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possibly be prepared to make a proper defence thereto upon the trial. That the pretended customs insisted on by the amended bill, were contradictory to the very copies of the Court rolls, under which the respondent derived his title; for, upon adding the life of Thomas Horton, his grandfather, in 1672, to the two lives then in being, a fine of £25 was paid; and upon adding the life of John Horton, his father, in August 1676, to the two lives then in being, a fine of only £10 was paid; which fully proved that the fines were arbitrary, and at the will of the lord. And it appeared, by many instances in the Court rolls, in the time of the Queen Dowager, that when any new copy was granted for lives, the same was done by virtue of a particular warrant, or precept from the Queen's trustees, to the Steward of the manor, and not merely by virtue of his office of Steward. That the respondent had given no instance from the court rolls, that the homage, upon the death of the last life named in any copy, had presented the heir of the last surviving nominee, or that proclamation had been made for such heir to come in and be admitted; but, according to the pretended customs insisted on by the respondent's bill, the lord was obliged to fill up the copy, upon the death of any life named therein, or to grant a new copy, after all the lives were dead, for three new lives, when and at such time as the copyhold tenant, or the heir of the last surviving nominee, should think fit to demand the same, paying one year and a half of the improved rent for each life; and yet the lord of the manor had no remedy to compel the copyhold tenant, or the heir, of the last surviving nominee, to come in and be admitted within any certain time, or otherwise than according to the will and pleasure of such heir; which, with respect to the lord, seemed to be [288] very unequal and unreasonable. That if these pretended customs were to prevail, they would, in effect, turn copyhold estates for lives into copyholds in fee; and there seemed to be no more reason for such a demand, than there would be against an ecclesiastical person, or a college, to make a new lease of freehold lands to an ancient tenant, or his representatives, because the lands had been usually demised for lives. Wherefore it was hoped, that the order would be reversed, and the injunction dissolved; that the respondent would be ordered to account for the rents and profits of the premises in question, and deliver possession thereof to the appellant; and that, after such order should be performed, his bill would be dismissed.

On the other side it was argued (T. Lutwyche, W. Peere Williams), that the court rolls appeared to have been very irregularly kept by the stewards, and as they were the tenant's evidence, this neglect was a great misfortune to the respondent; and the steward being appointed by the lord, it would be very hard that the tenant's title should be prejudiced by the lord's officer: however, notwithstanding such negligence, the respondent hoped to prove upon the trial of the issues, that there were such customs, entitling the tenants, and the heir of the surviving tenant, to renew, as in the bill were stated. That though, upon the trial, some customs might appear in favour of the tenant's right of renewal, and in some measure variant from the customs before mentioned, yet the respondent, and the other tenants of the manor, ought to have the benefit of such customs and right of renewal, upon what terms soever the same had been allowed: and though there might be some presentments formerly made at a court held for the manor, which might vary from the customs already insisted on by the respondent; yet the same were all of them evidence, that the heir of the surviving tenant had some right of renewal subsisting in him by virtue of the customs, after the death of the three lives, and which ought to be tried upon the present issues. That a trial at law is proper, where the question is upon a custom, there being no other way of trying it but in this manner; for a copyholder has no other remedy to compel an admittance to a copyhold, but by a bill in equity and therefore to deny this relief, or to deny the trial of the custom of the manor, when there are very few instances to be shewn of such admittances, would be to deny all kind of remedy whatever, and prove a very great hardship to the copyhold tenants of the manor.

But after hearing counsel on this appeal, it was ordered and adjudged, that the order therein complained of should he reversed, and that the injunction should be dissolved. And it was further ordered, that the respondent should account for the rents and profits of the premises in question, from the time of his entry thereon; and that he should forthwith deliver possession thereof to the appellant; and that the Court of Chancery should give proper directions for taking the account, pursuant to this judgment. And it was further ordered, that the respondent's bill [289] should