G. at

d. or d. fine, according to the old rent and no more, upon a descent, and a d. or at most a d. fine, according to the like custom of the said barony upon alienations was and ought to be taken. And your Orators expressly charge, that the same would appear by several ancient deeds, papers, and rentals, now, or lately in the custody of the said earl; and though the design of breaking the said customs has been formed, and proceedings and encroachments thereon have been gradually making for several years, yet the same was carried on with great secresy, by first assessing a d. fine, then proceeding to a d. fine, and so on, and never openly avowed till the lord and his steward had in a few instances raised the fine accruing to an extravagant number of years old rent, to be equal to one year's improved rent, and by which means imagined that all traces of the said ancient customs were utterly effaced, and incapable of being proved. And your Orators further charge, that though it should appear that more may have been assessed, that the same were never admitted to or paid, or if paid, the same were by some private agreement between the lord and tenant, and the overplus returned to the tenant; or if there are any instances where such fines were ever paid without such private agreement, they are but very few, in cases where the tenants were not able to contend with the lord, and rather chose to pay a small sum more than they were obliged to pay, than enter into a suit about the same; and that the practice was not so anciently, but is an innovation of the respective lords of the said manors and their stewards as aforesaid. And your Orators charge, as an evidence thereof, that there is no instance of more than a d. fine having been paid within many of the said manors till within years, or thereabouts, and that within that time, and within years last past, and less, there are great numbers of instances of fines paid not exceeding a d. fine. And your Orators further charge, that the said earl and his stewards, under such pretences as aforesaid, have lately, in great numbers of instances where the said tenants have alienated their customary estates, assessed and taken near years improved value of such estates for a fine, without any deduction or allowance for land tax or other outgoings, and without having or paying any regard to the great sums of money laid out by the said tenants in improving their said estates; aud that till the time of the said I. N., the said earl's present steward, no such excessive fines as are now demanded were ever assessed or paid, and before his time no more than years value was ever taken in any instance. And the said I. N. hath made merit of such his oppressions, by frequently declaring that he hath advanced the said fines £ a year, or some such large sum, higher than they ever were advanced before. And your Orators charge, great numbers of the tenants who have but small estates are by such means utterly ruined, in regard their estates having been so many centuries valuable, are now almost reduced to a footing with, and of little more value than, tenancies at will only. And your Orators further charge, that the said earl should be entitled to assess arbitrary fines in respect of the said estate, which your Orators don't by any means admit, yet your Orators even in that case humbly submit to the judgment of this honorable Court whether, according to the rules at law, more than years value of the said estate ought to be paid for a fine, and humbly insist that the true mea

sure

sure of such value is in the rent paid by the farmer and tenant thereof; or if the same is unlet, that your Orators ought to have some person present at the time of the valuation thereof by the said earl, &c. as a check upon them, and that all taxes charged upon the estate, and other outgoings, ought to be allowed and deducted out of such fines in the computation thereof. And your Orators further charge, that some scheme or design was several years ago entered into and laid before, and has been from time to time executed by the said respective lords of the said manors, in order to defeat and break through the customs of the several manors, by persuading some of the tenants to take receipts for fines exceeding a d. fine, were in fact only paid after or under that rent or measure, under pretence that the same should not in any shape affect them, as they paid no more than was really due from them; and by prevailing on others, who were either bailiffs under the said lords, or

eir immediate servants or dependents, or otherwise under their influence, and by threatening others who were timorous with suits, and by prosecuting the tenants severally and at several times, to pay such fines as were assessed upon them, or they were induced to agree to by promises of great abatement, or to have part of the money returned, so as to reduce the said fines according to the said ancient measure, and by promises of future favors, or by such or the like inducements; and that no bill was ever brought by any of the said lords against the tenants in general, touching the said customs, which upon the death of a lord might have been the case, it is ever admitted and never disputed, but - that a d. fine was the extent of what the lord could take, and the same was never attempted to be changed or varied by the lord, in regard it would have become the general and immediate concern of the whole barony, but in case of descents and alienations, as such did only imme diately concern the respective persons purchasing or becoming entitled by descent, and infringement and alteration of the customs in that respect became easy and practicable. And your Orators also charge, that many other methods have been lately contrived to break the said customs, and in particular, that in cases of alienation of any customary estates, to any person not before a tenant of any other customary estate within the said barony, the said lord and his steward took advantage of the ignorance of such purchaser of the customs of the said barony, and therefore exacted and took from him, over and above the alienation fine assessed, a further sum of money, sometimes more or sometimes less, but generally which the steward called an income fine, which your Orators insist is a mere innovation, and totally without foundation in custom, and an absolute imposition. And your Orators also charge, that they have not only taken the pretended income fine, but made, and now do make use thereof in aid of their attempts to break the fine certain, by having repeatedly added such pretended income fine to the fine certain for several years past, and that, by adding them together, and not distinguishing them in their receipts, have greatly confounded and perplexed the customary payments in several instances. And your Orators also charge, that divers methods were taken and pursued from time to time by the respective lords and their stewards, in order to keep the te nants of the said manors ignorant of, and unacquainted with their respective rights and customs, by getting into their custody and retaining

all

all deeds, papers, and rentals, which in any respect tends to explain or shew the same. And in particular your Orators charge, that within the said several manors it is, and for several years hath been, usual and common for the lord's steward thereof, or his agent, who is generally an attorney at law, as the said I. N. is, to prepare and draw all deeds of alienation, to the tenants, or from the tenants, to any other person or persons without the interposition of any other attorney or agent, or friend of the vendors or purchasers, though he hath not, nor ought to have any right so to do, in regard that the said practice may be, aud actually has been a great means of, and has given them great opportunities of imposing upon the tenants, and subverting their customs, which hath actually been done, or attempted; for that such of the tenants, or most of them as have so aliened their lands, have been, from time to time, prevailed upon by their respective stewards or agents, to bring all their old deeds, &c. to them, under a pretence of looking into the title, and which they have always kept and retained, and only returned the new purchase deed or deeds, alledging that the same was sufficient to shew the title of such estates; and the said earl and his steward, designing to break not only the customs relating to the measure of the said fines, but all other the ancient usages and customs of the said manor, pretend, and give out that your Orators, and the other customary tenants within the same, have no right to cut down and dispose of any of the underwoods growing on their customary lands, nor of any other wood or timber growing on their said estates, for the repair of their houses and other ancient buildings on their said customary estates, and other necessary boots, without licence from the said earl or his steward, nor with such licence, to get any other stones for repairing or rebuilding upon their said estates, or to open any new quarries upon the waste of their respective manors for that purpose, nor to cut up or carry away any turf, &c. growing or being on any of the said wastes or commons, for fuel, or for thatch, for their said customary messuages, nor to turn their cattle upon the waste or commons of the said manor in the summer, to graze and depasture there, or to erect houses there to reside in during such time, for the purposes aforesaid, nor to demise, &c. any of the said customary estates, for any term of years, or exchange the same, or any part thereof, without such licence, and without payment of a fine, by the person so letting and exchanging to the lord, and that it is discretionary in the lord or his steward whether he will or will not grant such licence in any of the said cases. Whereas your Orators charge the contrary thereof to be the truth, and doubt not to be able to prove, to the satisfaction of this honorable Court, that by ancient custom, time out of mind used and approved within the said several manors, your Orators, and all other customary tenants within the same, have not only had and taken from off any parts of their said several estates, wood for house-boot, &c. and all other necessary conveniences, but have also immemorially had and taken their hedgerows and trees growing on the hedges of their customary estates, to fell, give away, or dispose of, as they should think proper; and that they have also, till the time of the said I. N. the present steward, not only had lime and other stones as aforesaid, but they have always had a right, and have always cut up and carried away turf, &c. within the wastes and commons, for the purposes aforesaid; and also, from time to time, to turn their

cattle

cattle upon the waste and commons to graze, and to erect houses and sheds to live in, as aforesaid. And particularly, your Orator charges that there is a large tract of waste or common ground, called S. within the manor of B. which your Orators, and the several other tenants of the several other manors within the said barony, and in particular of, &c. and the other adjoining manors, and their ancestors, from time immemorial used to enjoy, in the summer season as aforesaid, till within these

years, when the lord of the said manors, without the consent of your Orators, and the rest of the tenants, took upon himself to exclude them from such their enjoyment thereof, and to let the same to such persons as he thought fit, at a rack rent. And your Orators also charge, that they have a right, and ought to be at liberty to lease and mortgage their several customary estates, for such terms as aforesaid, and also to exchange the same without any fine, or having any licence from the said earl and his steward, and that they have enjoyed all such liberties and privileges without any interruption, till very lately; and the said earl and his steward, at other times, give out, and pretend, that though it should appear that your Orators, and the other tenants, were anciently entitled to such customs as aforesaid, yet that a dispute having arisen between the late earl, father of the present earl, and some few of his tenants, about years ago, the same was referred to arbitration, and an award then made, whereby the said fines were then settled and allowed to be arbitrary, and at the will of the lord; and that, if there were originally such customs as are insisted on by your Orators, the same are destroyed and defeated by such award, as the same has ever since been submitted to by the said tenants, and that therefore they ought to be bound thereby. Whereas, your Orators charge, that no such award was ever made; or if there was any such, the same was brought about by the said carl's father, or his steward, which steward was a person who frequently endeavoured to break through and alter the customs, and by fair representations, and by the great influence which he had over the parties concerned in making the same, and that no written proof, on behalf of the tenants, as to the matters so deducted, was laid before such arbitrators, but the same was concealed by the then lord, and that therefore the same is invalid, and of no effect; or if otherwise, yet that none of the tenants ought to be bound thereby, except such as were parties to such submission, if any such there were, and that there were not more than the number of who signed or agreed to such submission. Whereas the whole number of the tenants exceeded six hundred; and even those who signed were influenced by threats to sign the same, and all, or the greater part of them, were dependant upon the said lord or his steward, which said steward was so conscious that he had drawn in and imposed upon them, that he frequently declared and admitted, both on his death-bed and before that, what he had done in that respect, and also in other matters, whereby he had broke in upon the said ancient customs, gave him so much uneasiness of mind, that he could not die in peace without declaring the same, or to that ef fect. And your Orators charge, that such award was never acquiesced in or submitted to, and that some of the said tenants, before the said award, and since that time, through the threats of the said lord and his steward, may have been induced to pay greater fines than they were bound or obliged to; yet the same was never, from consciousness that such fines

were

were really due, but they always declared it was through fear, and to avoid the expense of suits, and their inability to contend at law with a person of the great influence and fortune of the said respective lords of the said manors; and the said earl and his steward at other times alledge, that the several estates holden of the said manors are not of the nature of trust right or customary tenure, but are merely tenants by copy, at the will of the said lord, and that they have several decrees, or copies of decrees, which will clearly shew the same. Whereas your Orators expressly charge the contrary thereof to be the truth; and that if there be any such decrees, the same were obtained partially, and by collusion, and are not warranted or supported by, or grounded upon any evidence whatsoever, and are therefore not warranted by law; and the said earl and his ancestors are, and were so sensible thereof, that they never have insisted thereon, but frequently, both before and since, have admitted that the said estates were tenant right estates; and that it so appears, by several deeds, &c. in the custody of the said earl and his stewards, or agents, or of some person or persons with his or their knowledge and consent. And your Orators charge, that the said earl and his steward, on the occasion of the said pretended submission and award, prevailed on the arbitrators and manager, to deliver up all such deeds, &c. as were produced, or intended to be produced on that occasion, and still have the same, and having, by the several means aforesaid, and by other means, got into the custody or power all the ancient deeds, &c. belonging to the tenants of the said manors, and also all the court books relating to the payment of fines, but all other the said customs plainly appear, refuse not only to produce the same on any trial at law, and without which no fair trial can be had, nor the said customs, or the peace of the lord and tenants settled and established, which your Orators, and the rest of the tenants, are very desirous of, but refuse to suffer your Orators to peruse and inspect the same, aud deprive your Orators and the other tenants of the necessary evidence to support their said customs, under a pretence that a great part of such ancient deeds, &c. were, several years ago, burnt or destroyed. Whereas your Orators charge, that if any of them were burnt or destroyed, the said earl and his agents have preserved copies thereof. And the said earl also alledges, that there are some other persons, who, under some deeds, settlements, or limitations therein, is or are, or will be entitled to the said manors after him, or to some right, title, or interest in the said manors, or some part thereof; and that such person or persons will not be bound by any decree, verdict, or other determination, to be had or made between them and your Orators, and the rest of the said tenants, but refuse to give your Orators any further satisfaction therein, or to discover such person or persons which your Orators are advised is requisite to be done, in order that they may be made parties, and thereby the customs of the said manors completely settled and established. And your Orators also charge, that no trial can be had according to the course of common law, touching the several customs out of the county of Cumberland; or if in any other county, yet not without a jury of that county, and that such trial would not, nor could be fair and impartial (in regard the said earl is entitled, and would try the same with a special jury), not only by the said earl's great interest in the said common, but also in regard all, or most of all, the gentlemen in the said county, capable of serving on special

juries,