case sir sewster Peyton Bart appellant Burgundy brown respondent the appellant  state that sir Algernon Peyton his father have marry Frances daughter of sir  Robert Sewster and be seize in possession of the manor of Doddington l per and  and in reversion after the end of a lease of one and twenty year to expire at  Michaelmas of the manor of Coldham l per and but during that lease only l per  and and have two child appellant five month old and whether a year and a half  old and his wife be encient he that may by his will devise to his lady dame  Frances a annuity of l per and for her life Payable out of those two manor and  land belong Colles and give l to his daughter whether and l to the child his  wife then go with Payable at twentyone or marriage both to be raise out of the  profit of those estate and will that his wife receive the profit during sir  Sewsters minority and after till the portion raise to pay herself the l per  and and then for sir Sewsters education and maintenance as she shall think fit  not exceed l per and till fifteen year old and after that l per and and after  that the young child portion and the better to enable his wife to be kind and  liberal to his child give her all his good chattel and personal estate and  make her executrix and die two day after and the lady enter upon Doddington  and receive the profit and the reserve rend of Coldham and she possess the  personal estate and in October marry John Skelton Esq who in her right possess  the whole real and personal estate and they continue the receipt of all the  profit thereof sir Robert Sewster appellant maternal grandfather be seize of  the manor of great ravely and other land in Huntingdonshire of near l per and  by his will that January give the same to dame whether his wife for life and  after to appellant his grandson charge with l for his wife and die that month  and his wife die the same week intestate and lady Peyton and Skelton have  administration to her and as guardian to appellant enter on ravely and receive  the profit thereof also and on pretence of arrear of the l annuity debt of sir  Algernon tax and other outgo Skelton and lady that may exhibit a bill against  sir Sewster then not five year old to have their account of Doddington and  Coldham settle and in four day have a answer put in for sir Sewster by a  guardian of their own nomination and in Trinity exhibit a cross bill in sir  Sewsters name by such guardian against themselves which in a Colles er p few  day they answer annex account of their receipt and payment but take no sort of  notice of ravely estate and have publication pass as by consent and that  October have both cause hear and a account direct of skelton receipt and  payment touch the real and personal estate of sir Algernon Peyton and also a  yearly account from thenceforth so long as the trust under his will shall  continue and also a account of what appear due to Skelton and his wife and  this the land Colles in possession and reversion be to stand charge with  accord to the will and saint December the master report that the personal  estate of sir Algernon be l S d and payment relate to it l S so that that  estate be in disburse l S d pound s d That the rend of the real estate to  ladyday amount to234253And the payment relate to it and maintenance of sir  Sewster at l per and so remain of that estate pound which be apply to pay the  lady be annuity of l there remain still due to her and Skelton accord to that  account l S d which report be confirm without objection that account be take  just as Skelton and his lady please and that and that November Skelton and his  lady mortgage that account and their l per and annuity to sir John Tracy for l  and interest to be pay in three year and that February the master at the like  instance of Skelton and wife make another report take the account to  Michaelmas and report then due to they l S d and on the very next day a order  be make as by consent of council on both side to confirm that report sir  Sewster be still a infant and in all these account no notice what ever be take  of ravely estate though Skelton and wife have be in possession of it four year  and have receive thereout near l and same day saint February respondent brown  lend Skelton and lady l the money now in question of which l be pay to the  lady Tracy executrix of sir John Tracy upon his assign his security to brown  and l to Skelton and lady upon their join with the lady Tracy and also assign  over the l charge by sir Robert Sewster on ravely estate upon a proviso to be  void on pay the l at four year end and interest in the mean time and make a  letter of attorney to sue for and recover the l in order to pay the l and  interest with covenant to pay and brown have also a statute of Colles l from  Skelton as a further security all which be do at the same time appear to be do  with a design to load the Doddington and Coldham estate and to let Skelton go  away with the profit of ravely though brown mortgage take notice of that  estate and include l charge upon it and that February brown agree to continue  the money a year long and in Trinity term lady Peyton die brown have permit  her and her husband to continue possession all that time in Michaelmas term  brown exhibit his bill in chancery against Skelton and appellant to have his  money out of the land and appellant by his guardian exhibit his bill against  Skelton and brown for the write of his estate and for account of the profit of  all the estate and that February both cause be hear at the roll and a decree  for brown to have his money interest and cost out of the estate and Skelton to  account but the account previous to the master report not to be ravel into and  he to be allow for maintenance of the young child and that December on a  rehear the same order in effect be make brown be to be pay as far as the l and  interest will extend but by that order appellant have leave to amend his bill  touch omission and over charge in skelton account and otherwise as council  shall advice and accord in Hillary appellant amend his bill charge diverse  rend omit out of the master report and a overcharge of l for two year  maintenance of appellant while he be at his grandfather and charge that brown  be well acquaint with the nature and contingency of his security and be desire  to Colles er p call in his money and to enter and not let Skelton receive the  rend and that brown have for gratuity give he permit Skelton to continue  possession and in November brown to that bill plead the former decree and  plead and that July and that June the plea be argue before the late lord  commissioner and order to stand for a answer and the benefit save to the hear  and the cause to proceed to hear and the former deposition by consent to be  make use of and that June and that February the cause be hear and the plea  reargued before the chancellor who confirm the order of that December declare  that the profit receive by Skelton and Colles wife out of the Peyton estate  but not ravely must be apply to sink brown debt and allow brown plea to the  amend bill so that appellant have no relief for the omission and overcharge  nor for the profit of ravely estate amount together to about l and must beside  pay brown l interest and cost Skelton have go beyond sea and leave nothing to  answer but leave appellant indebt for maintenance l which appellant have pay  since beside many other sum for his school and education while Skelton and  wife receive the profit of his estate and appellant insist that if this  account shall not be open it will be in the power of any guardian to defeat a  infant of half the profit of a estate for interest be to be charge for the l  without discount of the profit of both estate which will have sink the  principal and further insist that brown ought to stand in the place of Skelton  and be Accountable for the profit of ravely and that Skelton receive the  profit of both estate of the infant both ought to go to alleviate any debt of  the infant to he as the arrear of the l per annuity be and he ought not to  have sell or mortgage the debt to he upon Doddington and Coldham to defeat the  infant of what be due from he upon account of ravely estate and appellant  further insist that maintenance ought not to be allow young child when the  estate be not Chargeable with it by the will but only with the portion to be  raise out of the profit and the mother have so large a provision may well  maintain two young child and further insist that the plea ought not to have be  allow but a answer ought to be make to the amend bill especial as to the  omission overcharge and gratuity and that as matter of account only be decree  in the first cause in the objection of publication of former proof ought not  to prevail and further insist that cost ought not to have be give in this case  be at best a fraud which the other side insist be too hard for a court of  equity and appellant pray that the account may be open and a discovery make of  the omission overcharge and gratuity and a account give of both estate and  that brown shall stand in skelton place to all intent and purpose his mortgage  be of a new nature Colles the respondent agree as to the will of sir Algernon  Peyton and sir Robert Sewster but state that after the death of sir Robert and  of lady Sewster dame Frances Peyton take out letter of administration to lady  Sewster her mother and thereby become entitle to the legacy of l charge on  ravely and that dame Frances appellant mother be his guardian and receive the  profit of his father estate and marry Skelton who with his say wife exhibit  their bill against the appellant as state by he and that a cross bill be  exhibit by appellant and that the cause be hear and a account decree to be  take of skelton receipt and disbursement touch sir Algernons real and personal  estate and a yearly account at every Michaelmas so long as the trust continue  and agree with appellant as to the account take and the mortgage to sir John  Tracy and subsequent report and mortgage to the respondent but further state  that at Michaelmas the lease of the manor of Coldham expire and that estate  which before be but l per and become l per and and that after the death of  skelton wife respondent exhibit his bill against Skelton and appellant and  appellant exhibit his bill against the respondent and Skelton as state by  appellant but appellant assign no particular error in the account state nor  any fraud against respondent and strew the decree pronounce in both cause and  that appellant have obtain a rehear and the decree thereon whereby respondent  be to be liable to all the receipt of Skelton and wife out of the say estate  since the master report and appellant council allege his bill defective as to  several charge and omission in the account take by the master Colles er p he  have liberty to amend his bill and with these alteration the former decree be  order to stand and that appellant amend his bill but it be after publication  and hear the respondent put in a plea thereto and the cause be hear that  February the chancellor then declare that the profit receive by Skelton and  wife out of the Peyton estate but not these receive out of the Sewster estate  must be apply to sink respondent debt and that the decretal order of the that  December shall stand but if the respondent shall insist to have the benefit of  the legacy of l so give by sir Robert Sewster then the profit receive by  Skelton and wife out of sir Robert estate Colles be to come in account so far  only as to sink the demand of the l legacy and respondent say plea be allow  and the register have mistake the court as to the direction in the last order  of not give cost although by the last order the former order of the that  December whereby cost be give to respondent be to stand respondent petition  for a rehear touch cost only and the cause be reheard that December and  appellant council hear thereto and the court decree respondent his cost of  these suit and respondent insist such decree be accord to the rule of equity  and that respondent who good fide lend l near twenty year since shall be repay  the same with interest and cost as all mortgage ought and after the respondent  who have be twelve year in recover a just debt and have three decree shall at  last be at peace and pray the decree may be affirm wm Dobyng die March that  February upon hear council on both side on the petition and appeal of sir  Sewster Peyton from several decree and order of the chancery in several cause  between Skelton and wife plaintiff and appellant by his guardian defendant and  e contra and between brown plaintiff and appellant and Skelton defendant and  between appellant by his guardian plaintiff and brown and Skelton defendantsIt  be order and adjudge by the lord that the say several decree and order of the  court of chancery shall be reverse so as that brown shall stand in the place  of Skelton and wife to account for the rend issue and profit as well of the  manor of ravely as of the manor of Coldham and Doddington receive since the  death of sir Algernon Peyton and sir Robert Sewster respective in order to  satisfy the money due to brown and that the account state in the court of  chancery in and be lie open for that purpose and that the court of chancery  give direction accord lord journ vol xvi Smallman v brain Collles er report  date Colles case William Smallman and thomas gregory appellant Burgundy brain  and richard walker respondent the appellant state that respondent as lessee of  the bailiff and burgess of Bridgnorth in the county of Salop of certain mill  call Pendastons mill bring their bill in the exchequer against appellant to  compel they to grind all corn and grain use in their house at say mill on  pretence of a custom that all baker brewer resident burgess and other  inhabitant of say town have use and of right ought to grind all corn and grain  spend and use in their house at say mill and not elsewhere and pray a  discovery of the quantity of corn and grain appellant have so use within the  time state in the bill and that appellant may in future be compel to grind all  corn and grain use in their house at say mill and appellant by their answer  deny the custom and insist that foreign miller public come into town at all  time and carry away the ground and grist of the burgess and other inhabitant  time out of mind to be ground at other mill and bring the same back public  when ground without interruption especial when by extortion and delay the  inhabitant be ill use at respondent mill which appellant have frequent be to  their great damage and witness be examine on both side the cause be hear in  the exchequer chamber that November and a trial at law direct at the then next  assize of Salop to try whether any such custom as allege by respondent which  appellant be ready to have try but the respondent Colles er p decline a trial  at law know they can not prove their pretend custom by witness to be examine  viva voice and that the great part of appellant witness have not be examine  because they conceive the proof make sufficient to induce the court to direct  a trial as in like case but that February upon the respondent motion and  petition they obtain a order for rehear and d July last the cause be reheard  and it be then decree that the pretend custom shall be and be thereby ratify  and establish without any Colles trial at law and that appellant and all claim  under they shall from thenceforth during respondent term pay their suit and  soak to the say mill and grind all corn grain and malt consume and use in  their house in the say town at respondent mill and not elsewhere and that in  case respondent shall not grind same in forty eight hour after it shall be  bring to the mill then appellant be at liberty to take it away and grind it at  any other mill at their pleasure which decree appellant insist be erroneous  for that the custom ought to have be previous try as it be in this very case  direct upon the first hear it appear on the face of the say decree to be a  controvert custom and because many of the appellant witness be reject because  they be townsman and appellant imagine townsman as good witness for they as  for the respondent omit examine above sixty very old witness not townsman who  will have falsify the pretend custom and further because all custom be proper  triable at law by a jury of the neighbourhood before they can be establish by  a court of equity especial in a matter against common right as this suppose  custom be and because by this decree no provision be make to oblige respondent  to grind their corn well and take reasonable toll and by this decree the  appellant must leave their corn forty eight hour to be ground at these mill  though they want bread and appellant pray that the decree may be reverse and a  trial at law direct to try the custom and submit that if respondent have such  a custom it must be so find by a jury and respondent will have their cost  against appellant and so can receive no prejudice by a trial on the contrary  it will be bind to appellant for ever and consequent a mighty mischief and  prejudice to all the inhabitant of that great town James Sloane Edmund bridge  the respondent on the other hand state that king Henry the three by letter  patent date June royal power Himself grant inter alian unto the burgess of  Bruges now call Bridgnorth in the county of Salop and their heir for ever that  they and their heir shall have to feefarm the mill of Pendaston without the  say town upon the river Wurg now call Worffe with the suit of say town and all  other appurtenance render to the crown ten pound per and Payable at the  exchequer at Michaelmas and easter and that this Colles grant have be confirm  by several succeed king and that the burgess become seize of the say mill with  the suit thereof subject to the say feefarm rend and have ever since enjoy it  and that respondent be ancient tenant of the mill the bailiff and burgess in  consideration l fine and l per and rend by indenture date d march demise the  say mill be four water corn mill under one roof call Pendaston mill together  with suit to the say mill of all manner of corn mulcture and toll of all the  inhabitant of the say town to hold to respondent for twentyone year under the  rend and covenant therein express and in particular under one special covenant  that respondent shall make satisfaction to the inhabitant for all damage to be  sustain in grind their corn by respondent at say mill on oath of the party  grieve or other sufficient witness and sew that the miller servant be all  swear to be just and true to the suitor and that Pendaston mill be good mill  and keep in good repair by respondent and will grind all the corn and grain of  all the inhabitant of the say town in due time and that respondent keep man  and horse sufficient for the purpose of the mill and that appellant though  resident burgess of the town withdraw their suit from say mill and send their  corn and grain to other mill whereby respondent lose the benefit of such toll  which if permit all other the inhabitant may do so whereby respondent will be  defraud of their just right and disable to pay the feefarm rend to the crown  and the improve rend to the say town and to keep the mill in repair and that  therefore respondent bring their bill against appellant to confirm the custom  and Colles er p compel appellant to grind at and do their suit to the say mill  and appellant answer and witness be examine and the cause hear two of the  baron only be present and a issue be direct to try the custom and respondent  council think they have a full proof for a decree without a trial and have  omit to read several of their witness petition for a rehear which be order and  the cause be reheard before sir Edward ware chief baron sir Nicholas Lechmere  sir Littleton powys and sir Henry Hatsel baron and on full examination the  whole court declare they be full satisfy that there be such a custom and that  there be no ground for a trial at law and confirm the Colles say custom but  direct it to be insert in the say decree that if any of the inhabitant shall  bring corn or grain to the say mill to be ground and that it shall not be  ground in forty eight hour that then such person shall be at liberty to take  away such corn and grain and grind it elsewhere as in many like decree have be  use Q do not this latter part of the decree introduce a new custom die Jupiter  of purifying after hear council on this appeal it be order and adjudge by the  lord that the petition and appeal be dismiss and the decree complain of affirm  lord journ vol xvi