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may direct. The applicant intended to avail himself of the enactments of the statute, but was advised that before he could apply to the Court of Chancery he must be appointed administrator in this court. I am of opinion that the reverse course should be pursued, and that he should first apply to the Court of Chancery. When he has obtained authority to interfere in the lunatic's affairs in that court, I will make an order under the 73rd section of the Probate Act, granting him administration for the use and benefit of the sister during her lunacy.

In the Goods of M. A. J. LUKE, Deceased.-May 2. Will-Incorporation-Reference insufficient.

The deceased signed her name to a testamentary paper, but not in the presence of two witnesses, nor did she acknowledge her signature in their presence. She afterwards duly executed another paper, in which she nominated A. executor, and empowered him to draw her money, and employ it for her after her decease in all things necessary. The first paper was lying before her at the time she executed the latter, and she placed both of them in one envelope, and delivered it to A., in whose possession it remained until the death of the deceased :— Held, that the first paper was not so referred to in the latter, that it could be incorporated with it, or admitted to probate.

Mary Ann Jennings Luke, late of No. 40, Portlandsquare, Plymouth, Devonshire, spinster, died on the 5th August, 1864. She executed a document, as her will dated 40, Portland-square, the 11th May, 1864, but neither signed it, nor acknowledged her signature the presence of two witnesses. It was to the following effect:-" I, Mary Ann Jennings Luke, request the Rev. John Comins, rector of North Huish, the husband of my niece, to take the management of whatever money I may die possessed of to pay my funeral expenses," &c. She then disposed of a few trifling legacies, and left the residue to Mr. Comins, and concluded:-"As I am at present utterly uncertain what money I may leave, I wish to add, that I mean Mr. Comins to remunerate himself for his trouble and great kindness, at all events. " (Witnessed)

M. A. JENNINGS LUKE. "As witness my hand, this 12th day of May, 1864. "WILLIAM MAY, "WM. Jos. SQUARE,

Surgeon, 22, Portland-square, Plymouth." On the 30th July, 1864, the deceased informed Mr. Comins that she had prepared a document of a testamentary character, and desired him to hand her a desk, out of which she took such document, and requested him to inspect it, which he did. It was in the following terms: "I name the Rev. John Comins, of North Huish Rectory, as my executor, empowering him to draw any money out of the Naval Bank, Plymouth, to employ it for me, after my decease, in all things necessary." This document was already signed by the deceased, but she subsequently acknowledged her signature in the presence of two witnesses. At the time she so executed this paper, the one dated the 12th May, 1864, was lying before her, and she placed both the writings in an envelope, which she delivered to Mr. Comins for safe custody, who took the envelope and the papers it contained to his residence at North Huish, and kept them in his possession until after the death of the testatrix.

C. A. Turner applied for probate of both these papers, as containing the will of the deceased. There is such an ambiguity in the language of the paper duly executed, that the Court will receive parol evidence No. 541, VOL. XI., NEW SERIES.

as to the intention of deceased; and such evidence will satisfy it that the paper of earlier date should be included in the probate. [He cited Key v. Key (4 De G., Mac., & G. 73; 1 Jur., N. S., 372); Allen v. Maddock (11 Moo. P. C. 426); In the Goods of Almosnino (1 Swab. & T. 508; 6 Jur., N. S., 302); and Van Straubenzee v. Monck (3 Swab. & T. 6; 8 Jur., N. S., 1159).] Sir J. P. WILDE.-It has been argued, that in all cases it is the duty of the Court to ascertain the testator's will; but the statute requires that this will should be expressed through one medium, namely, a paper in writing, executed in a certain way. The only paper properly executed by the deceased is the one before me, which is in these words:-"I name the Rev. John Comins as my executor, empowering him to draw any money out of the Naval Bank, Plymouth, to employ it for me, after my decease, in all things necessary." I am asked, looking at the contents of this paper alone, to conclude that the deceased, in using the words "in all things necessary," meant to refer to some other paper. If I were at liberty to receive parol evidence, it might be shewn that the deceased had some such thought on her mind, but I cannot do so. It was held in Allen v. Maddock, and also in Van Straubenzee v. Monck, that an invariable condition to the admission of an unexecuted document to probate with one duly executed was, that the latter, in formal language, should contain a distinct reference to some other paper. Such reference is not found in this case, and I can only grant probate of the paper which was executed on the 30th July, 1864.

COURT OF CHANCERY.

HANMER v. CHANCE.-Feb. 8 and 9, and March 22. Prescription Act-Manor-Copyholder-Custom to dig sand-Evidence.

The 1st section of the Prescription Act, 2 & 3 Will. 4, c. 71, relating to profits à prendre, applies only to cases where a man claims by custom, prescription, or grant, a profit or benefit from the land of another, and not to cases where a copyholder claims a right on his own tenement, according to the custom of the manor. Although, by the 6th section of that act, no presumption in favour of the claims is to be derived from a user short of thirty years, the statute does not take from such shorter user its weight as collateral evidence of a grant. In a suit by a lord to restrain a copyholder from digging vitreous sand on his own tenement, evidence of a custom to dig vitreous sand for twenty-seven years, and of a custom to dig sand generally for a long period, was adduced:-Held (reversing the decision of Vice-Chancellor Wood), that the evidence of the custom was sufficient.

A

custom in a manor may be proved by one instance. Appeal from a judgment of Vice-Chancellor Wood, pronounced on the 16th January.

The freehold and inheritance of the manor of Leighton Buzzard, it was stated in the bill, was granted by King Edward IV to the dean and canons of Windsor, who remained lords thereof until January, 1863, when, by virtue of the powers vested in the Church Estate Commissioners by the acts of the 13 & 14 Vict. c. 94, and 24 & 25 Vict. c. 131, and other acts, they sold and conveyed the same to the plaintiff Colonel Hanmer. All mines and quarries within the manor were included in the conveyance.

Under certain of the copyhold lands of the manor there was a stratum of twenty or thirty feet of a valuable silver vitreous sand, of a kind largely used in the manufacture of glass. In 1836 the defendants Messrs. Chance, the glass manufacturers, of Birming

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Customary rights of copyhold tenants differ from prescriptive rights. The former are usages which apply to a number of persons in a certain district or locality, but prescriptive rights are claimed by one or more person or persons as existing in themselves or their ancestors, or as attached to a particular estate. When the supposed obstacle from the Prescription Act is removed, there seems to be but little difficulty in the case. On the part of the defendants a considerable body of evidence in support of the alleged custom has been adduced, and it has not been met by counter evidence on the part of the plaintiff. First, as to the vitreous sand, Mr. Chance, a glass manufacturer, proves, that in the years 1836, 1837, and 1838, he and his partners bought upwards of 1000 tons of this sand from one of the copyholders of the manor, and that they afterwards bought his copyhold for the sole purpose of getting the sand; and that between 1842 and 1858 upwards of 50,000 tons had been dug and taken away by them from the land so bought. A gentleman named Adams, who has resided or held property within the manor for the last fifty-five years, and has been a copyholder for the last twenty-eight years, proves that for the last twenty years he has raised and sold sand from his copyhold tenement in considerable quantities, and he deposes that it has always been generally reputed, that the copyholders of the manor had the right of digging sand and gravel from their respective copyholds, and of carrying away the same as they might think proper. He further states, that no royalty has ever been paid to the lord, or license obtained from him, for any such act. The next witness, a Mr. Dumbleton, a tradesman at Leighton Buzzard, proves that he has been a copyholder of the manor for the last forty-seven years, and that it has been the custom of the manor ever since he was first acquainted with it, for the copyholders thereof to dig sand, sandstone, and gravel from their copyholds within the manor, and to carry away the same as they pleased; and that almost ever since he has been such copyholder he has known large quantities of sand to have been dug from time to time from the copyholds, and removed from the manor. The witness then deposes to the fact that he himself has from time to time during the last thirty years had considerable quantities of sandstone dug out of a garden belonging him, and being part of the copyholds of the manor, and that he has also dug gravel in large quantities from a copyhold close within the manor, and sold it to the surveyors, and that he knew that a great deal of gravel got from the copyhold lands of the manor had for many years been sent from Leighton Buzzard to other places. There are several other witnesses whose testimony is not open to any remark, and who also prove that sand, sandstone, gravel, and clay had been for many years openly dug out and raised from the copy hold tenements by the copyholders, and sold and carried away from the manor. There are also witnesses who prove the general reputation within the manor, that the copyholders had the right of digging and carrying away sand from their tenements. None of these witnesses were cross-examined by the plaintiff, nor did he desire to have them personally examined before the Vice-Chancellor.

It can hardly be said that there is any counter evidence on the part of the plaintiff. The present deputy steward of the manor is not called by him. His solicitor, Mr. Jones, a gentleman resident in London, and who is the present steward of the manor, states, that from his knowledge of the manor, and the customs of the same, he verily believes that there is not any custom of the manor authorising the copyhold tenants to open mines or quarries upon their copyholds, nor to dig and carry away the soil thereof,

or clay, gravel, or minerals under the same. The belief of this witness is not very material, for the facts on which it is founded are not stated; and further, the custom which the witness does not believe to exist is not the custom stated by the defendants. In addition, there is the evidence of a solicitor, who assisted a former steward of the manor, and who deposes, that he never heard of the alleged custom authorising the copyholders to dig from their copyhold tenements either sand, gravel, sandstone, or clay. There is, also, the evidence of the chapter clerk of the dean and canons of Windsor, the late owners of the manor, who deposes, that he has never been aware of any alleged custom, or other claim on the part of the copyholders, tending to abridge the right of the lords of the manor for the time being to the soil thereof; and that, in the recent sale to the plaintiff, the mines and minerals within the manor were taken into account in fixing the value and price to be paid. Similar evidence is given by the land agent and land surveyor employed by the dean and canons in their recent sale to the plaintiff.

In addition, evidence was given by the plaintiffs from the court rolls, of six presentments made by the homage at a court holden on the 16th June, 1709, of which the first five relate expressly to the common heath and commonable places within the manor; and the sixth was in these words:-"Item.-Wee order that noe person or persons shall digg any clay or sand within this mannor to sell, excepting upon a peece of ground called Lamsey, unlesse it be for the use of the inhabitants of Leighton Buzzard and Heath and Reach, upon payne to forfeite and pay to the lord of this mannor for every default 17. 198. 11d.;" which is the same penalty as that imposed for each of the five previously described trespasses on the common heath. The defendants contend, and I think rightly, that the sixth presentment, like the rest, applied only to the common heath and commonable places within the manor. It is proved by the defendants, and must be inferred from the entry, that the piece of ground called Lamsey was at the time part of the waste of the manor. If, therefore, these entries relate, as I think they do, to the waste or commonable places within the manor, they appear to me, in conjunction with the oral testimony, to support the conclusion, that the right of the copyholders to dig sand and clay within their own tenements was not disputed.

The Vice-Chancellor appears to be much influenced in his opinion by the extent of the manor, and the insufficiency of the defendants' evidence to prove a custom extending over so large a district. But the custom of digging would be exercised only where the veins or beds of sand, gravel, and clay are found; and there is no evidence that they exist generally throughout the manor. The law has laid down no rule as to the extent of evidence which is required to establish a custom, or from which the presumption or inference of the fact of a custom may be readily drawn. It is the province of a jury to draw this conclusion of fact. But in several reported cases the Courts have refused to disturb the verdicts of juries as to a custom of a manor, even when founded on very slender evidence. Thus, in Doe v. Mason (3 Wils. 63), a single admittance to a copyhold was evidence to prove the custom of the manor for lands to descend to the youngest nephew; and although there was evidence of the contrary, from a presentment of the homage entered in the court rolls, the Court of Common Pleas refused a new trial. So, in the case of Roe v. Jeffrey (2 Mau. & S. 92), a single instance of a surrender in fee by tenants in special tail of a copyhold estate was considered evidence to prove a custom within the manor to bar entails by surrender, although there was proof

of the fact of a recovery having been suffered at an earlier period by a tenant in tail to bar the entail; and it was said by Lord Ellenborough, that although it is true that one act undisturbed does not make a custom, yet it will be evidence of a custom; and Mr. Justice Le Blane said it was a fact on which it was competent for a jury to find such a custom. There are other decisions to the same effect.

I cannot, therefore, concur with the Vice-Chancellor in his opinion of the insufficiency of the evidence in the present case; and sitting as a jury I feel bound to give effect to it and to accept it, being uncontradicted, as sufficient evidence of the alleged custom. The acts of the copyholders have been open and notorious, and it is hardly to be supposed that, if there was no custom, they would have remained unchallenged by the lord, inasmuch as if unwarranted they would have formed a cause of forfeiture by the copyholders of their tenements; and the lord, therefore, has always had the strongest interest to take advantage of the acts done. This raises a very strong presumption against the lord, and would render even slight evidence of a cogent character. I cannot listen to the suggestion, that the late lords of the manor were ecclesiastical persons, and negligent of their rights. There must be one rule applicable to the ecclesiastical person as well as to the layman. In the present case I am of opinion, that a jury would be not only warranted, but bound, upon the evidence of the defendants, to find in favour of the custom; and I must, therefore, reverse the decree of the Vice-Chancellor, and dismiss the bill, with costs.

Notes for reference-Salisbury v. Gladstone (9 H. L. C. 692;

8 Jur., N. S., 625); Brow. Real Prop. Act, 10.

Ex parte CHAVASSE, re GRAZEBROOK.-Jan. 18 and April 22.

Neutral-Belligerent-Illegal contract-Contraband of

war.

amount was invested by the Confederate consignee in the purchase of cotton, which, owing to the strictness of the blockade, had to be stored in the Confederate States whilst waiting an opportunity of shipment to England. On the 17th June, 1863, Mr. W. J. Grazebrook was adjudicated bankrupt; and on the 19th February, 1864, Mr. H. Chavasse executed a deed of assignment for the benefit of his creditors, under the 192nd section of the Bankruptcy Act of 1861. His trustees under that assignment then presented their petition to the Liverpool Court of Bankruptcy, praying for an order to enable them to obtain possession of and receive the proportionate part or share t to which they were entitled in the cotton above mentioned. The commissioner, however, was of opi nion that the joint adventure was illegal, and that the Court could not afford any assistance in carrying it out. He, therefore, dismissed the petition with costs: and from that order the present appeal was brought. Daniel, Q. C., and De Gex, for the trustees of Mr. i H. Chavasse, contended, that for a neutral subject of ; Great Britain to carry contraband of war to a belligerent, or to break a blockade, was not illegal, accord- e ing to our municipal law, either in the sense of malum prohibitum, or malum in se; and that if to do so was contrary to international law, it only exposed the neutral taking part in such an adventure to the risk of capture, and to the penalties of international law, i. e. the loss of the cargo. [They referred to the Foreign Enlistment Act, 59 Geo. 3, c. 69; Wheat, Inter. Law, 813, last ed.; Holman v. Johnson (Cowp. 341); 1 Kent's Com. 145; The Rosalie and Betty (2 Rob. Adm. 343; 6 Rob. Adm. 386, note); The Nany (3 Rob. Adm. 122); The Imina (Id. 167); The Santissima Trinidad (7 Wheat. Rep. 283); Attorney-Gene ral v. Sillem (2 H. & C. 505; 10 Jur., N. S., 262, 393, 446); and Sharp v. Taylor (2 Ph. 801).]

Aspinall, Q. C., and C. Russell, for the assignees of Mr. Grazebrook, argued that the contract between The law of the bankrupt and Chavasse was illegal. nations was part of the law of England, and a contract in violation of the law of nations would not be

in the neutral State.

This was an appeal from an order of Mr. Commissioner Perry, made in the Liverpool District Court of Bankruptcy on the 29th September, 1864.

The bankrupt, Mr. W. J. Grazebrook, a merchant, of Liverpool, entered into an agreement with Mr. H. Chavasse, a sword manufacturer of Birmingham, for the purchase and shipment of arms and ammunition to the Confederate States of America, there to be sold for their joint benefit and account. At the time of the contract, and during the whole period from thence to the date of the order appealed from, the Confederate States were at war with the United States of America; and all the ports of the former States were strictly blockaded by the latter. A large number of Enfield rifles and a quantity of ammunition were, in pursuance of this agreement, shipped by Messrs. Grazebrook and Chavasse on board the steamer Modern Greece, which started from the port of Hull on the 20th April, 1862. The vessel was wrecked off Wilmington, in North Carolina, and a considerable portion of her cargo was lost, and the remainder was much damaged. The greater portion of the Enfield rifles were, however, saved, and, after being cleaned and repaired, were sold in the Confederate States for an average price of seventy dollars a rifle, having originally cost in England on the average 27. 11s. 6d. a piece, exclusive of packing, insurance, freight, &c. Part of the proceeds of these rifles were remitted to the bankrupt, Mr. Grazebrook, but by far the larger

punishable, and yet the contract might be void. They only asked the Court to hold its hand. If the contract was enforced, it would be the first decision of such a nature. Such a contract was against public policy, and of the same character as a contract to compromise an offence of a public nature, which is invalid. (Keir v. Leeman, 6 Q. B. 308). It was for the interests of trade and of this country, which might in turn become a belligerent, that such a transaction as the present should not be supported. [They cited Arn. Mar. Ins. 766, 2nd ed.; Naylor v. Taylor (9 B. & Cr. 718): Medeiros v. Hill (8 Bing. 231); The Tutela (6 Rob. Adm. 177); 1 Duer on Mar. Ins. 623, 748, 750; 4 Steph. Com. c. viii; 16 & 17 Vict. c. 107, s. 50; the Proclamation of May, 1861; Bac. Ab. (Gwm's ed.). tit. "Prerog.," B., 405; Armstrong v. Armstrong (3 My. & K. 45); De Metton v. De Mello (12 East, 234); Cartis v. Perry (6 Ves. 739); and Brackenbury v. Bracken bury (2 J. & W. 391).]

Daniel, in reply, referred to President Jefferson's Answer, cited in 2 H. & C. 474; 10 Jur., N. S., 273.

April 22.-LORD CHANCELLOR.-In the view of international law the commerce of nations is perfectly free and unrestricted. The subjects of each nation have a right to interchange the products of labour with the inhabitants of every other country. If hostlities occur between two nations, and they become belligerents, neither belligerent has a right to impose or to require a neutral government to impose any re strictions on the commerce of its subjects. The belligerent power certainly acquires certain rights which