A relief properly is not a service, but a casual entry by reason of the service, due only on the death of the tenant by the heir; *because it is not due by a successor on the death of the predecessor, without special custom, and relief is incident thereto. But this is something else, which is called, though it be not, a relief, and it is due by reservation or custom, and may be on succession, alienation, greater or smaller, according as the custom or reservation make it; and not absolutely proportionable to the annual rent, as a proper relief is. Mantel and Redsal's case, Plowd., 91. When relief is by custom upon alienation, no distress shall be intended, unless it be alleged as for a heriot *Page 723 custom or for a court leet, 11 Rep., between which and this sort of relief no distinction can be made. For a man cannot have a distress by relief for custom, if he has not it by custom. Then the action fails. For a duty without a remedy is no duty, as a remediless right is no right.
It seems to me this ought to be intended a relief by tenure, as my brother WHITLOCK has said; and the words secundum consuetud. manerii refer to the other tenants who pay by custom. But if it is not shown here, we cannot take it by the averment that he made it appear to his brethren, for he ought to make it appear to us. As to the exception that he does not show the rolls, perhaps it would be attended with infinite difficulty; and in such cases the law dispenses with precise certainty. As in the case of a bond from the sheriff to the under sheriff to discharge him of all estreats, etc., he shall not show all the estreats, etc., on account of their great number. The consideration to forbear the suit is good, as if he had a rent seck without seizin.