the Common Law, and they were of mightie and great esteem, and force, as appears by the great solemnitie which is used in them, as is prescribed in the Statute of fines 18. Ed. 1. de modo Levandi fines, and he a∣greed that such a fine by Tenant in fee simple will pass that inclusively, for by the release of all his right in the land a Signiorie is gone. I agree also that a fine is but an agreement; but yet it must work according to the nature of the thing, as upon a writ of Measne, or of right of advowson, a fine may be levied, and yet it is not levied of the lands, but of the advowson, or Signiorie, and so if the writ of covenant be one thing, and the agreement of another thing, then it is not good, and first I will prove, that at the Common law fines have been rejected when the writ of covenant did not contain the thing of which the fine is to be be levied, and if at the Common law a fine was levied of rent, there ought to be a writ of cove∣nant of that 18. Ed. 2. fines 123. and there the rule is given, that it is against reason to hold covenant of that which never was, and the rent there never was be∣fore, but ought to begin then, and yet it is clear a man may create a rent by fine; but he shall not have a writ of covenant of that when it was not in esse before, and because the concord may not varie from that, therefore it was not received 38. Ed. 3. 17. Knevet put the rule, that a fine may not be of more then is in the writ of covenant, and when a fine is properly levied of that, it is by way of release: Fitz. fine 100. and so I conceive here the rent doth not pass. Secondly, here no man may plead that any fine is levied of this rent, for this is forced in by the name of land, which is absurd, and contrary: and here is not any fine levied directly of the rent, nor any Silver of the King paid for that, but only by the judgement of consequence: and now for the Statutes of fines, whether it is a fine within these Statutes, and I hold that it is not: and I am of opinion that if the rent had been behinde before all the dayes of proclamation pass, and the issue had accepted, that he is remitted: and the same law is, if Tenant in taile of such a rent, and he ac∣knowledge such a fine with proclamations, and the proclamations pass, now if his issue had accepted the rent before the proclamations passed, he is remitted: and now for the Statute of 32. H. 8. that is not taken by equitie, because it is a Statute of explanation, which regularly may not be inlarged: and so appears in Butler and Bakers case; and now for the agreement it self that is not any thing, for this is

by a contrary name which may not be good: like to the case of the Lord Cromwel, for there was an agreement to raise a rent by fine, but here is an agreement to pass a rent by another name, and will any man say that if a man agree to levie a fine of rent by the name of an advowson, that this will pass the rent; and I think that the case of Thornton is good law, and so is also the case which is put after that of the advowson: and yet I agree if Tenant in tail do accept a fine with render to another for years, that shall bar him, because that doth not work a discontinuance, but otherwise where it is for life, and so in my opinion the rent remains, and the avowant shall have judgement.