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II BROWN.
LOWTHER v. RAW [1735]

[451] Case 3.—Robert Lowther,—Appellant; Michael Raw, and Others,—Respondents [24th April 1735].

[Mew's Dig. iv. 399; vi. 807. Fortesc. 44; see Rowe v. Brenton, 1828, 8 B. & C. 759.]

[In a dispute between the Lord of a manor and his tenants as to a custom, deeds between the Lords and tenants of neighbouring manors are admissible evidence to explain and support the custom.—By the custom of several manors in the counties of Cumberland and Westmoreland, a general fine becomes payable upon the death of the Lord. This is a good custom, even where the manor has been alienated by the Lord in his life-time.]

In the year 1613 Philip, Lord Wharton, and Sir Thomas Wharton, Knt. his son and heir apparent, or one of them, was seised in fee, and Lord of the several customary manors of Kirkby Stephen, Wharton, Nateby, Shapp, Tebay, Langdale, Bretherdale, Reagill, Sleagill, Longmarton, and Bampton Carhullan, in the county of Westmorland; in which manors were several customary messuages, lands, and tenements, holden of the Lord or Lords of the said manors respectively, as tenant-right, or customary estates of inheritance, descendible from ancestor to heir, according to the customs of the said manors respectively, on payment of fines or gressoms; on change of the Lord by death only, called general fines, and on change of the tenants by death or alienation, called dropping fines, and upon payment of certain ancient annual rents and boons, and on doing and performing suit and service at the courts holden for the said manors respectively, according to the respective customs thereof.

Both the general and dropping fines payable by the customary tenants of the said respective manors were formerly, and had, time out of mind, been reasonable arbitrary fines, at the will of the Lord for the time being, until the year 1613, when the said Philip, Lord Wharton, and Sir Thomas Wharton, in consideration of divers large sums of money paid them by several of the customary tenants of the said manors, and for avoiding the frequent differences and disputes which happened in relation to the payment of the said fines, came to an agreement with the several customary tenants touching the settling, fixing, and ascertaining, not only the quantums and reasonableness of the said fines and the time of payment thereof, but also touching the Lord, on whose death the said general fine should be payable: and thereupon by ten several indentures of agreement, every of them respectively bearing date in the months of August and September in the said year 1613, and respectively made and executed by and between the said Philip, Lord Wharton, and Sir Thomas Wharton of the one part, and several of the then tenants of the customary estates held of the said manors respectively of the other part; it was witnessed, that whereas the said customary tenants, parties to the said indentures respectively, and their several ancestors, or those whose customary estates they respectively had, time out of mind and then did severally hold to them and their heirs all the several messuages, lands, and tenements, with their appurtenances, in the aforesaid [452] manors, then being in the several occupations of the said tenants of the said manors, or of their several assigns, of the aforesaid Philip, Lord Wharton, and Sir Thomas Wharton, Knt. or one of them, and of their ancestors, Lords of the several manors aforesaid for the time being, by and according to the custom of tenant-right there used time out of mind of man, within the said several manors respectively, by the payment of certain annual rents, suit of court and services, for the said tenements and premises respectively, usual and accustomed; and by paying upon the death of the said Lord only, and change of the tenant by death or alienation, such reasonable fine, arbitrary and uncertain, as between the Lords and tenants for the time being, should or might be compounded for and agreed upon reasonably they the said Philip, Lord Wharton, and Sir Thomas Wharton, in consideration of several sums of money mentioned in the said several indentures, amounting together to £3651 3s. 7d. paid them by the said several tenants, parties to the said indentures respectively, and in consideration

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