brown case duke OF Grafton appellant thomas Horton respondent that march Mews  dig go see walker v Lord Abingdon l I n S Ch the heir at law of I S who be the  last of three life name in the grant of a copyhold estate bring a bill against  the lord of the manor to be admit to the estate for his own life and the life  of two other person who he shall nominate allege the custom of the manor so to  be the defendant by his answer deny the existence of any such custom and  insist that he be not by law oblige to renew the copy of any tenement hold of  the manor otherwise than at his own free election and pleasure the court on  the hear direct a issue to try the custom but on a appeal this order be  reverse and the bill dismiss the appellant upon the death of Catherine queen  dowager of England by virtue of letter patent grant by his majesty king  Charles two become seize in tail male of manor of Potterspury and Moreend  parcel of the honour of Grafton in the county of Northampton with remainder  over the reversion in fee be in his majesty his heir and successor and the  lord or lady of this manor for the time be frequent demise or grant at their  will and pleasure several tenement brown er p within the same by copy of court  roll for three life and upon such fine as they think fit Thomas sergeant alias  Hugh and Ann his daughter who have marry Thomas Horton be seize of a message  and the land thereto belong call penny land and pinfold land lie in yardly  Gobion within the say manor which have be former demise or grant by copy of  court roll for three life and one of they be dead the say Thomas sergeant and  Ann his daughter at a court baron hold for the say manor on the that of  February surrender the say premise into the hand of the queen to the intent  that the say Thomas sergeant and Thomas Horton and Ann his wife may have the  same to the use of they for their life and the life of the long liver of they  successive accord to the custom of the say manor and at the same court they be  admit tenant accord to hold for the say three life at the will of the lord  accord to the custom of the manor by fealty suit of court and the yearly rend  of pound S d and a fine of pound be pay for add the life of the say Thomas  Horton in the copy in October Thomas sergeant die whereupon Thomas Horton come  into possession and at a court baron hold for the same manor on the d of  August Horton and his wife surrender the premise into the hand of the queen to  the intent that they and John their son may have the same to the use of they  the say Thomas Horton and Ann his wife and of John their son for their life  and the life of the long liver of they successive accord to the custom of the  manor and at the same court they be admit tenant accord and pay a fine of  pound for add the life of the say John Horton in the copy brown Ann Horton die  in in October Thomas her husband die and John Horton who be the last life in  the copy die in may upon who death the premise revert and of right belong to  the appellant as lord of the manor and therefore he deliver a ejectment to  recover the possession in Trinity term the respondent as son and heir of the  say John Horton exhibit his bill in chancery against the appellant state inter  alian that within the say manor there be and time immemorial have be several  land and tenement hold of the lord and lady of the say manor for the time be  by copy of court roll which time out of mind have be grant or grantable by the  say lord or lady to three person for their life and the life of the survivor  of they successive upon the surrender and at the instance or nomination of any  tenant or tenant thereof into the hand of the say lord or lady to the intent  that any three person in and by such surrender or surrender nominate shall  have the same out of the hand of the say lord or lady and that such three  person so nominate have be and ought thereupon to be admit or the same to they  grant pay to the lord or lady of the manor for the time be a reasonable fine  for the same That for time immemorial by the custom of the say manor when and  so often as it have happen that all the person name in any such copy have die  without make any new nomination of other person or person then the heir or  heir at law of the survivor of such person have nominate or have right to  nominate three person to who the lord or lady of the manor for the time be  have grant such copyhold tenement for the life of such three person and the  survivor of they and they have be accord admit thereto pay a reasonable fine  for the same accord to the custom of the say manor The respondent then state  that as heir at law of the say John Horton his father he have a right to  nominate three life or person to who the premise shall be grant that he have  apply to the appellant to admit three person to the say premise for their life  and the life of the long liver successive and that he be ready to nominate  three such life and to observe the custom of the say manor and pay the usual  fine and fee heriot and other duty incumbent on he but that the appellant have  refuse to make any such grant or admittance and therefore the bill pray that  the appellant may be oblige to admit the respondent and such other two person  as he shall nominate to the say premise upon his pay the customary fine and  fee and perform such duty and service as be incumbent upon he by the custom of  the say manor and that a injunction may be award to stay the appellant proceed  at law the appellant by his answer to this bill insist that there be not any  custom brown er p within the manor whereby upon the death of any life name in  a copy the lord of the manor for the time be be oblige to fill up the same and  that by law he be not oblige to renew any copy of any message land or brown  tenement hold of the say manor otherwise than at his own free election and  pleasure and that he be not compellable to admit any person to be tenant of  his manor upon such surrender as be in the bill suggest but that such  admittance be pure a discretionary act at the will of the Lord because the  fine to be pay by every tenant of the manor upon his admittance be by the  custom of the manor mere arbitrary and at the will of the lord or lady of the  manor for the time being That there be no such custom as be state by the bill  touch the heir or heir at law of a survive tenant have a right to a new grant  but that in case all the person name in any copy happen to die then the estate  or estate grant and hold by such copy do revert to the lord of the manor and  that no new admittances or grant have at any time be make in such case  otherwise than at the will and pleasure of the lord or lady of the manor for  the time be by a order make in the cause on the that of may after the  appellant answer be put in it be order that the injunction former grant shall  be continue till the hear and the respondent be by consent to account for the  rend and profit of the premise and to deliver possession of the same as the  court shall direct at the hear of the cause the respondent afterward amend his  bill and thereby vary the custom state in his original bill by allege that  instead of a reasonable fine Payable upon renewal the fine be one year and a  half of the improve rend of the copyhold premise if insist upon by the lord or  lady of the say manor for each and every of such life or life or lesser sum if  they think fit to accept thereof together with S for a heriot the appellant by  his answer to this amend bill insist that the pretend custom therein suggest  be not sufficient certain nor warrant by the rule require by law in case of  custom after witness have be examine and publication pass the cause be hear  before the Lord chancellor king on the that of may when it be order that a  trial shall he have at the then next assize for the county of Northampton on  the follow issue videlicet saint whether the plaintiff Thomas Horton the son  and heir of John Horton the last life in the copyhold premise in question have  by the custom of the manor a right to renew or redeem the copyhold land in  question from the lord of the manor for three life dly if he have such right  whether the right of such redemption or renewal be on payment of one year and  a half improve rend for each of the three life or on any other term and what  and if there be any other term they be to be insist upon and the jury to  endorse the same on the postea and the trial be to he have by a special jury  and after the trial either side be to be at liberty to resort back to the  court for further direction and in the mean time the injunction be to be  continue from this order the duke appeal and on his behalf it be contend p  York c Talbot that the custom insist on by the respondent bill be brown  uncertain unreasonable and not warrant by the rule of law for by the original  bill the respondent insist that the custom be to fill up any copy or to grant  a new copy for three life at the instance of the heir of the survive life upon  pay a reasonable fine but by his amend bill he charge the custom to be upon  pay one year and a half of the improve rend if insist upon by the lord for  each life or a less sum if he think fit to accept of it and upon the hear of  the cause the respondent produce and read in evidence a presentment of the  homage at a court of survey hold for the say manor on the that of April to  prove the custom of the manor to be upon pay a year and a half of the reserve  yearly rend for each life upon a renewal or new grant but he do not produce or  give so much as a single instance of any of these pretend custom from the  court roll of the manor which upon the death of the queen dowager be deliver  to the auditor of his majesty land revenue and where they still remain and yet  accord to the second issue direct the respondent be leave at liberty to insist  at the trial upon all or any of these pretend custom or any other custom he  shall think fit to set up as the term of renewal although not put in issue in  the cause so that the appellant can not brown er p possible be prepare to make  a proper defence thereto upon the trial that the pretend custom insist on by  the amend bill be contradictory to the very copy of the court roll under which  the respondent derive his title for upon add the life of Thomas Horton his  grandfather in to the two life then in be a fine of pound be pay and upon add  the life of John Horton his father in August to the two life then in be a fine  of only pound be pay which full prove that the fine be arbitrary and at the  will of the lord and it appear by many instance in the court roll in the time  of the queen dowager that when any new copy be grant for life the same be do  by virtue of a particular warrant or precept from the queen trustee to the  steward of the manor and not mere by virtue of his office of steward that the  respondent have give no instance from the court roll that the homage upon the  death of the last life name in any copy have present the heir of the last  survive nominee or that proclamation have be make for such heir to come in and  be admit but accord to the pretend custom insist on by the respondent bill the  lord be oblige to fill up the copy upon the death of any life name therein or  to grant a new copy after all the life be dead for three new life when and at  such time as the copyhold tenant or the heir of the last survive nominee shall  think fit to demand the same pay one year and a half of the improve rend for  each life and yet the lord of the manor have no remedy to compel the copyhold  tenant or the heir of the last survive nominee to come in and be admit within  any certain time or otherwise than accord to the will and pleasure of such  heir which with respect to the lord seem to be brown very unequal and  unreasonable that if these pretend custom be to prevail they will in effect  turn copyhold estate for life into copyhold in fee and there seem to be no  more reason for such a demand than there will be against a ecclesiastical  person or a college to make a new lease of freehold land to a ancient tenant  or his representative because the land have be usual demise for life wherefore  it be hope that the order will be reverse and the injunction dissolve that the  respondent will be order to account for the rend and profit of the premise in  question and deliver possession thereof to the appellant and that after such  order shall be perform his bill will be dismiss on the other side it be argue  t Lutwyche W peer William that the court roll appear to have be very irregular  keep by the steward and as they be the tenant evidence this neglect be a great  misfortune to the respondent and the steward be appoint by the lord it will be  very hard that the tenant title shall be prejudice by the lord officer however  notwithstanding such negligence the respondent hope to prove upon the trial of  the issue that there be such custom entitle the tenant and the heir of the  survive tenant to renew as in the bill be state that though upon the trial  some custom may appear in favour of the tenant right of renewal and in some  measure variant from the custom before mention yet the respondent and the  other tenant of the manor ought to have the benefit of such custom and right  of renewal upon what term soever the same have be allow and though there may  be some presentment former make at a court hold for the manor which may vary  from the custom already insist on by the respondent yet the same be all of  they evidence that the heir of the survive tenant have some right of renewal  subsist in he by virtue of the custom after the death of the three life and  which ought to be try upon the present issue that a trial at law be proper  where the question be upon a custom there be no other way of try it but in  this manner for a copyholder have no other remedy to compel a admittance to a  copyhold but by a bill in equity and therefore to deny this relief or to deny  the trial of the custom of the manor when there be very few instance to be  show of such admittances will be to deny all kind of remedy whatever and prove  a very great hardship to the copyhold tenant of the manor but after hear  counsel on this appeal it be order and adjudge that the order therein complain  of shall be reverse and that the injunction shall be dissolve and it be  further order that the respondent shall account for the rend and profit of the  premise in question from the time of his entry thereon and that he shall  forthwith deliver possession thereof to the appellant and that the court of  chancery shall give proper direction for take the account pursuant to this  judgement and it be further order that the respondent bill brown shall brown  er p be dismiss after the account shall be take and the money due thereon pay  and possession deliver as before direct jour vol p corporation