brown case sir John rous appellant John barker and other respondent d march  Mews dig two on a bill by the Lord of a manor pray a commission to ascertain  the boundary of a copyhold estate a issue be direct to try what copyhold land  be in the possession of the defendant but on a appeal this decree be reverse  and a commission of inquiry direct with a previous inspection of all deed  etcetera in the manor of Bedfield in Suffolk whereof the appellant be seize in  fee there be several freehold and copyhold tenement intermix out of which  several free rend and quit rend be yearly Payable to the Lord of the manor for  the time be and in this manor there be a immemorial custom that upon the death  or alienation of every copyhold tenant a fine accord to the yearly value of  the copyhold land and tenement be always pay and Payable to and at the will of  the Lord beside the quitrents and service in arrear James Mayhew the  respondent John Mayhew father be seize of several freehold land within the  manor and also of several piece of copyhold land hold of the same the copyhold  land contain in the whole fifteen acre and three rood and lie intermix with  and by a long unity of possession not to be distinguish from the freehold land  he on the that of October surrender into the hand of the appellant as Lord of  the say manor to the use of John Barker and his heir six piece of land contain  fifteen acre and three rood part of the say copyhold land describe by the  ancient name follow videlicet one acre of land call Freebornes three rood call  Gelyans two piece contain two acre lie in a close call Gelyans one other piece  in the same close contain one acre one other piece contain seven acre and one  other piece call Shraggs contain four acre subject to a proviso or condition  to be void on payment of pound upon the that of October then next and default  be make in payment of this sum accord to the condition the say John Barker be  admit tenant to the premise at a general court hold for the say manor on the  that of January upon which admission he pay a fine to the appellant as Lord of  the manor the say James Mayhew have about the time of the surrender mortgage  the remain part of his estate within the manor to the say John Barker and to  the respondent John house and Lucy his wife Charles ware William Powell and  mary his wife John Russell and Robert hence or those under who they claim the  mortgagee some time afterward enter upon all the freehold and copyhold estate  belong to the brown say James Mayhew within the say manor and depend upon the  impossibility of distinguish the copyhold from the freehold they refuse to  satisfy the appellant for the fine and quitrents due for the copyhold land in  the say John Barker die leave James Barker his son and heir who brown er p be  admit to the tenement and four acre call Shraggs but refuse to be admit to any  other part of the land to which his father be admit and die in some short time  after without be admit to any other of the say land whereupon the death of the  say James Barker be present by the homage three proclamation be make accord to  the custom at three general court hold for the say manor and no person come in  to be admit to the say copyhold land the steward award a seizure and direct a  warrant to the bailiff of the manor to seize into the hand of the appellant  such of the say copyhold land as the say John Barker be admit to and to which  the say James Barker refuse to be admit but the bailiff not be able to  distinguish or find out the ancient abuttals no seizure can be make whereupon  in order to make out the ancient landmark and boundary the appellant together  with the steward and several ancient copyholder of the manor do with the great  care and diligence upon view of all the estate of the say James Mayhew within  the manor and by inspection of the manor book endeavour to find out the  boundary but to no purpose the abuttals and boundary describe in the manor  book be either destroy or so chance and alter that they can not be discover  James Barker leave the respondent John Barker his son and heir he also refuse  to be admit to any part of the copyhold land former the estate of James Mayhew  to which John Barker his grandfather be admit except the say tenement and four  acre call Shraggs unless the appellant will set out and ascertain the meet and  boundary thereof which be not in his power to do the say James Mayhew be dead  leave the respondent John Mayhew his son and heir who as such become entitle  to the equity of redemption of the mortgage premise the appellant in  Michaelmas term exhibit his bill in the court of exchequer against all the  respondent pray a discovery of their deed and write and that a commission may  be award to set out ascertain and describe the copyhold land late of the say  James Mayhew to this bill the respondent put in their several answer and  thereby admit that sixteen acre part of the estate of Mayhew be in the  possession of the respondent Barker twentyfour acre other part thereof in the  possession of the respondent house and his wife or of Charles ware and Robert  hence as their trustee that twentyfour acre other part thereof be in the  possession of the respondent Powell and his wife and that the respondent  Russell be in possession of a tenement and ten acre brown of land other part  thereof under several mortgage make by the say James Mayhew The respondent  Barker by his answer say he do not know whether a close call Shraggs contain  about seven acre part of the say sixteen acre admit to be in his possession be  freehold or copyhold but say he be entitle to fifteen acre and three rood of  copyhold land by virtue of the surrender make by Mayhew to John Barker his  grandfather and insist that the appellant ought to set out and allot the  particular copyhold land to he before he be oblige to be admit and pay his  fine And the respondent Mayhew insist that he be heir at law of his say father  James Mayhew and as such entitle to the equity of redemption of the say  copyhold land the cause be at issue witness be examine on both side and  publication be duly pass the same be hear on the that of June before the Lord  chief baron Gilbert Mr baron price and Mr baron page when the court be please  to order and decree that it shall be refer to a trial at law to he have at the  next assize to be hold for the county of Suffolk upon the follow issue  videlicet whether any and what copyhold land be in the possession of the  respondent John Barker beside Shraggs and whether any and what copyhold land  be in the possession of the respondent Russell and it be further order that  the respondent John Mayhew may be a defendant in the say trial at law if he  shall think fit and that the appellant bill as to the other respondent shall  be dismiss with cost from this decree the appellant appeal and on his behalf  it be insist c Wearg t Lutwyche that the direct such a issue be give he no  proper relief he have by the proof in the cause sufficient ascertain that  James Mayhew and his ancestor be successive admit to the say fifteen acre and  brown er p three rood of copyhold land but by reason of the confusion in the  boundary he can not make legal proof of the particular abuttals thereof and  which ought therefore to be set out as near as may be by commissioner appoint  by the court upon a inspection of the deed and write relate thereto and by  compare the description therein contain with the land in the possession of the  several respondent and by other inquiry proper for such commissioner to make  but shall the appellant be refer to a issue at law for that purpose he must  for the above reason be whole destitute of relief in the premise that the  appellant bill ought not to have be dismiss as to the respondent house and  wife ware Powell and wife and hence or any of they for it appear that James  Mayhew be admit to and in possession of fifteen acre and three rood of  copyhold land and that all his freehold and copyhold land be in the actual  possession of those respondent and of the other respondent Barker and Russell  the court ought to have grant a commission to separate the copyhold from the  freehold and to distinguish brown the meet and bind of the copyhold and if the  exact boundary can not be find then to set out so much of the freehold in lieu  of the copyhold as may be a equivalent and all party shall have be direct to  produce their deed and write in order to find out the truth and the rather for  that in this case it ought to be presume that at least fifteen acre and three  rood of the land former in Mayhew possession be copyhold and not freehold and  to put it upon those derive under he to show that they be ancient freehold  last that refuse the appellant a commission be a precedent of dangerous  consequence and affect the lord of all the manor in England inasmuch as where  the boundary of copyhold land be so ancient or obscure as not to be without  great difficulty ascertain the lord of manor will in many case inevitable lose  their inheritance on the part of the respondent Barker it be contend p York t  brown that neither he or any of his ancestor or their tenant appear to have be  ever in possession of any land lie within this manor call by the name of  Freebornes or Gelyans or any other of the copyhold land describe in the  surrender to John Barker except the four acre call Shraggs nor do it appear  that James Mayhew be ever seize of any land either freehold or copyhold call  by the name of mouse or that this respondent or any of his ancestor ever make  any exchange with any of the other respondent or any other person or person of  land lie within the say manor or ever alter the ancient boundary thereof that  it be prove in the cause that all the land which the respondent Barker or any  of his ancestor be possess of in the manor contain no more than sixteen acre  in the whole whereof only four acre call Shraggs be copyhold the other twelve  acre call mouse be freehold but accord to the surrender make to Barker the  copyhold ought to contain fifteen acre and three rood that the respondent  Barker be always ready to be admit to the remain eleven acre and three rood of  copyhold land and to pay such fine as shall be reasonable set for the same  together with all arrear of quitrents provide the land be so set out and  describe as that he may be able to recover possession thereof he be also  Willing that a commission shall be award for this purpose and have so offer in  his answer to the appellant bill the respondent Barker therefore hope that if  the house shall be of opinion that a commission ought to be award to set out  these copyhold land it shall be at the appellant expense be for his benefit  and advantage and that as this respondent have be guilty of no concealment or  other default he shall have his cost and on behalf of the other respondent it  be argue c robin that the several land which they be in possession of be  mortgage or convey to the several person under who they respective claim not  as copyhold but as freehold land long brown before the pretend surrender from  Mayhew to Barker and the same have be ever since hold and enjoy accord that no  fraud or misbehaviour appear or be prove against these respondent or any of  they or those under who they respective claim either in conceal copyhold land  or in remove deface or destroy ancient boundary or landmark consequent the  appellant have no foundation in a court of equity for the relief pray against  they by his bill and the rather because they be purchaser of brown er p their  say land as freehold land for a valuable consideration and without notice that  any copyhold land be intermix therewith that the appellant have already have a  commission for the examination of witness to prove and support the pretend  equity of his bill and under that commission he may have examine to the  several matter for which he will now have another commission and so put the  respondent to double expense of the like nature for one and the same thing  that the trial at law direct by the decree be agreeable to the constant course  and practice of the court in like case and be to bind and determine the right  and inheritance of the land in question be the undoubted birthright of the  subject of this realm who ought not to be bind or affect in their right or  inheritance without a trial by a jury of their own countryman that the same  evidence may by order be produce and lie before a jury as can he have upon a  enquiry before commissioner and the jury be upon oath which the commissioner  be not it will undoubted determine they to make the more strict and impartial  inquiry concern the matter submit to their decision and therefore it be hope  that the decree will appear just and be affirm but after hear counsel on this  appeal it be order and adjudge that the decree complain of shall be reverse  and that the court of exchequer shall award a commission direct to such person  as they shall think proper to inquire whether all or any and which of the land  contain in the surrender make by James Mayhew on the that of October be in the  possession of all or any and which of the respondent and whether all or any of  the freehold land whereof the say James Mayhew be seize be in the possession  of all or any and which of the respondent and that the court shall direct that  the respondent shall have liberty to inspect the court roll and to take copy  as they shall think fit at their expense and that the respondent shall upon  oath within a convenient time to be appoint by the say court of exchequer  bring before and leave with the remembrancer of that court all such deed copy  write and other evidence relate to the matter in question as be in their  respective custody or power and that the appellant shall have liberty to  inspect they and take copy at his expense and that such of the say deed copy  write evidence and court roll as either side shall require within brown ten  day before the execution of the commission shall be produce at the execution  of the say commission and upon the return thereof the court of exchequer be to  make such further order thereon as shall be just A commission accord issue and  the return of it appear in Bunbury but on search the exchequer Chamber  minutebook No it appear that this return be on the that of October quash for  uncertainty and a new commission order I do not however find any subsequent  proceed in the cause jour vol p