1867 SOWERBY V. COLEMAN. the whole beneficial use of the owner might be destroyed by such a usage. But here no such right is claimed,and Gateward's case (1) and Selby v. Robinson (2) have therefore no application. The custom is to a mere easement, and is similar to those which were allowed in Abbot v. Weekly (3) and Fitch v. Rawling. (4) The custom is not uncertain or wanting in continuance, because the persons entitled to use it may be sometimes practically unable to do so; it is sufficient if their title is defined. Neither is it rendered uncertain by the limitation to seasonable times, for the Court will determine, either with or without a jury, whether the time is seasonable, as was done in Bell v. Wardell (5), where a custom over arable land, at seasonable times, was held not to have been followed in riding over the land when corn was standing upon it. Here the plaintiff might have replied that the time when the trespass was committed was not a seasonable one, and issue might have been taken upon that fact. [KELLY, C.B. Is there any instance of such a custom as this having been successfully maintained, on behalf of the inhabitants of one parish, to be exercised in another parish?] In Mounsey v. Ismay (6) a custom for the freemen of Carlisle to hold races on a close in the neighbourhood of the city on Ascension Day was successfully pleaded; and in Tyson v. Smith (7) a custom was allowed for all victuallers to erect booths at an annual fair, on making a nominal payment to the owner of the soil. KELLY, C.B. I think these pleas cannot be supported. It was contended, and, but for the exception limiting the exercise of the alleged right to seasonable times, it would perhaps have been rightly contended, that a custom of this nature would be invalid, on the same ground on which a customary right to a profit à prendre is disallowed; for, the effect of a constant use by all the inhabitants of a parish of unknown extent over a piece of ground the extent of which is also unknown, might, and probably would, deprive the owner of all beneficial enjoyment of the soil. The limitation to seasonable times would no doubt, in the case of arable land, introduce a qualification which might bring the case within the authorities cited. There is no allegation, however, that the land in question is arable. But the ground on which I put my judgment, and which is, I think, conclusive of the question, is that this, being a custom of the nature above described, is claimed on behalf of all the inhabitants of one place, to be exercised and enjoyed in another and a different place. During the argument I put to the learned counsel for the defendant a question similar to that put by Littledale, J., in Blewett v. Tregonning (1): "Is there any instance where the inhabitants of one parish have established a claim to the exercise of such a right in another parish?" and I have received no satisfactory answer to that inquiry. One or two cases have indeed been cited which apparently conflict with our present decision, but they are not, in fact, opposed to it. One is the case of Mounsey v. Ismay (2), where the inhabitants of Carlisle successfully claimed a right to use a close in the neighbourhood of the city as a racecourse on a single day in the year. Another such case is Tyson v. Smith (3), where a custom of wide extent was sustained, on payment of a consideration to the owner of the soil, to use his soil for the erection of booths at a fair held during a few days in the course of the year. In these cases a custom was sustained, by which the owner of the soil was in fact restrained from any beneficial use of it for the time during which the right was exercised, but in neither case did this exclusion continue for more than a few days. The present case is totally different. Here all the inhabitants of the parish claim the right to go into the land of another person, and to use it for the purpose of exercising and training horses, at all "seasonable times" of the year; and construing that phrase, in conformity with Bell v. Wardell (4), to exclude the time when corn is growing on the land, yet, if the land be not arable, the exception is annihilated, and the right universal. Such a right, then, to exercise an indefinite number of horses, for an indefinite period of the year, would exclude the owner from the beneficial occupation of his property during probably the whole (1) 3 A. & E. at p. 572. (2) 1 H. & C. 729; 32 L. J. (Ex.) 94. (3) 9 A. & E. 406. 1867 SOWERBY v. COLEMAN. 1867 V. COLEMAN. I will year, and cannot be sustained on behalf of a parish or district SOWERBY beyond the limits of the place where it is to be exercised. only add that a comparison of the second and third pleas shews the evil consequences which would flow from admitting the extension of such a right to inhabitants of another district. The claim tends to widen its extent, and, if held valid in the smaller division, might spread in the course of time to the neighbouring hundred, or even to the neighbouring county. CHANNELL, B. I am of the same opinion. No substantial distinction has been pointed out between the second and third pleas, and the same judgment applies to both. I do not base my opinion on the ground that this amounts to a profit à prendre; I doubt whether it does. Nor, again, do I say that, if a compensation were made to the owner, the right might not be legally claimed; but I rest my judgment on the fact that the right, being of the kind already described by the Chief Baron, is claimed on behalf of the inhabitants of a parish to be exercised in a place not within the parish. If there were an allegation in the plea that the parish and the manor were co-extensive, or that Lilley Hoo lay within the parish, the right might perhaps have been admitted; but there is no such allegation. Neither is the right claimed on behalf of the inhabitants of the parish of Lilley, so far as it lies within the manor of Lilley; but it is only said that Lilley Hoo is in the manor of Lilley, and that the parish is in and adjacent to the manor. I also doubt whether the plea is not open to another objection. The right is claimed to exercise and train horses generally. It is true that in the justification it is said that the horses with which the trespass was committed were the horses of the defendant, an inhabitant of the parish of Lilley; but to support the plea, we must see that the custom is properly laid in the commencement. PIGOTT, B., concurred. Judgment for the plaintiff. Attorneys for plaintiff: N. C. & C. Milne, for Hawkins & Co., Hitchin. Attorneys for defendants: Dale & Stretton. PRIESTLEY v. PRATT AND ANOTher. Bankruptcy Law Consolidation Act, 1849 (12 & 13 Vict. c. 106), s. 125— Where a custom exists for the buyer to leave goods bought in the hands of the seller, and is so notorious as to be practically known to all persons dealing with the seller in his business, goods so left in the hands of the seller for a time not longer than is clearly within the custom, do not on the bankruptcy of the seller pass to his assignees, under s. 125 of the Bankruptcy Law Consolidation Act, 1849. TROVER to recover from the defendants, the assignees in bankruptcy of R. Grant, lambs and pigs, purchased by the plaintiff of the bankrupt before his bankruptcy. At the trial before Mellor, J., at the Lincolnshire summer assizes, it appeared that the lambs and pigs, together with two steers, were bought on the 10th of July, 1865. The plaintiff paid for the whole, and removed the steers, but left the lambs, which were sucking, and the pigs, on the bankrupt's farm, until it should suit his convenience to remove them. On the 15th of July, Grant was made bankrupt on his own petition, and the assignees took and claimed to retain possession of the lambs and pigs, as in his order and disposition at the time of the bankruptcy. Evidence was offered of a custom on the purchase of farm-stock to leave the animals bought upon the seller's premises, but the jury interposed, and said the evidence was unnecessary, for that there was a notorious usage and custom for the vendee of cattle to leave them in the hands of the vendor, for the convenience of the vendee, for a longer or shorter period, as might be arranged in each case. Upon this a verdict was taken for the plaintiff for 497., with leave to the defendants to move to enter a verdict for them, on the ground that the animals were in the order and disposition of the bankrupt at the date of his bankruptcy. A rule having been obtained accordingly, He con Wills (Digby Seymour, Q.C., with him), shewed cause. tended that as the jury had found as a fact, that a notorious custom existed for the buyer to leave the animals bought in the hands of 1867 Jan. 22. 1867 PRIESTLEY V. PRATT. the seller, the case was within the decisions of Re Terry (1); Prismall v. Lovegrove (2); and Watson v. Peache. (3) The Court then called on Field, Q.C., to support the rule. He relied upon Thackthwaite v. Cock (4) and Knowles v. Horsfall (5), and contended that a custom so alleged amounted to a general custom of England, for buyers to leave goods in the hands of sellers, until it suited their convenience to remove them. The case of Watson v. Peache (3) was distinguishable, on the ground that the bankrupt there was in the position of hirer of the barges, and a custom was proved to hire barges, and for the hirer to use them with his own name painted on them. It was not, therefore, as purchaser of the goods, but as the person letting them out to hire, that the defendant was there protected; but the present case was merely one of the purchase of goods, and if decided in favour of the plaintiff would almost have the effect of nullifying the reputed ownership clause in all such transactions. KELLY, C.B. This rule must be discharged. The question before us, and it is a question on which we have power to draw inferences of fact, is, whether we are to hold, upon the evidence given at the trial, that these animals were in the order and disposition of the bankrupt within the meaning of the Bankruptcy Act, 1849. That question depends in all cases on whether there is shewn to exist, with respect to the articles in question, any custom of trade, so notorious as practically to be known to all who do business with those dealing in such articles, and who are called upon to consider the question of giving credit to them, by virtue of which goods, in reality the property of others, are allowed to remain in the actual possession and physical power of disposition of the bankrupt. Looking at the circumstances of this case, it is difficult to imagine a stronger case of a notorious custom-notorious to all who are acquainted with the practice of farming. There is here no question of opposing evidence, but the jury themselves interpose in the course of the evidence, and |