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within the manor, whereby, upon the death of any life named in a copy, the lord of the manor for the time being was obliged to fill up the same; and that, by law, he was not obliged to renew any copy of any messuages, lands, or [286] tenements held of the said manor, otherwise than at his own free election and pleasure; and that he was not compellable to admit any person to be tenant of his manor, upon such surrender as was in the bill suggested; but that such admittance is purely a discretionary act, at the will of the Lord; because the fine to be paid by every tenant of the manor upon his admittance was, by the custom of the manor, merely arbitrary, and at the will of the lord or lady of the manor for the time being.—That there was no such custom as was stated by the bill, touching the heir, or heirs at law, of a surviving tenant having a right to a new grant; but that in case all the persons named in any copy happened to die, then the estate or estates, granted and held by such copy, did revert to the lord of the manor; and that no new admittances or grants had at any time been made in such cases, otherwise than at the will and pleasure of the lord or lady of the manor for the time being.

By an order made in the cause, on the 10th of May 1725, after the appellant's answer was put in, it was ordered, that the injunction formerly granted should be continued till the hearing; and the respondent was, by consent, to account for the rents and profits of the premises, and to deliver possession of the same, as the court should direct at the hearing of the cause.

The respondent afterwards amended his bill, and thereby varied the custom stated in his original bill, by alledging that, instead of a reasonable fine payable upon renewals, the fine was one year and an half of the improved rent of the copy hold premises, if insisted upon by the lords or ladies of the said manor, for each and every of such life or lives; or lesser sums, if they thought fit to accept thereof, together with 2s. for a heriot.

The appellant, by his answer to this amended bill, insisted, that the pretended custom therein suggested was not sufficiently certain, nor warranted by the rules required by law, in cases of customs.

After witnesses had been examined, and publication passed, the cause was heard before the Lord Chancellor King, on the 17th of May 1726, when it was ordered, that a trial should be had at the then next assizes for the county of Northampton, on the following issues, viz. 1st, Whether the plaintiff Thomas Horton, the son and heir of John Horton, the last life in the copyhold premises in question, had, by the custom of the manor, a right to renew or redeem the copyhold lands in question, from the lord of the manor, for three lives? 2dly, If he had such right, whether the right of such redemption or renewal was on payment of one year and an half's improved rent for each of the three lives, or on any other terms, and what? and if there were any other terms, they were to be insisted upon, and the jury to indorse the same on the postea. And the trial was to be had by a special jury; and after the trial, either side were to be at liberty to resort back to the court for further directions, and, in the mean time, the injunction was to be continued.

From this order the Duke appealed; and on his behalf it was contended (P. Yorke, C. Talbot), that the customs insisted on by the respondent's bill were [287] uncertain, unreasonable, and not warranted by the rules of law. For, by the original bill, the respondent insisted, that the custom was to fill up any copy, or to grant a new copy for three lives, at the instance of the heir of the surviving life, upon paying a reasonable fine; but by his amended bill, he charged the custom to he, upon paying one year and a half of the improved rent, if insisted upon by the lord for each life, or a less sum, if be thought fit to accept of it; and upon the hearing of the cause, the respondent produced, and read in evidence, a presentment of the homage, at a Court of Survey held for the said manor, on the 18th of April 1650, to prove the custom of the manor to be, upon paying a year and a half of the reserved yearly rent for each life, upon a renewal or new grant. But he did not produce, or give so much as a single instance of any of these pretended customs from the court rolls of the manor, which, upon the death of the Queen Dowager, were delivered to the Auditor of his Majesty's land revenue, and where they still remained; and yet, according to the second issue directed, the respondent was left at liberty to insist at the trial upon all or any of these pretended customs, or any other custom he should think fit to set up, as the terms of renewal, although not put in issue in the cause; so that the appellant could not