brown case robert Lowther appellant Michael raw and other respondent that  April Mews dig go way fortesc see row v Brenton b c in a dispute between the  Lord of a manor and his tenant as to a custom deed between the lord and tenant  of neighbour manor be admissible evidence to explain and support the custom By  the custom of several manor in the county of Cumberland and Westmoreland a  general fine become Payable upon the death of the Lord this be a good custom  even where the manor have be alienate by the Lord in his lifetime in the year  Philip Lord wharton and sir Thomas wharton Knt his son and heir apparent or  one of they be seize in fee and Lord of the several customary manor of Kirkby  Stephen wharton Nateby shapp Tebay Langdale Bretherdale Reagill Sleagill  Longmarton and Bampton Carhullan in the county of Westmorland in which manor  be several customary message land and tenement hold of the Lord or lord of the  say manor respective as tenantright or customary estate of inheritance  descendible from ancestor to heir accord to the custom of the say manor  respective on payment of fine or gressoms on change of the Lord by death only  call general fine and on change of the tenant by death or alienation call drop  fine and upon payment of certain ancient annual rend and boon and on do and  perform suit and service at the court hold for the say manor respective accord  to the respective custom thereof both the general and drop fine Payable by the  customary tenant of the say respective manor be former and have time out of  mind be reasonable arbitrary fine at the will of the Lord for the time be  until the year when the say Philip Lord wharton and sir Thomas wharton in  consideration of diverse large sum of money pay they by several of the  customary tenant of the say manor and for avoid the frequent difference and  dispute which happen in relation to the payment of the say fine come to a  agreement with the several customary tenant touch the settle fix and ascertain  not only the quantums and reasonableness of the say fine and the time of  payment thereof but also touch the Lord on who death the say general fine  shall be Payable and thereupon by ten several indenture of agreement every of  they respective bear date in the month of August and September in the say year  and respective make and execute by and between the say Philip Lord wharton and  sir Thomas wharton of the one part and several of the then tenant of the  customary estate hold of the say manor respective of the other part it be  witness that whereas the say customary tenant party to the say indenture  respective and their several ancestor or those who customary estate they  respective have time out of mind and then do several hold to they and their  heir all the several message land and tenement with their appurtenance in the  aforesaid brown manor then be in the several occupation of the say tenant of  the say manor or of their several assign of the aforesaid Philip Lord wharton  and sir Thomas wharton Knt or one of they and of their ancestor lord of the  several manor aforesaid for the time be by and accord to the custom of  tenantright there use time out of mind of man within the say several manor  respective by the payment of certain annual rend suit of court and service for  the say tenement and premise respective usual and accustom and by pay upon the  death of the say Lord only and change of the tenant by death or alienation  such reasonable fine arbitrary and uncertain as between the lord and tenant  for the time be shall or may be compound for and agree upon reasonable they  the say Philip Lord wharton and sir Thomas wharton in consideration of several  sum of money mention in the say several indenture amount together to pound S d  pay they by the say several tenant party to the say indenture respective and  in consideration brown er p of the honourable care and special favour they  bear to the say tenant and the better to ratify establish and confirm the  several customary estate and interest of inheritance of the say tenant and  their heir and assign for ever in their several message land tenement and  hereditament accord to the say custom of tenantright during all the say time  of memory then or theretofore so have and use as aforesaid and in all point as  theretofore have be accustom without any violation or alteration thereof save  only that the fine and gressoms may from thenceforth become certain and know  for avoid of suit which thereafter may ensue be agree and do thereby for they  their heir and assign for ever as well declare and acknowledge that all the  say customary estate of the say tenant respective then be and time out of mind  have be and for ever thereafter shall be and of right ought to be repute  adjudge and take to be customary land and hereditament of inheritance accord  to the nature of the ancient and laudable custom of tenantright as also do  thereby covenant grant and agree to and with every of the say tenant party to  the say indenture their respective heir and assign that for ever thereafter  they shall several accord to their several possession or occupation in the say  customary estate have hold and enjoy the same with their appurtenance to they  and their heir and assign accord to the ancient and laudable custom of  tenantright and that also in every point accord to the custom theretofore use  and observe in the say manor by the yearly payment of their rend due for the  same and by do and perform such duty custom and service for the same as have  be theretofore use and accustom save only for the manner of payment of the  fine and gressoms as therein after ensue any thing therein or otherwise to the  contrary notwithstanding and that without any let or hindrance of the say  Philip Lord wharton or sir Thomas wharton their or either of their heir or  assign or any person brown claim by from or under they or either of they in a  wise and the say Philip Lord wharton and sir Thomas wharton do thereby further  covenant grant and agree that they nor either of they their nor either of  their heir or assign nor any of they shall not at any time or time thereafter  claim demand or have any other or more or great fine or fine or gressoms of  the say respective tenant nor of their nor any of their heir or assign nor of  any of they save upon change of the Lord for the time be by death only and  upon change of the tenant for the time be by death or alienation than ten time  so much as one year ancient annual rend Payable by the say tenant respective  within the say manor of Kirkby Stephen wharton Neatby shapp Reagill Sleagill  Longmarton and Bampton Carhullan and eight year value of such ancient annual  rend Payable by the say tenant respective within the say manor of Tebay  Langdale and Bretherdale and that without any increase or further demand  whatsoever for or in any wise concern any fine or gressom for or in respect of  the say customary estate or any part thereof and that the say Philip Lord  wharton and sir Thomas wharton or one of they have good power and right to  covenant agree and grant to and with the say tenant respective their heir and  assign in manner and form aforesaid and that they their heir and assign will  at all time thereafter at the cost and charge of the say tenant or of any of  their heir or assign do and execute any further act or assurance for the  perpetual performance thereof at all time thereafter and the say several  tenant party to the say indenture respective do several covenant to pay the  say ten year and eight year fine and gressom accord to the true intent and  meaning of the say indenture at and upon such two yearly feast day of saint  Martin the bishop in winter and Pentecost by equal portion as shall from time  to time successive and next happen after the same fine or gressom shall grow  due or Payable by the true meaning of the say indenture by or by reason of the  death of the Lord of the premise or by or by reason of the death of the tenant  for the time be or of the alienation for the time so happen these several  indenture and all the clause covenant and agreement therein contain be by two  several decree of the high court of chancery make in Hilary term by consent of  all the party thereto ratify and confirm and decree to be observe and perform  for ever thereafter the say manor by several descent come to Thomas marquis of  wharton brown er p on the death of Philip Lord wharton his father and he  thereupon readmit all the tenant to their estate and assess and receive a  general fine from they on that occasion in the marquis die seize and in  possession of the say manor and thereupon a general fine be pay by all the  tenant to Philip duke of wharton his only son and heir who be the last general  admit Lord brown in the year the duke be seize of all the say several manor  grant and convey the same to certain trustee upon trust to be sell for payment  of his debt and some time in the year the appellant purchase all the say manor  with the rend fine and service thereto belong of the trustee for pound and  accord enter upon the possession thereof and receive the drop fine and the  annual rend of the respective tenant as the same from time to time become due  and Payable the duke after the appellant purchase withdraw himself out of this  kingdom and die in Spain on the that of June whereupon the appellant conceive  that a general fine be become due to he by the death of the duke of wharton  the last general admit Lord hold several court customary or court of general  dimissions in and for the say several manor and set and assess a general fine  upon all the customary tenant thereof the respondent and all the other tenant  of the several manor who be owner of the customary land or tenement belong to  the several customary tenant party to the say indenture of refuse to pay the  say general fine so assess by the appellant he in Hilary term exhibit his bill  in the court of chancery against the respondent set forth the say indenture  and decree and insist that by the custom of the say several manor for time  immemorial a general fine be due upon the death of the last general admit Lord  who continue still to be Lord till the time of his death with regard to the  payment of a general fine notwithstanding he have sell or alien the manor  before his death and that such custom be not vary or alter by the say  indenture or decree and therefore pray that the respondent and all other the  customary tenant who claim any customary estate within the appellant say manor  which be the estate of any of the tenant party to the say indenture of may be  decree to pay the general fine assess upon they for their say estate as due to  he on the death of the late duke of wharton the last general admit Lord or  such other fine as become due accord to the say indenture and decree or such  other fine as the court shall adjudge together with interest from the time the  same ought to have be pay and that the appellant may have the benefit of the  say former decree and that the indenture of and the decree thereon may be  carry into execution the respondent by their answer admit that they be several  seize of several customary estate within and hold of the say manor as  tenantright or customary estate of inheritance descendible from ancestor to  heir accord to the custom of the say manor as the same be explain fix and  ascertain by the say indenture of and the decree make thereupon and say that  however the custom of the say several manor may have be before the say  indenture brown and decree with regard to the payment of a general fine on the  death of the last admit Lord which the respondent do not admit but on the  contrary insist that the fine by the ancient custom be Payable on the death of  the Lord for the time be in possession only yet by the say indenture it be  clear and establish that the say general fine be now Payable on the death of  the Lord for the time be only the cause be at issue the appellant examine  several witness well acquaint with the nature and practice of customary manor  in the county of Cumberland and Westmoreland who prove that after the death of  the last general admit Lord or lady of any customary manor a general fine  become due and Payable from all the customary tenant of the manor to the next  succeed Lord whether he come in by descent or purchase or whether such last  general admit Lord be at the time of his death in possession of the manor or  not he be consider with respect to the continuance of the tenant estate as  Lord during his life the appellant also prove and exhibit several indenture  between the lord and tenant of the neighbour brown er p manor for reduce the  fine from arbitrary to certain wherein the like covenant and agreement be  insert as in the before mention indenture of on the that of June the cause  come on to be hear before the Lord chancellor Talbot when after long debate of  the matter his lordship refuse to admit the appellant exhibit as evidence and  declare he see no cause to give the appellant any relief in equity and  therefore order that the matter of the appellant bill shall from thenceforth  stand absolute dismiss but without cost the appellant therefore appeal from  this decree insist I will d rider that he have prove and that there be no  evidence to the contrary on the part of the respondent that by the general  custom of all customary manor a general fine be due on the death of the last  general admit Lord whether he die seize or not that from the recital in the  indenture of it appear to have be the clear intent of the party not to vary  but to establish the custom of tenantright estate in every respect except what  relate to the certainty of fine and the particular day of pay they after they  arise and one principal intent of those deed be thereby express declare to be  to confirm for ever the tenant estate accord to the custom of tenantright and  in all point as have be accustom without any violation or alteration thereof  save only that the fine and gressoms may from thenceforth become certain and  know for the avoid of suit which be the only exception there mention that the  word in the covenant part of these indenture which be insist on to vary the  custom I e on the change of the Lord for the time be by death only be  synonimous and equivalent expression with the word in the recital I e on the  death of the Lord only and therefore as there be no difference brown in the  sense of these expression it necessary follow that the original custom touch  the occasion on which general fine arise be not alter or control by this  phrase but the respondent have make a distinction where there be no difference  and have endeavour under that colour to abrogate the ancient custom that the  meaning of the word be best understand by those who live among these customary  manor and be acquaint with the nature of the estate and the language of the  country where they lie and accord the appellant witness full prove that the  last general admit Lord be notwithstanding his alienation consider in respect  to the continuance of the estate of the tenant as the Lord for his life and  this meaning be confirm by the sense universal put upon the same word in deed  of the same tenor respect other tenantright manor for which reason it be  apprehend that those other deed shall have be permit to be read in order to  complete the evidence of the witness who speak to the practice and usage the  best interpreter of the word in other manor where the like deed have be make  that the nature of the tenure can not by law be vary or any new tenure  establish by any agreement between the lord and tenant since both their right  be find on custom only and whatever agreement may subsist between the party  the Lord can never enter for a forfeiture and gain a legal right to the estate  for a tenant not pay a fine upon a contingency different from the custom which  therefore in law neither determine the estate or give a right to the fine on  the other side it be say I Verney n fazakerley that the foundation of the  appellant bill be that before the indenture of the custom of the manor be that  a general fine be Payable upon the death of the last general admit Lord  whether he die in possession or not and yet if those indenture be out of the  case and this pretend custom ought now to be inquire into there be not  sufficient evidence in the cause to support it but if there be any doubt or  uncertainty as to the custom of these manor before the indenture of in  relation to the payment of a general fine yet such custom be explain fix and  settle by those indenture and the decree confirm they the general fine be  thereby agree and establish to be due and Payable on change of the Lord for  the time be by death only and not otherwise which word Lord for the time be be  make use of in the indenture in contradistinction to the term or expression of  the last general admit Lord which be a expression as well know and use at the  time of make the indenture as the word Lord for the time be and as those  indenture be enter into upon a valuable consideration pay by the tenant and  for prevent all dispute touch the general fine as well as for ascertain the  brown er p same for the future it be submit that lose and uncertain evidence  ought not at this great distance of time to be set up to overturn the plain  word brown and meaning of the indenture and to make the custom thereby  establish precarious and uncertain after hear counsel on this appeal it be  order and adjudge that the decree therein complain of shall be reverse and it  be declare that the appellant become entitle to a general fine upon the death  of the late duke of wharton and that the respondent ought to pay the same in  respect of their customary estate hold by they accord to the rate specify in  the several indenture of August and September and it be further order that it  shall be refer to a master of the court of chancery to inquire whether the say  fine so Payable by the respondent have be right assess and to state the same  and if they have not be right assess then the master be to take a account what  the same amount to accord to the say indenture and the same be to be pay by  the respondent to the appellant and that the say court shall give further  direction in pursuance of this order jour vol p custom OF London