226 ROWLEY GREEN. 
with the consent of the homage, as against copy- 
holders, it could not be valid as against a person who 
had ceased to be a copyholder, but who still retained 
his rights of common. 
The case was tried before Mr. Justice Day and a 
special Jury, in Middlesex, on October 27th, 1892. 
The Judge held that the defendant was bound by the 
custom of the Manor, after the enfranchisement equally 
as before, when he was a copyholder; and as the Rolls 
of the Manor showed that on several previous occasions 
from 1700—the earliest date from which they existed— 
small portions of the waste had been inclosed with 
the consent of the homage, he directed a verdict for 
the lord. The case was subsequently argued in the 
Court of Appeal, which upheld the ruling of Mr. 
Justice Day. The defendant was advised that there 
was every prospect of success, if an appeal were made 
to the House of Lords, on the two points: first, that 
such a custom cannot be valid against others than 
copyhold tenants of the Manor; and, secondly, that 
the custom alleged—that the Lord of the Manor, with 
the consent of his own nominees on the homage, might 
inclose—was unreasonable, and one that could not be 
sustained at law. 
The question would have been one of the utmost 
importance, for there are many Manors where customs 
of this kind are alleged to exist, and it would be a most 
serious matter if their lords could maintain their right 
to inclose the waste, with the consent of a homage nomin- 
ated by themselves, and without leaving a sufficiency 
