Ex. Div.]

"trustees." The trustees are so named in the deed, and the other contracting parties are called "beneficiaries," and give a consideration. A court of equity would impose a trust, and say they sold for the benefit of the beneficiaries. I think the statutes would supply this if it were needed, though, in my opinion, it is not necessary to rely upon the statute. As I read the Act (23 & 24 Vict. c. 145) it saves the insertion of certain provisions, and where they are not inserted adds to the deed what a court of equity would say was required for the just construction, and refers to the case of deeds in which persons called trustees have a power of sale. I think, therefore, that these persons did take an equitable freehold interest, and that as the sale was not to be for the trustees' own benefit it is clear that the appellant has such an interest as, the value being admittedly sufficient, will entitle him to the franchise.

ARCHIBALD, J.-I am of the same opinion. The question is, whether the appellant has a freehold interest. I think we must look at the deed and construe it without reference to the motives of the grantor, and when so looked at, the deed in its earlier part amply conveys a freehold interest. We need not decide whether the case of Davis v. Waddington (supra) governs the present case or not. I refrain from saying whether this case is similar to that case or to the case of Beeson v. Burton (sup.), but from the whole contents of the deed I am clear that the power of sale cannot be construed as Mr. Edwards has suggested. The first part of the deed gives an interest to the cestuis que trust, and then it provides that they may sell that interest. The trustees are to hold for the cestuis que trust their heirs and assigns.

Solicitors for the appellant, lidsdale, Craddock, and Ridsdale.

Solicitors for the respondent, Robinson and Preston.

EXCHEQUER DIVISION.

Reported by H. LEIGH and PAWSON, Esqrs., Barristersat-Law.

Nov. 13 and 15, 1875.

HALL V. NOTTINGHAN AND OTHERS. Custom-Recreation in alieno solo-Right of parishioners to at any time in the year-Reasonableness and certainty of custom- Any lawful and innocent recreation ". Any time in the year ”— Meaning of word "custom."

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A custom was claimed for the inhabitants of a parish to erect a Maypole in a certain piece of inclosed ground of a private owner in the parish, and to dance round and about the same, and otherwise enjoy any lawful and innocent recreation at any time in the year on the said ground: Held by the court (Kelly, C.B., and Cleasby and Amphlett, BB.) to be a good valid and reasonable custom, and sufficiently certain, on the authority of Abbott v. Weekly (1 Lev. 176) and Fitch v. Rawling and another (2 H. Black. 393) which were approved and followed in preference to Millechamp v. Johnson and others (Willes 205 (note b), which was also distinguished. Per Cleasby, B. the meaning of the word "custom in a case like this, is something having the effect of a local law, arising from the consent of all the inhabitants of a district from before the time of

[Ex. Div. legal memory. But the general law of the land requires that this kind of local law shall be both reasonable and certain.

THIS was an appeal from the decision of the Judge of the County Court of Shropshire, holden at Ludlow, in an action of trespass which was brought by the plaintiff against the defendants, parishioners of the parish of Ashford Carbonell in the county of Salop, for trespass on a field or piece of pasture land called "The Maypole Piece" situate in the said parish. The defendants pleaded a right under a custom which they claimed for the parish. ioners of Ashford Carbonell to go upon the said piece of land at all times, for the purpose of using the same as a recreation ground, and they disputed the plaintiff's right to the freehold of the land.

The learned judge, after hearing the evidence and arguments on both sides, found that the freehold was in the plaintiff and that the land in respect of which the rights were claimed, was a piece of glebe land situate in an enclosed field of the plaintiff, and which glebe was exchanged in the year 1780 by the incumbent of Ashford Carbonell (with the consent of the bishop) with a predecessor of the plaintiff for an equal portion of another field in the said parish, of equal value; that the said land over which the said rights were claimed had been regularly rated to the poor, and tithe had been paid and commuted for the same; and that the custom had been claimed for a number of years by the parish and also disputed by the owner for the time being for the same period. He found also that the said piece of land was subject to a lawful custom for the inhabitants of the said parish to erect a Maypole on the said ground, and dance round and about the same, and otherwise enjoy any lawful and innocent recreation at any time in the year on the said ground. Judgment having accordingly been given in favour of the defendants, the plaintiff brought the present appeal. The question for the opinion of the Court of Exchequer was whether the custom alleged was good in law.

V.

Masterman, for the plaintiff (appellant), submitted that the custom was bad, inasmuch as it was too wide, general and uncertain. The particular games or sports were not specified, nor were the times at or during which they were to be indulged in limited: The defendants claimed a right by custom to dance and enjoy other recreations at any and all times of the year on the plaintiff's land, and that such a custom could not be upheld was clear from the case of Millechamp Johnson and others (Willes 205, note b) in which the custom claimed was for all the inhabitants of the Town of C. for the time being to have and enjoy the liberty and privilege of playing at all rural sports or games in the said close every year at all times of the year at their will and pleasure, and the court held that the custom as laid, extending to "any rural sports," was too general aud uncertain. No doubt a somewhat similar custom was upheld in Abbott v. Weekly (1 Lev. 176) where a prescription for all the inhabitants of the vill, to dance at all times of the year at their free will for their recreation on the plaintiff's close was held a good custom. So also in Fitch v. Rawling and others (2 H. Blacks. p. 393) a custom for all the inhabitants of a parish to play at all kinds of lawful games and sports and pastimes in the close of A., at all seasonable times of the year, at their free will and pleasure, was held to be reasonable and good. But these cases are clearly distinguishable.

In Abbott v. Weekly the recreation was specified and limited to dancing; whereas here it extended not only to dancing on May Day, but to all and any other times and to any other games and recreations, so that it might deprive the plaintiff of the entire use of his land for any agricultural or profitable purpose; and in Fitch v. Rawling the claim was limited to all seasonable times of the year, whereas in the present case there was no such limitation. [AMPHLETT, B. referred to Race v. Ward and others (4 E. & B. 702; 24 L. J. 153, Q. B.)] The court will be slow to hold the custom good as it is one "beyond reasonable control," and falls within the judgment of Lord St. Leonards,, L C. in the Scotch appeal case of Dyce v. Hay, in the House of Lords (1 Macq. H. L. Cases) where the right was claimed for the pursuer, as an inhabitant of Aberdeen, to go at all times for purposes of recreation upon the enclosed land of the appellant, and in his judgment there at p. 309 his Lordship said, "Now that I conceive is a claim so large as to be entirely inconsistent with the rights of property, for no man can be considered to have a right of property worth holding in a soil over which the whole world has the privilege to walk and disport themselves at pleasure." [KELLY C.B. That case was a case of prescription.] Nov. 15.-Bosanquet, for the defendants (respondents), contra, contended that the custom claimed was a perfectly good and valid one. The proposition contended for by the plaintiff is that there cannot be so wide a custom in alieno solo, ard, inasmuch as a parish cannot as an individual person have a freehold, it amounts to saying that a piece of ground cannot be dedicated to the use of a parish so that the parishioners may have a right to play games therein, which would be a practical denial of the right to a village green. Abbott v. Weekly (ubi sup.) is it is submitted a conclusive authority for the defendants. The custom under which the trespass in that case was justified was alleged to be for all the inhabitants of the vill to dance on the locus in quo at all times of the year. The objection was taken after verdict that a prescription to dance in the freehold of another and spoil his grass was void, especially as it was said, "at all times of the year " and not at all seasonable times. But the court said, "This is a good custom and it is necessary for the inhabitants to have their recreation." So in Fitch v. Rawling (ubi sup.) a custom, for "all the inhabitants of a parish to play at all kinds of lawful games, sports, and pastimes, in the close of A. at all seasonable times of the year at their free will and pleasure" was held to be good; the court there resting their judgment on Weekly v. Abbott (ubi sup.) and Buller, J. in his judgment there says, "In the case in Levinz (Abbott v. Weekly) the court say that it is necessary for the inhabitants to have their recreation. If so, it is a matter of law, and though there may be precedents which state such custom to be for either the health or recreation of the inhabitants, yet where the court lay it down that recreation is necessary, it is not necessary to be averred in pleading." [KELLY, C.B.-The right claimed in the present case is the use of the whole surface of the soil of the plaintiff's land at all times.] That is so, but, though no doubt such a custom might and pro bably would practically deprive the owner of the use and profit of the surface, the current of authority is in its favour. And as to Millechamp v. Johnson

[Ex. Div.

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(ubi sup.) relied on by the plaintiff, the only case that is at all opposed to the contention of the defendants, the decision there that the custom as laid, extending to "any rural sports," was too general and uncertain, is not good law; whilst as to "all times of the year," the court there expressly held that these "must be taken to mean all legal and seasonable times of the year," and that this did not take away the profits of the land. Sir W. Blackstone (2 Black. Comm. p. 263 of the 16th edition by Coleridge and p. 293 of the 20th edition by Stewart) in pointing out the distinction between custom and prescription, the former being "properly a local usage and not annexed to any person," says, "If there be a usage in the parish of Dale that all the inhabitants of that parish may dance on a certain close at all times for their recreation (which is held to be a lawful usage) this is strictly a custom, for it is applied to the place in general and not to any particular person," and he cites Abbott v. Weekly as upholding such a custom. The question arose again in this court in Mounsey v. Ismay (7 L. T. Rep. N. S. 767; 1 H. & C. 729; 12 L. J., N. S., 94, Ex.) and both Pollock, C.B. and Martin, B. in their judgments refer to Abbott v. Weekly as distinctly holding such a custom as the present though not limited to seasonable times to be good. The case of Dyce v. Hay (ubi sup.) though cited by my friend in support of the plaintiff's case, in truth is an authority in favour of the plaintiff, for the Lord Chancellor (Lord St. Leonards, in his judgment says "There is one thing as to which I must particularly guard myself, and I must anxiously beg that the House may not be taken as expressing any adverse opinion; I mean that right to which the right in question in this case has been improperly assimilated; the right of village greens and playgrounds the enjoyment of which has been dedicated to the public. . . It is now admitted to be clear that the law of Scotland in that respect agrees with the law of England. If there be a piece of ground uninclosed (not that I mean to say inclosure would make any difference, unless there was an exercise of an adverse right), but I say, if there be a piece of ground uninclosed, and dedicated from time immemorial to the public from which a custom may be laid for sports generally or for village recreation, nobody I trust will suppose that such rights can at all be affected or disturbed by any decision at which your Lordships may arrive upon the present appeal. Those rights will remain untouched, and are unassailable, be the fate of this case what it may." [KELLY, C.B.-As far as it may operate, that opinion of Lord St. Leonards, although the decision in the particular case is the other way, is no doubt in your favour.] There is nothing unreasonable in one piece of ground in a parish being dedicated to the recreative use of the inhabitants of the parish, and all the cases recognise the validity of such a custom. [AMPHLETT, B.-In his judgment in Race v. Ward (4 E. & B. at p. 713) Lord Campbell, C.J. refers to the case of Abbott v. Weekly in Levinz (ubi sup.) and says "It is a good custom for all the inhabitants of a parish to dance in a particular spot or the like."]

Masterman in reply.-The assumption that this ground is a village green, and that its destruction will be wrought by the court giving judgment for the plaintiff, has no foundation in fact. The close in question is an inclosed piece of land about an acre in extent, and it is found by the case to be the

plaintiff's freehold; it was formerly glebe land. It is rated to the poor and tithes have been commuted and paid in respect of it. Certainly since 1780 it has not in any way been waste of the manor. Taking its name "The Maypole Piece," the utmost there could be gotten from that would be that, as in Mounsey v. Ismay, the parishioners might have a right to dance there on May Day. All the cases that have been cited are cases of limited rights; and Millechamp v. Johnson shows that a custom for all kinds of games at all times is uncertain and too large.

KELLY, C.B.-I have had very considerable doubt in the course of the argument of this case, arising principally from the fact that, to hold the custom claimed by the defendants here to be good, would be practically to deprive the owner of the freehold of the whole beneficial enjoyment and use of the entire surface of the piece of ground in question. It is a case, therefore, which requires very clear authority to be shown in favour of the defendants' contention that the custom as claimed by them is a good custom. Now the authorities which have been cited to us on the one side and the other in argument are the case of Millechamp v. Johnson on the part of the plaintiff, and the cases of Abbott v. Weekly and Fitch v. Rawling on the part of the defendants; and these authorities are entirely opposed to each other, and, it being im possible to reconcile them, the court have to decide between them. In Millechamp v. Johnson a custom for "all the inhabitants of a town to play at any rural sports or games in the close of the plaintiff at all times of the year at their will and pleasure" was held to be a bad custom; though not on the ground that the claim extended to "all times of the year," for as to that objection which was taken in the case, the court were of opinion that "there was no weight in it," for that 'all times of the year' must be taken to mean all legal and seasonable times of the year," but on the ground that "the custom as laid extending to any rural sports was too general and uncertain." On the other hand we find in Abbott v. Weekly and Fitch v. Rawling (ubi sup. respectively) decisions, which, if they are to be followed, are decisive of the present case in favour of the defendants. In both those cases, as in the present case, the right claimed was unlimited both as to the games, sports, pastimes, and recreations to be indulged in on the ground, and which when indulged in would necessarily occupy the whole surface of the land, but also as to the times when the right might be exercised, for that extended to "all times of the year; so that there was no moment of time when the owner of the soil could enjoy or make any profitable use of it, as there are some games and sports which in being played or pursued necessarily occupy every inch of the surface of the ground so played upon. The whole question then is, which of these conflicting authorities we are to follow and give effect to. We are dealing, it must be remembered, with a matter affecting an individual owner of a small piece of land on the one band, and the rights and privileges of all the inhabitants of an entire parish on the other; and it is so much for the physical and moral benefit and advantage of those inhabitants that they should have rational and healthful recreation, and that they should have a piece of ground on which they may be able to indulge in the exercise of all lawful sports, games, and pastimes, that I think the benefit and advantage accruing to them from the right claimed out

[Ex. Div.

weigh the injury and disadvantage arising therefrom to the owner of the land. Having then the authority of the cases of Abbott v. Weekly and Fitch v. Rawling in favour clearly of the defendants in this question, to say nothing of the additional weight given to that authority by the observations of Pollock, C.B. and Martin, B. in Mounsey v. Ismay (ubi svp.) which have been referred to in the course of the argument, and finding only the solitary and not very decisive authority of Millechamp v. Johnson (ubi sup.) the other way, I think we ought to adhere to and to follow the first mentioned authorities, and to hold in favour of the inhabitants of this parish that the custom claimed by them in this case is lawful, reasonable and good.

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to

CLEASBY, B.-I am quite of the same opinion. The one question put to us and which we have to consider and answer, is whether the custom claimed in this case is a good and valid custom and the judgment of the County Court Judge correct? The custom as claimed, and found by the judge, is for the inhabitants of the parish in question erect a Maypole on the ground, and dance round and about the same, and otherwise enjoy any lawful and innocent recreation at any times in the year on the said ground." Now I am of opinion that that is a good and valid custom. I believe that the proper meaning of the word "custom" as used and applied in a case like the present, is something having the effect of a local law arising from the consent of all the inhabitants of a particular district from before the time of legal memory. But the general law of the land requires that this kind of local law shall be both reasonable and certain. Now, with regard to the reasonableness of this custom, it seems to me that all the authorities to which our attention has been directed in the course of the argument, are conclusive in favour of the custom on that point. There are, in the first place, the cases of Abbott v. Weekly and Fitch v. Rawling (ubi sup.) with which, so far as the reasoning goes, the case of Millechamp v. Johnson, in Willes agrees; we have further the judgment of Lord Campbell, C.J. in Race v. Ward (ubi sup.) and the opinion of Lord St. Leonards in Dyce v. Hay (ubi sup.) in the House of Lords. The other question, as to the custom being sufficiently certain, is a more difficult one. In Millechamp v. Johnson (ubi sup.) the right was claimed to play at any rural sports or games," and that was held to be too general and uncertain; but, in the present case, the custom claimed is "to erect a Maypole and dance around it and otherwise enjoy any lawful and innocent recreation." Now I do not think that this addition to the specified sport of "erecting a Maypole and dancing round it," of otherwise enjoying any lawful recreation" makes the custom bad on the ground of uncertainty. It would not, I think, be reasonable to expect that any more specific description of the nature of the particular sports or recreation to be indulged in should be given. They specify the erection of a Maypole and dancing, and then add generally the enjoying "any lawful and innocent recreation." I do not think, therefore, that we should be justified, having regard to the authorities, in saying that there is such uncertanity in the present case as to .invalidate the custom; though, no doubt as appears from the note to the case in Willes' Reports, the merely saying "any rural sports," without any thing more, was held to be too uncertain. On the

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plaintiff's claim to a certain proportion of such sum as the defendant should win by such betting and wagering.

Joinder in demurrer.

R. Purvis for the plaintiff in support of the demurrer to the plea.-The defendant will no doubt rely on sect. 18 of the 8 & 9 Vict. c. 109 (the Act to amend the law concerning Games and Wagers), which enacts "That all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made." That section however it is submitted does not apply to the present case. No doubt a betting or wagering contract is thereby rendered void, but is not made illegal, and that this is so is clear from the case of Fitch v. Jones (5 E. & B. 238; 24 L. J. 293, Q.B.). That was an action on a promissory note by an indorsee against the maker, and the plea was that the defendant made and delivered the note to the indorser in payment of a bet on the amount of hop duty, and that the plaintiff took it without value, and it was held by the Court of Queen's Bench that, although proof that a negotiable instrument was affected with fraud or illegality in the hands of a previous holder would call on the plaintiff to prove value, yet that the presumption did not arise where the previous holder merely held without consideration; and that a bet, though void, and therefore no consideration, was not illegal so as to raise the presumption of indorsement without value. Lord Campbell, C.J., in his judgment there said, "The question comes to be whether this note was given for a consideration merely equivalent to no consideration, or whether it was given in an illegal transaction. I am of opinion that the note did not take its inception in illegality within the meaning of the rule. The note was given to secure payment of a wagering contract which, even before stat. 8 & 9 Vict. c. 109, the law would not enforce, but it was not illegal; there is no penalty attached to such a wager, it is not in violation of any statute, nor of the common law, but is simply void, so that the consideration was not an illegal consideration, but equivalent to no consideration at all." Erle, J., in the same case said, "The question is whether this note was brought within the category of notes tainted with illegality within the meaning of the rule. I am of opinion that it was not. I think that the defendant might, without violating any law, make a wager. If he lost, he might, without violating any law, pay what he had lost, or give a note for the amount." So, again, in Knight v. Cambers (15 C. B. 562; 24 L.J. 121, C.P.), it was held to be no answer to an action for money paid by the plaintiff for the defendant's use at his request, that the money was paid in respect of losses on wagering contracts made void by the 8 & 9 Vict. c. 109, s. 18. [AMPHLETT, B.__refers to Sharp v. Taylor (2 Phillip's Chanc. Rep. 801), a case before Lord Cottenham, L.C., which illustrates the distinction between enforcing illegal contracts and asserting title to money which has arisen from them, and where it was held that one of two parties, who had possessed himself of the property of the firm, cannot be allowed

And

[Ex. Div.

to retain it merely by showing that, in realizing it, some provision of some Act of Parliament had been violated or neglected.] That case is strongly in favour of the plaintiff here. To the same effect as Knight v. Cambers, already cited, is that of Jessopp v. Lutwyche (10 Ex. 614; 24 L.J. 65, Ex.) This is not the case of a winner of a bet on a horse race suing the loser for the amount, to which the statute no doubt would apply, and the money would be irrecoverable; but it is in the nature of an action for money had and received. That the plaintiff was privy to the original transaction is immaterial. Where A. has received money from B. to the use of C. on an illegal contract or consideration it may nevertheless be recovered by C. in an action for money had and received, and A. would not be allowed to set up the illegality of the contract or consideration as a defence to the action : Tenant v. Elliott, 1 Bos. & Pul. 3; Farmer v. Russell and another, Ib. 296.

A more recent case of Johnson v. Lansley (12 C.B. 468) is precisely in point. There A. and B. jointly made bets with third persons on horse races. B. received the money, and gave A. a bill accepted by C. for his share, and it was held that A. was not prohibited by sect. 18 of the 8 & 9 Vict. c. 109 from suing C. on the bill. As was said by Maule J., in that case, "A duty arises on the part of the defendant to pay over his share to his copartner." The defendant was bound to account for this money to the plaintiff. The losers having paid the defendant could not get the money back, and it would be unjust that the latter should retain it. He cited also, Nicholson v. Gooch (5 Q. B. 999; 25 L. J. 137, Q.B.), and particularly the observations of Crompton J. in that case.

Hill v. Fox, in error from this court, 4 H. & N. 352;

Flight v. Reed, 8 L. T. Rep. N. S. 638; 1 H. & C.
703; 32 L. J. 265, Eq.;

Bubb v. Yelverton, (before the M. R.) 22 L. T. Rep.
N. S. 258; L. Rep. 9 Eq. Cas. 471; 39 L. J. 428,
Ch.

W. Graham, for the defendant, contra, supported the plea, and contended that it was good. It was not necessary to dispute much of the argument, or the cases cited on the other side. The ground taken by the defendant here is that if no consideration was given for this cheque the plaintiff cannot recover upon it. The present is an attempt to recover on an illegal contract, and the case differs entirely from the cases of money bad and received. The consideration in this case was illegal, and the transaction wholly void under the statute of 5 & 6 Will. 4, c. 41, sect. 1. It is a different thing altogether from a bet on which ready money is paid at the moment. Here the contract was that A. should go and bet on horse racing, and pay the proceeds of his winnings or the part of them to B. That was a void contract under sect. 18 of the 8 & 9 Vict. c. 109, and if so there was no considera. tion for the defendant's cheque. It is not a contract to pay a specific sum, but a contract to advance money for purposes of gambling. The fact that the defendant has been paid the various bets, does not make him an agent. The case is within the very mischief against which the Act was directed, and the contract being void as a contract 'by way of gaming or wagering" within sect. 18, it is submitted, is void, and the demurrer to it should be overruled.

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Purvis was not called on to reply.