Page:The English Reports v1 1900.pdf/1077

manors, for reducing the fines from arbitrary to certain, wherein the like covenants and agreements were inserted, as in the before mentioned indentures of 1613.

On the 17th of June 1734, the cause came on to be heard before the Lord Chancellor Talbot; when, after long debate of the matter, his Lordship refused to admit the appellant's exhibits as evidence, and declared he saw no cause to give the appellant any relief in equity; and therefore ordered that the matter of the appellant's bill should, from thenceforth, stand absolutely dismissed, but without costs.

The appellant therefore appealed from this decree, insisting (J. Willes, D. Ryder), that he had proved, and that there was no evidence to the contrary on the part of the respondents, that by the general custom of all customary manors, a general fine was due on the death of the last general admitting Lord, whether he died seised or not. That from the recitals in the indentures of 1613, it appeared to have been the clear intent of the parties not to vary, but to establish the custom of tenant-right estates in every respect, except what related to the certainty of fines, and the particular days of paying them after they arose; and one principal intent of those deeds was thereby expressly declared to be, to confirm for ever the tenants estates, according to the custom of tenant-right, and in all points as had been accustomed, without any violation or alteration thereof; save only, that the fines and gressoms might from thenceforth become certain and known for the avoiding of suits, which was the only exception there mentioned. That the words in the covenanting part of these indentures, which were insisted on to vary the custom, i.e. on the change of the Lord for the time being by death only, were synonimous and equivalent expressions with the words in the recital, i.e. on the death of the Lord only; and therefore, as there was no difference [456] in the sense of these expressions, it necessarily followed, that the original custom, touching the occasion on which general fines arose, was not altered, or controuled by this phrase; but the respondents had made a distinction where there was no difference, and had endeavoured, under that colour, to abrogate the ancient custom. That the meaning of the words was best understood by those who lived among these customary manors, and were acquainted with the nature of the estates, and the language of the country where they lie; and accordingly the appellant's witnesses fully proved, that the last general admitting Lord was, notwithstanding his alienation, considered in respect to the continuance of the estate of the tenants, as the Lord for his life: and this meaning was confirmed by the sense universally put upon the same words, in deeds of the same tenor, respecting other tenant-right manors. For which reason it was apprehended, that those other deeds should have been permitted to be read, in order to complete the evidence of the witnesses, who spoke to the practice and usage (the best interpreter of the words) in other manors, where the like deeds had been made. That the nature of the tenure could not, by law, be varied, or any new tenure established, by any agreement between the Lords and tenants, since both their rights were founded on custom only; and whatever agreement might subsist between the parties, the Lord could never enter for a forfeiture, and gain a legal right to the estate, for a tenant's not paying a fine upon a contingency different from the custom; which therefore, in law, neither determined the estate, or gave a right to the fine.

On the other side it was said (J. Verney, N. Fazakerley), that the foundation of the appellant's bill was, that before the indentures of 1613, the custom of the manors was, that a general fine was payable upon the death of the last general admitting Lord, whether he died in possession or not and yet, if those indentures were out of the case, and this pretended custom ought now to be inquired into, there was not sufficient evidence in the cause to support it. But if there were any doubt or uncertainty as to the custom of these manors before the indentures of 1613, in relation to the payment of a general fine, yet such custom was explained, fixed, and settled by those indentures, and the decrees confirming them; the general fine being thereby agreed and established to be due and payable on change of the Lord for the time being, by death only, and not otherwise; which words [Lord for the time being] were made use of in the indentures, in contradistinction to the term or expression of [the last general admitting Lord], which was an expression as well known and used at the time of making the indentures, as the words [Lord for the time being]: and as those indentures were entered into upon a valuable consideration paid by the tenants, and for preventing all disputes touching the general fine, as well as for ascertaining the