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this agreement, Mr. Muschamp, by a separate instrument, dated the 24th of May 1685, released each particular tenant [152] from all quit-rent, and other services, due to him as lord of the manor; and the tenants, by another instrument of the same date, under their hands and seals, consented to the inclosure, and released all their right of common in the ground so to be inclosed.

Soon afterwards, Mr. Muschamp set about making this inclosure; but the hedges being privately thrown down, and other obstructions happening, he relinquished the design: so that the tenants of the manor continued to enjoy their right of common, and to pay their quit-rents, and do suit and service at the lord's courts, in the same manner as if no such agreement had ever been made; but the instruments which had been reciprocally executed, in consequence of that agreement, were neglected to be cancelled.

In 1701, Mr. Muschamp sold and conveyed this manor to the appellant; whereupon the several tenants, and particularly the respondent's father, paid their quit-rents to her, and did suit and service at her courts, as lady of the manor, for many years, without any objection.

But the respondent having, upon his father's death, become entitled to his farm called Green Dean, suffered the quit-rent to run in arrear; and therefore, in July 1716, the appellant caused a distress to be made for the amount of the arrears. Whereupon the respondent replevied, and having found the release executed to his father, by Mr. Muschamp, upon the occasion above-mentioned, he pleaded the same in bar of the appellant's avowry; so that judgment was given against her, with damages and costs.

The appellant being hereupon advised to seek relief in a court of equity, she accordingly exhibited her bill in Chancery against the respondent, for payment of his quit-rent for the time past and to come; and that he might be compelled to do his suit and services at the courts of the said manor, as the other tenants did.

To this bill, the respondent pleaded the said agreement between Mr. Muschamp and his father, and the said release; and by his answer, he denied the equity of the bill. The plea was argued and allowed; and the answer being replied to, and witnesses examined, the cause was heard on the 4th of July 1719, before the Lord Chancellor Parker, when the court thought fit to order, that the bill should stand dismissed with costs.

From this decree the plaintiff appealed; insisting (T. Lutwyche, R. Raymond), that it fully appeared by the proofs in the cause, that the agreement between Mr. Muschamp and his tenants had been mutually waived, and that each party fully enjoyed their respective rights as before. That the respondent's father, in particular, did constantly afterwards until his death, pay his quit-rent, and do suit and service, and put sheep and cattle upon the common without interruption; and though he lived 25 years after the agreement, he never set up or insisted upon the release. And that the respondent himself had [153] allowed a payment made by his tenant for a relief, and never insisted on the release till after the distress.

On the other side it was contended (J. Ayloffe, C. Talbot), that the agreement was made at the instance and desire of Mr. Muschamp, and to promote an advantage which he proposed to himself from the intended inclosure; that it was accordingly executed between the parties by proper conveyances, whereby the tenants right of common, and the lord's title to the quit-rents and services, were mutually extinguished; and that therefore the several proceedings, both in law and equity, touching the right in question, were well founded, and ought to be confirmed.

But after hearing counsel on this appeal, it was ordered and adjudged, that the decree therein complained of should be reversed: and it was further ordered, that the respondent should deliver up the release, executed by Ambrose Muschamp, to the respondent's father, dated the 24th of May 1685; and that the other release of the same date, executed by the respondent's father and others, to the said Muschamp, should be cancelled, as to the respondent; and that the respondent should account with and pay to the appellant the arrears of the quit-rent in question; and that the messuage, farm, and lands in the bill and answer mentioned, called Green Dean, should be, and continue for ever thereafter, charged and chargeable with the payment of the said quit-rent, and with the performance of all the other services, which the same were subject to before the said releases; and that the