declined a trial at law, knowing they could not prove their pretended custom by witnesses to be examined, viva voce, and that the greater part of appellants witnesses had not been examined, because they conceived the proof made, sufficient to induce the court to direct a trial as in like cases; but 11th February, 1697, upon the respondents motion and petition, they obtained an order for rehearing, and 2d July last the cause was reheard, and it was then decreed, that the pretended custom should be, and was thereby ratified and established without any [50] trial at law; and that appellants, and all claiming under them, should from thenceforth, during respondents term, pay their suit and soke to the said mills, and grind all corn, grain, and malt, consumed and used in their houses, in the said town, at respondents mills, and not elsewhere; and that in case respondents should not grind same, in forty-eight hours after it should be brought to the mills, then appellants were at liberty to take it away, and grind it at any other mills at their pleasure; which decree appellants insist is erroneous, for that the custom ought to have been previously tried, as it was in this very case directed upon the first hearing, it appearing on the face of the said decree to be a controverted custom; and because many of the appellants witnesses were rejected, because they were townsmen; and appellants imagining townsmen as good witnesses for them as for the respondents, omitted examining above sixty very old witnesses, not townsmen; who would have falsified the pretended custom. And further, because all customs are properly triable at law by a jury of the neighbourhood, before they can be established by a court of equity, especially in a matter against common right, as this supposed custom is: and because by this decree, no provision is made to oblige respondents to grind their corn well, and take reasonable toll, and by this decree the appellants must leave their corn forty-eight hours to be ground at these mills, though they want bread; and appellants prayed that the decree might be reversed, and a trial at law directed to try the custom, and submitted that if respondents have such a custom, it must be so found by a jury, and respondents will have their costs against appellants, and so can receive no prejudice by a trial; on the contrary, it will be binding to appellants for ever, and consequently a mighty mischief and prejudice to all the inhabitants of that great town. (James Sloane, Edmund Bridges.)
The respondents on the other hand stated, that King Henry the third, by letters patent, dated 20 Junii, 11 Regni sui granted (inter alia) unto the Burgesses of Bruges (now called Bridgnorth) in the county of Salop, and their heirs for ever, that they and their heirs should have to fee farm the mill of Pendaston, without the said town upon the river Wurg (now called Worffe) with the suit of said town, and all other appurtenances, rendering to the crown Ten Pounds per ann. payable at the Exchequer at Michaelmas and Easter, and that this [51] grant had been confirmed by several succeeding Kings, and that the burgesses became seized of the said mill, with the suit thereof, subject to the said fee farm rent, and have ever since enjoyed it; and that respondents, being ancient tenants of the mill, the bailiffs and Burgesses, in consideration 160l. fine and 60l per ann. rent, by indenture, dated 23d March, 1691, demised the said mill, being four water corn mills under one roof, called Pendaston mills, together with suit to the said mills of all manner of corn, mulcture, and toll, of all the inhabitants of the said town, to hold to respondents for twenty-one years, under the rents and covenants therein expressed; and in particular under one special covenant, that respondents should make satisfaction to the inhabitants for all damage to be sustained in grinding their corn, by respondents, at said mills, on oath of the party grieved, or other sufficient witness: And shewed that the Millers servants are all sworn to be just and true to the suiters; and that Pendaston mills are good mills, and kept in good repair by respondents, and will grind all the corn and grain of all the inhabitants of the said town in due time; and that respondents keep men and horses sufficient for the purposes of the mills; and that appellants (though resident Burgesses of the town) withdrew their suit from said mills, and sent their corn and grain to other mills, whereby respondents lost the benefit of such toll, which, if permitted, all other the inhabitants may do so; whereby respondents would be defrauded of their just right, and disabled to pay the fee farm rent to the Crown, and the improved rent to the said town, and to keep the mills in repair; and that therefore respondents brought their bill against appellants, to confirm the custom, and
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