BACON, V.C.-The most, or, perhaps, not the least, important part of the case which has been argued before me, raises a point which must be decided under the recent Judicature Act. I mean Mr. Fry's argument that the defendants' case cannot be entertained in this court because he has not filed a cross-bill. Now the statute is plain. The 2nd sub-section of the 24th section, which has been read, but which it is necessary to read again, is this. [His lordship read the section, and continued:-] Nothing could be more comprehensive, general, and universal than that stipulation. It shall be the duty of the court, in deciding a cause between two parties litigant, or more than two parties, if a ground of defence or title to relief by way of defence is alleged by the defendant, to deal with it in the same manner as the Court of Chancery would have dealt with it. But it is said that the Court of Chancery would not have dealt with this unless there had been a cross-bill filed. The subsequent provisions, which point out the way in which a defendant having a title to relief may bring that forwardby way of counter-claim, and so on, it is not necessary to refer to further for the present case; but it becomes necessary to examine the pleadings of the cause to see whether, in the terms of the sub-section, such a defence, or such a title to relief by way of defence, is upon the record as compels the court to deal with it upon the principles familiar in this court.

Now the plaintiff's case, which is stated with great fairness and frankness, alleges this state of circumstances. I do not stop to observe upon the instrumentality of Mr. Pinniger, because Mr. Pinniger was, if not from the beginning, soon after the beginning, only the plaintiff's agent. The defendants were builders-first, Hughes alone, and then Hughes and Thomas. They together engaged in building speculations, which are set out at full length in the pleadings, and the result of their first introduction was that Pinniger, having lent some of his own money and some of the plaintiff's money, lent them more money, and from time to time mortgages were executed, and it appears that the relation of solicitor and client, beyond question, existed between the plaintiff and Hughes and Thomas, and that, if not from the beginning, at least early or near enough to the beginning as to influence the whole of the transactions referred to in the cause.

Well, mortgages are executed, more money is wanted, more money is raised by mortgage, not to the plaintiff, but the plaintiff, as he says in his bill, received the proceeds of that mortgage-money. I speak of the first, the mortgage to Mrs. Bailey. The bill alleges that the £2,000, the subject of that mortgage, was received by the plaintiff, and credit for the same given to the defendants in the plaintiff's book of account, and, in effect, the £2,000 has been applied by the plaintiff in the payment off, so far as it would go, of the moneys due to the plaintiff in respect of his bills of costs, and the principal and interest on the securities. Without deeming it necessary for this purpose to mention the others, there were several other mortgages of the like kind, upon which the plaintiff says in the same terms he received the mortgagemoney, and carried it into his account, and applied it in the same manner as I have just mentioned. In fact, the phrase is repeated. So that not only the relation of solicitor and client existed between these parties, but a sort of relation something like that of a banker. The plaintiff received the moneys which were secured by the defendants' mortgage, carried them into account, and applied them in payment of the moneys he had advanced, and of his bills of costs. That pervades the whole of this transaction; that relationship is never in any degree changed.

Now, without trying to put upon the plaintiff, because he is a solicitor, any further burden than properly belongs to any person who so acted, I cannot forget that he had the duties of a solicitor to discharge to those

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persons. It was his duty to advise them, and no doubt he discharged it punctually, to see that, if they executed mortgages to other persons, they did not enter into any other engagements than the transaction warranted. The mortgages to other persons were all at the rate of five per cent.; the mortgages to the plaintiff were taken at a larger rate of interest, which he had by law a perfect right to exact and take, and his position as solicitor did not interfere with that right in the slightest degree; but that was the fact.

Well, then the mortgages go on, accounts are stated, and the accounts are of this nature. The plaintiff by his cashier makes out his accounts; the defendants Hughes and Thomas are summoned to examine those accounts; the accounts are laid before them or submitted to them-a variety of expressions are used in the evidence; and ultimately, at the instance of the agent of the plaintiff, and at his request, Hughes and Thomas sign memorandums approving of those accounts, and stating that they had examined them. If that was all in the case no doubt they would be bound by a settled account just as anybody else who, having a full opportunity of examin. ing an account, affixes his name to a memorandum signify. ing that he has examined and approves of it, is bound. But I do not find a statement in any part of this evidence that there was any examination of the account further than that the defendants' approbation was required to the statement of moneys which had been advanced to them. I do not find any allusion of any kind to bills of costs. There are bills of costs amounting, as the defendants' accountant says—and without adopting it any more than is necessary for this purpose I must for the present assume it to be right-to £600 odd, of which no bill was ever delivered as far as I know. Nobody has ever said that there was, and there was no examination of those bills. Without putting too strictly what may be called the duty of the solicitor, was not it right, before these defendants should have been called upon to approve of, or before they were in a situation to examine, these accounts, they should have had the bills delivered to them? There is no pretence for saying that they were ever delivered, and the plaintiff himself says-and this is what is called pressure, which he denies to have been pressure, but which the defendants say was pressure-he says, and says it over and over again, that he refused to advance any more money unless they would execute the securities which were tendered to them, the approval of the accounts being a preliminary to the execution of these deeds. That I take to be a clear condition of the case as far as the transactions between the plaintiff and defendants were concerned, and that continued down to the execution of the last of the mortgages. Well, then, that being so, I say it was fair, just, and proper that the bills should have been delivered, and that the cashier or the other gentleman who prepared the accounts and asked the approval of them, ought in his evidence to have said that the item which was represented by the bills of costs was drawn to the attention of the defendants, and if was not I am compelled to say that I think the plaintiff, in that instance, did not perform properly the duty he had taken upon himself as solicitor of these defendants.

The bills of costs amount to a considerable sum, and it cannot, I think, be fairly and properly submitted that these bills are not subject to taxation. If they are subject to taxation, and anything should be reduced from them, it would be apparent that there was an error in the accounts stated. Some errors are admitted. There is an offer to rectify those errors; but surely as between these parties, considering their relations, considering the burden upon the one and the duty which was upon the other, it is not unreasonable to say, although no doubt a large sum of money is due to the plaintiff in respect of large advances made by him for the benefit of the defendants, yet that the way in which that amount is to be ascertained, notwithstanding the

execution of the deed under the circumstances in evidence, is still open to investigation? This is all that I understand the defendants ask upon this occasion. They do not dispute the execution of the mortgage deed; they do not dispute the fact of the advances having been made; but they say that, upon considering the matter, or upon inquiry further into it, they are satisfied that they do not owe him so much as the mortgage deed represents them to be in his debt. But, then, is there any principle upon which I can say that that allegation is not a sufficient title to relief in this court? In the words of the Act of Parliament, is there any necessity, or would there have been before the Act of Parliament passed, any necessity for a cross-bill? The mortgages are not disputed, but the only thing that is disputed is the sum mentioned in the mortgage deed as the debt, and for that the defendants allege such reasons as appear in their answer why they ought to be re-considered, and why the account ought to be investigated. Mr. Fry appeals to my experience, but I should be very reluctant to resort only to my experience. I think that upon such a statement as I have just now made, the court would unhesitatingly direct the account to be taken. The court would not preclude a defendant from, at least, an inquiry into that which he said was his just right. It would not adopt an untaxed bill of costs as a liquidated debt against the wishes of the persons indebted upon that bill of costs, but who had never had an opportunity of seeing it or investigating it, it being the bill of costs of the plaintiff.

Upon this statute, therefore, I am satisfied that I should neglect my duty if I did not attend to that which is alleged by the defendants by way of defence for the purposes I have mentioned. There is no statement of fraud or forgery as to the deed, and no reason why the deed should be set aside, and no claim for that to be done. All that the defendants say is this, There are errors in the accounts upon which we signed these deeds, and we desire to have them set to rights. The plaintiff to a certain extent agrees that there are errors in the accounts, and he does not dispute, as far as I know, that no bill of costs was ever delivered to these parties during the transactions which occupied the few years covered by these several deeds. I think, therefore, that upon the pleadings, notwithstanding the argument that the court does not give relief except upon a cross-bill, if there had been no Judicature Act passed, the defendants upon the evidence before me would have been entitled to have the account they ask for. I think that under the Judicature Act I have no choice but to say that they are so entitled, and that the account must be taken.

Then, the manner in which the account is to be taken deserves to be considered. A great deal has been said about the stipulation in the last mortgage deed which constitutes the plaintiff receiver of the rents and allows him to charge a commission for that purpose. It was truly said that the older decisions had in view the Usury Laws, and Lord Eldon's expression is that such a stipulation would tend to usury, but he says also it would be oppressive. Well, if the court finds that from the relation of the parties one of them has the means of oppressing the other, it would come clearly within the very expression which he uses, and though it is very true, as Mr. Fry has most ably argued, if you treat the mortgagee in possession as a trustee he has a right to stipulate for any remuneration that he and the other party may agree upon; yet, to call him a trustee, does not conclude the case. Nobody has ever said in express terms that a mortgagee in possession is a trustee; but everybody knows that the ground upon which a mortgagee in possession is charged with the rents which, but for his wilful default, he might have received, is because he has changed his character of mere mortgagee and has chosen for the time being to become owner.

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If an

Referring then to the topic which I have before mentioned, namely, the relation of solicitor and client, I must assume that the plaintiff took upon himself, although this was a matter of contract, the duty of advising his clients what deeds they should execute. independent solicitor had been employed he would have objected to any such stipulation; at least, he ought to have done so. He would have said the law is against it, as far as he understood it. Besides, he might have referred to that universal practice among conveyancers in mortgage transactions, who, when it is desired to give to the mortgagee a power or at least a control over the receipt of the rents, insert a prohibition against the mortgagee bargaining for himself for any advantage to be derived. From that he is carefully protected by appointing some other person to be receiver, and providing for the remuneration to be paid to that other person, all of which is consistent with the other principles recognized in similar cases, where the mortgagee entering into possession cannot receive the rents with his own hands, and finds it necessasy to employ a man for that purpose. That expenditure is allowed in the taking of the account, but that is only allowed because the mortgagee himself derives no personal benefit from that transaction. And, when the enormous power is considered which a mortgagee in possession possesses over mortgaged property, I think the rule is founded in perfect justice and good sense, and being, as I have said, universally well known, in my opinion the stipulation that these defendants should be burdened with the commission payable to the plaintiff for his own benefit is one which ought not to have been inserted in the mortgage deed. And as the plaintiff has never been, at least until the quarrel happened, other than the solicitor and adviser of the defendants, and ought to have advised them against any such stipulation, unless the clearest matter of contract could be submitted to the court, unless there was the clearest evidence that the defendants, knowing what protection the law gave them, were willing to relinquish that protection, I think the plaintiff cannot justify that charge.

Another subject which has been discussed has been the practice, which seems to have prevailed, and which the plaintiff himself states in his bill, of charging a very large rate of interest upon the sums which he from time to time advanced. Now, the Usury Laws having been repealed, it is not to be disputed that it was competent for the plaintiff to demand and exact, and competent for the defendants to agree that he should have, any rate of interest that he thought fit, but I do not find any such contract alleged in the bill. I find that the plaintiff made advances to Thomas upon bills of exchange, which were brought by Thomas to be discounted at the rate of 1s. in the pound commission on bills having three months to run. This statement leaves it doubtful whether this large rate of discount was proposed by the plaintiff or Thomas. After describing the other transactions connected with this discounting, the effect of which is that an equitable mortgage or charge was at the same time as the discounting created in favour of the plaintiff, he says further that the defendants being unable to meet the bills at maturity, the plaintiff, at considerable inconvenience, was obliged to provide for the payment of them, and, with the consent of Thomas and Hughes, he charged a further commission of five per cent. for so doing. I cannot read any authority in that for the plaintiff charging that rate.

It seems that the accounts when they were produced were disputed by the defendants. The clerk tells them they must settle them. They do see the plaintiff, and then the plaintiff says that he positively refused to advance any further sum of money unless they would execute the deed, and under those circumstances they do execute the deed.

Now, the answer alleges the pressure which I have

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been mentioning, and that the accounts were erroneous, and it concluded with a passage, the meaning of which has been somewhat canvassed, but in my opinion means that an account should be taken of what is due to the plaintiff for principal and interest—that is, for principal moneys advanced and interest upon such advances-with such costs and charges as shall upon taxation appear to be due, but not interest upon those costs.

I think that there is a sufficient ground of defence, a sufficient title of relief, pleaded on this record. I think I am bound upon the evidence to give effect to that claim. I think there must be an account properly taken of the moneys advanced by the plaintiff, with interest. I think that the costs which are inserted in the accounts and included in the securities must now be taxed, and that the amount when taxed must be included in the plaintiff's securities, and there must be a decree of foreclosure for the amount of what, upon this process being gone through, shall appear to be due. In other respects it will be an ordinary foreclosure account.

An

The decree directed the following accounts:-An account of principal and interest due to the plaintiff in respect of his advances on the mortgages in the pleadings mentioned, and for his costs of suit, and also his costs properly incurred in respect of the mortgages to be taxed. account of money laid out by the plaintiff in necessary repairs on the mortgaged property, with interest on the sums so laid out at the same rate as in the mortgages, adding the amount to the account. An account on the footing of wilful default of rents and profits received, deducting the amount with interest at £4 per cent. from the date of receipt from the above accounts. An account of money expended in purchase of the reversion, and in taking the accounts, signed accounts not to be deemed settled accounts. Usual decree for foreclosure. Solicitors, G. L. P. Eyre & Co.; Rooks, Kenrick, & Co.; Stoneham & Legge.

In an action by a person of unsound mind, not so found, for the execution of trusts under which the plain tiff was entitled for life to about £180 a year, the fund being transferred into court, and there being no dispute as to the custody of the plaintiff's person, it was referred to chambers to appoint a proper person to act in the nature of a guardian of the person and estate of the plaintiff, and inquiries were directed as to allowances for past maintenance and with respect to future maintenance.

The plaintiff was a lady of unsound mind, not so found by inquisition, who had, since the year 1857, been entitled for life in possession to two funds, namely, a sum of £3,113 17s. 2d. consols under a settlement, and a sum of £2,921 8s. 5d. reduced annuities under her father's will. From 1861 to the end of 1875 she was in a private institution under the charge of a physician, to whom the trustees of the will and settlement paid £150 a year for her maintenance.

In January, 1876, two actions were instituted by different next friends against the trustees for execution of the trusts, for an account, and for inquiries and direc

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tions with respect to the protection and maintenance of the plaintiff. The next friend in the second action was the person who had actually the custody of the plaintiff.

Chitty, Q.C., and Rawlins, for the plaintiff in the first action. It is intended to bring into court the funds to a life interest in which the plaintiff is entitled, and we ask the court thereupon to make provision for the plaintiff's maintenance and support. The court has jurisdiction to make orders with respect to past maintenance, and also for future maintenance, when the property is under its control: Shelford on Lunatics, p. 213; Seton on Decrees, p. 705; Nelson v. Duncombe, 9 Beav. 211; Re Berry, 13 Beav. 455; Re Macfarlane, 10 W. R. 369, 2 J. & H. 673; Light v. Light, 25 Beav. 248; Re Law, 30 L. J. Ch. 512, 9 W. R. Ch. Dig. 43'; Davis v. Davis, 2 De G. M. & G. 51; Edwards v. Abrey, and the note thereto, 2 C. P. Coop. 177; Bishop of Exeter v. Lord Ward, 2 M. & K. 54. Sherwood v. Sanderson, 19 Ves. 280, is a decision that the court has similar jurisdiction with respect to costs. The origin of the juris diction is lunacy is discussed by Lord Redesdale in Re Fitzgerald, 2 Sch. & Lef. 432, at p. 438; see also Corporation of Burford v. Lenthall, 2 Atk. at p. 553. We are unable to apply under sections 12-15 of the Lunacy Regulation Act (25 & 26 Vict. c. 86) because the amount of the property exceeds £50 a year.

Smart, for the plaintiff in the second action, said that there was no intention of issuing a commission of lunacy.

Roxburgh, Q.C., and Yate Lee, for the defendants.

JESSEL, M.R.-On the authorities cited, and a good many others which I have referred to, I am satisfied that the court has original jurisdiction to provide for main tenance out of the property of persons of unsound mind not so found; and I am not sure that it has not the jurisdiction where they are so found. Lord Loughborough, in Eyre v. Wake, 4 Ves. 795, and Lord Thurlow, in Machin v. Salkeld, 2 Dick. 634, both exercised it upon the ground of the smallness of the fund; so Lord Cottenham, in Edwards v. Abrey, 2 Coop. 177 (see p. 188). It is clear that the jurisdiction exists; the question is, whether it ought to be exercised, there being another jurisdiction. The case before Lord Brougham of Re Ashley, mentioned in 2 Coop. 207, is to the same effect. Thus all four Lord Chancellors agree that there is this jurisdiction, and that it is proper to exercise it when the fund is small.

There was, no doubt, also another ground for this jurisdiction-where the fact of lunacy was traversed, as in Sherwood v. Sanderson, or where there were no means of maintenance before the commission issued. Provision is now made by the statute for application, by the Lord Chancellor, of the lunatic's property, when small, for his benefit, and the limit of the amount of property for that purpose is fixed at £1,000 or £50 per annum. That, then, supplies me with a legislative index, pointing out in what cases a commission is not wanted, and what, therefore, is the smallness in amount of the fund which will warrant a judge in exercising the chancery jurisdiction.

There is, however, another point in this case, namely, as to the custody. I do not find that an order of this kind has ever been made where there has been a contest as to the custody; but there being here no opposition on the part of the person who has the custody, I am of opinion, considering that the property is really small, that I am at liberty, notwithstanding the Lunacy Regulation Act, to act as I propose to do. The two actions will be consolidated, and a decree made in both for the execution of the trusts, and directing an account of the principal and income. Then there will be a reference to chambers to appoint a proper person to act in the nature of a guardian, and on inquiry as to maintenance. The plaintiff in the

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cause.

The latter part of the decree was as follows:-"It appearing that the plaintiff is, from her state of mind, incompetent to manage her affairs, and that she has not been found lunatic by inquisition. Refer it to chambers to appoint a proper person to act in the nature of a guardian of her person and estate, and inquire what sum or sums ought to be allowed for the maintenance of the plaintiff in the past and up to the date of the appointment of such guardian as aforesaid, and to whom, and out of what fund." The decree then directed an inquiry as to future maintenance; and a direction for the transfer of the trust-fund into court.

Solicitors, Bolton, Robbins, & Busk; Belfrage & Middleton.

HAMMERTON v. HONEY.
Custom-Non-user-Appeal.

As a custom is local law, it cannot be got rid of except by statute.

But long-continued non-user is strong evidence of the custom never having existed.

It is not the duty of the judge of a court of first instance, when the plaintiffs' case has broken down, to hear the defendants' case merely in order to put the defendants in a better position before the Court of Appeal. The plaintiffs in this case were inhabitants of Stockwell, in the parish of Lambeth.

The defendants were the owner of the soil of a place called Stockwell-green, and persons claiming under him. The bill prayed for a declaration that the plaintiffs and other inhabitants of the hamlet of Stockwell were entitled to use and enjoy a green called Stockwell-green as a place of recreation and amusement, for air and exercise, and for the playing of all manner of lawful games, and that they might be quieted in the possession and enjoyment of their said right.

The facts, according to the view of the Master of the Rolls, were shortly as follows:

A vill called Stockwell formerly existed in the parish of Lambeth, and included the village of Stockwell. In the centre of the village was an uninclosed green forming part of the waste lands of the manor of Stockwell.

In 1813 one Barrett took a lease of the green from the tenants for life and in remainder of the manor, and be. tween the year 1816 and 1817 put a fence round the green, which fence was however continually falling into disrepair.

In 1855 a new fence was put up by persons claiming title through Barrett. From this time till the filing of the bill in December, 1874, shortly after the defendant Honey had purchased the land on the expiration of Barrett's lease, the inhabitants of Stockwell were effectually excluded from any such use of the green as claimed by the bill, nor was any protest made against this exclusion.

Fry, Q.C., and W. R. Fisher, for the plaintiffs, admitted that they were bound to adduce the strictest possible evidence of the custom which had been so long disused.

At the close of the plaintiffs' case the Master of the Rolls intimated that he was against the plaintiffs upon the facts.

H. Matthews, Q.C., and Chitty, Q.C., then submitted, on behalf of the defendant Mr. Honey, that

This the Master of the Rolls, however, declined to allow, on the grounds that as a general rule suitors in other cases ought not to be delayed by a judge hearing the defendants when the plaintiffs' evidence had broken down, and intimated that as the judge of first instance sat as a jury, and had the advantage of seeing the witnesses in court and observing their demeanour, he should assume that the Court of Appeal would not disturb the decision of the judge on the evidence unless the decision were manifestly wrong or perverse.

Everitt, Henderson, and D. L. Alexander, for other defendants.

JESSEL, M.R.-The first thing I have to consider is, what is the law of the case? As I understand it, it is this:-There are certain rights which may be claimed by custom as distinct from prescription. What is called a right of recreation and amusement, of air and exercise, or the playing of all manner of lawful games and pastimes, is a right in the nature of an easement which may be well claimed by custom.

Now, what is a custom ? A custom, as I understand it, is local common law. It is common law because it is not statute law; it is local law because it is the law of a particular place as distinguished from the general common law. Now, what is the meaning of local common law? Local common law, like general common law, is the law of the country as it existed before the time of legal memory, which is generally considered the time of Richard I. Therefore, when people allege a custom they allege that which they call a custom as having been the law of the place before the time of legal memory. I say this because it appears to me that in some of the books custom has been confused with evidence of custom, which is quite a different thing. For instance, when we are told that custom must be certain, reasonable, and continuous-that all relates to the evidence of a custom. There is no such thing as law which is uncertain-the notion of law means a certain rule of some kind.

When it is said that a custom must be reasonable, the meaning is this:-Although the common law of the kingdom is proved by strong decisions of former judges, statements made in writing by great lawyers in former times, and so on, the common law of a place can seldom be proved by any of these things, and as a general rule it is proved by usage. Now, what kind of usage will do? Usage to prove a custom must, it is said, first of all, be such usage as will show a reasonable rule. That is to say, the courts, in deciding that there is an exception to the common law by the local law, have said you must show that the exception is reasonable. We shall not consider that any usage will establish an unreasonable law. That is only a rule of evidence. The judges will not admit mere usage to establish what they think unreasonable, and it is in that sense that they say that a custom must be reasonable.

Again, it is said that a custom must be continuous. What is that? It means there must be long, continuous, habitual usage without interruption. In other words, as the law must have existed from time immemorial, when there has been interruption or disturbance in the usage, acquiesced in by the persons who are alleged to be entitled to exercise the right, and who have not either by legal or illegal means attempted to prevent the disturbance or interference, and the disturbance or interruption has not been for a short time, but for many years, it is a strong presumption that there never was any such law as alleged at all. As a general rule, people do not quietly

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acquiesce in the disturbance of their rights, and therefore when there has been long-continued interruption you naturally come to the conclusion that there never was any such law.

Again, for how long must you prove your usage? It is impossible to prove actual usage in all time by living testimony. The usual course taken is this: persons of middle or old age are called, who state that in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that the usage has prevailed from all time. Now you may have two sorts of countervailing evidence. You may call other old persons who show that there was an interruption during the period spoken to by the first set of witnesses, or you may show from the nature of the case that it was quite impossible that such a right should have existed from time immemorial, that there is some legal difficulty or obstacle in the way, which makes the alleged assertion of right incompatible with the law of the country. In that way again you destroy the evidence of the custom-that is, of the law.

Again, what must be the usage proved? It must not only be consistent with the custom alleged, but, if I may use the expression, not too wide. For instance, if you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom. It is not confined to what you say it is, and if your evidence is good for anything you prove a great deal more than you have alleged. You cannot select a bit of the practices proved, which might possibly have a legal origin, and say that the evidence must be rejected which would show that bit to be only a small part, say one-twentieth, of the whole usage of which the remaining nineteen-twentieths may be utterly incapable of legal origin, and therefore that the one-twentieth must be assumed to have had a legal origin. I know there have been some observations made in cases which come to this -that the general legal usage is not destroyed because an occasional illegal usage is shown; but that does not apply where you have evidence of a totally different state of things which does not support a local custom at all. That, I think, is the general law of the case.

After all, whatever definition you may give to custom and prescription, we all know that they are legal fictions invented by judges for the purpose of giving a legal foundation or origin to long usage. I do not suppose anybody imagines that in the case of prescription there has been a lost grant, or of a custom that there has been from time immemorial a common law of the particular place, and the meaning and substance of the old law is merely this—that when you find long-continued usage which can have a legal origin, then, with the view of preserving to the people claiming them the quiet possession of the rights of property or rights of easement which they have so long enjoyed, you shall attribute these rights, if possible, to a legal origin so as to support

them.

The declaration of the Legislature in the Prescription Act is therefore upon an analogous subject. Under the Act interruption for a year destroys prescription, and, although as has been fairly said this would not apply to prescription which could be proved independently of the Act, it shows the sort of interruption the Legislature thought sufficient. Hence it is, in my opinion, a most important point to ascertain what has been the usage up to the time of trial or of bringing the action. Now the plaintiffs opened their case by admitting that from April, 1855, down to the filing of the bill on the 18th of December, 1874, a period of nineteen and a half years or thereabouts, these rights have not been exercised. I am not aware of any case, and I have looked to see if I could find any such case, where, after such a long period

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of undisputed interruption and absolute deprivation of the right, the court has ever sustained either custom or prescription. I do not say it is impossible, because I agree that, the nature of custom being, as it is, local law, you can only get rid of it in the same way as other local laws are got rid of, namely, by Act of Parliament. I am not aware of any other means. Of course, it is opposed to the true notion to suppose there is such other means, but that is an additional reason why the judges have been very careful, not only in restricting the custom to certain classes of cases, but also in seeing that the custom is properly and strictly proved. If there is such a custom in the inhabitants of a vill you never can get rid of it, as far as I know, by any means short of an Act of Parliament.

His lordship then proceeded to examine the plaintiffs' evidence, which he held to be wholly insufficient, and he dismissed the bill with costs.

Solicitors, Horne & Hunter; W. Honey; Lewis & Sons.

A., a devisee, put up certain property for sale by auction. The trustees of A's marriage settlement had power to purchase property for A., and B. his wife, to reside in. B. was a daughter of A.'s testator, and a third of the proceeds of sale werepayable to the trustees of the settlement. A. employed an auctioneer to set a reserve price on the several lots in which the property was put up. A. and B. requested the trustees to purchase some of the lots; they acceded to the request, but took no active part in the purchase, but left the conduct thereof to A., who was a solicitor and acted for them; he employed D. as agent, and instructed him to bid a sum considerably above the reserved price for one lot, and if that was knocked down to him then to buy certain other lots at auy price. The purchase was completed and a conveyance to the trustees executed. The trustees not having sufficient available funds to make up the purchase-money A. made up the deficiency.

A bill filed by persons claiming under the will to have the sale declared not binding upon them and liable to be set aside, was dismissed.

William North, by his will dated the 12th of June, 1858, devised all his freehold and copyhold estates unto R. North (since deceased) and the defendant T. A. Hickley, their heirs and assigns, upon trust that they or the survivor of them should, at such times as they or he should in their or his discretion think most advisable, sell the same and pay one-third of the clear produce of the sales to the trustees for the time being of the settlement made on the marriage of the defendant T. A. Hickley, and Laura, his wife (one of the daughters of the testator), dated the 3rd of April, 1858, and the other two-thirds, as to one moiety upon trust for the benefit of Mary North (since deceased), and as to the other moiety of such two-thirds upon trust for the separate use of Maria Hickley during her life, and after her decease for her husband, and after the death of the survivor of them upon trust for the benefit of their children.

William North died on the 21st of March, 1859, leaving his three daughters in his will named him surviving. R. North and the defendant T. A. Hickley sold all the estates of the testator except those mentioned below.