go over to the survivors or survivor. But inasmuch as all the eight legatees have died in the lifetime of Martha Barton, the tenant for life, the question now is, who has become entitled to the residuary estate under the gift in remainder? The construction relied on by Mr. Jones and Mr. Chitty is, that the words "survivors or survivor" apply to the death of each legatee, so that as each died his or her share went to the then survivors, that is, when the first died his share went to the seven who survived; when the next one died his share went to the six, and so on; the consequence of which would be, that of all those persons the only one who would not get anything or transmit any interest to his representative would be the one who died first, because on the death of the second, although his original eighth share would go over to the six survivors, his seventh of an eighth, which had accrued to him upon the death of the first, would pass to his representatives; and so on upon each successive death.

Now, this would be a very fantastic disposition of property, and, in my opinion, opposed to every probable intention of the testator. In all these cases of construction certain rules have been adopted by the Court with the view of carrying out the probable intention of a testator. One of these is, that if there be a gift to a person for life or a limited period, and then over to a class, and the "survivors or survivor" of that class, the word "survivor" is uniformly referred to the period of distribution. That was settled by Cripps v. Wolcott with respect to personal estate, and as to real estate by the more recent case of Gregson's Trusts (2). In the present case it is not disputed that if there had been a gift to Martha Barton for life, and after her death to the eight legatees, or the survivors or survivor of them, then if only one survived, that one would have taken the whole; or that if all the eight had died in her lifetime, there being no person or persons to answer the description of "survivor or survivors," the original gift in favour of the whole class would remain unaffected by the survivorship clause, and

(2) 2 De Gex, J. & S. 428; s. c. 34 Law J. Rep. (N.S.) Chanc. 41.

the property would go to the representatives of the eight. But the gift is not made precisely in that form, and the Court must determine to what period the words of survivorship refer. What is the testator directing his attention to? There is a gift in the will to Martha Barton for life, and after her decease to the five persons named in the will, to whom three more are added by the codicil, and then there is a clause of survivorship in the event of any of the legatees dying before the death of Martha Barton. The testator was directing his attention to the death of Martha Barton, and the words "survivors or survivor" must, in my opinion, be taken as referring to that period. Then there being at that time no survivors or survivor, what effect can the divesting clause have upon the original gift? It can have no operation at all. I drew the attention of counsel to Sturgess v. Pearson, which, in my opinion, is the same in principle as the present case, and that case was founded upon the decision of Sir W. Grant, made as long ago as 1800, in the case of Harrison v. Foreman.

[His Honour commented upon the cases referred to, and continued]-But it is said that the construction which I am here putting on the words "survivors or survivor" is opposed to Lord Lyndhurst's decision in Crowder v. Stone, which decision is, no doubt, in favour of Mr. Jones's and Mr. Chitty's contention, because if I were to follow that case the decree here would be, that on the death of each legatee his share went over to the then survivors. It appears to me that great inconvenience would arise from such a construction, nor could it be consonant with the testator's intention; and although very great weight must necessarily attach to any decision made by that eminent Judge, my impression is, that his decision has never been followed in any case in which Harrison v. Foreman and Sturgess v. Pearson were cited. Certainly Littlejohns v. Household is directly opposed to it, as well as Cambridge v. Rous. I think, therefore, the law is now settled that where there is a tenancy for life, with remainder to a class, and the survivors or survivor of that class, and none of them survive the tenant for life, the divesting clause has no operation. Here the testator was directing his attention solely to the

up to the month of November, 1867, supplied the said defendant George Smith with beer, and the said deposit and memorandum of equitable mortgage was made and executed by the said George Smith to secure, not only cash advances made to him, but also sums of money in which he might become indebted to the said firm of Felix

Calvert & Co., or to us for beer so supplied. It is the custom of the trade between brewers and publicans that such a deposit and memorandum should be given by the publican to the brewer, and that such memorandum and deposit should be a security for all sums of money due from the publican to the brewer for beer supplied by the brewer to the publican, and such security is always considered as a first charge on the hereditaments to which the deposit and memorandum relate, and is always considered as subsisting, unaffected as to further advances or otherwise by the second charge on the same hereditaments which is usually given by the publican to the distiller. The plaintiffs, as distillers, supplying the said defendant George Smith with spirits, were at and before the said 11th day of July, 1865, aware of the customs of trade herein before mentioned, and the said memorandum of the 11th day of July, 1865, was made upon the footing of such custom."

In support of this allegation, the Brewery Company adduced the evidence of the solicitors of brewers and others connected with brewers, who stated that the practice of brewers was to take first mortgages of the public houses to which they supplied beer, and that the distillers who supplied the same houses with spirits usually took a second mortgage of the same premises, and they gave some instances in which the distillers, as second mortgagees, had allowed the brewers to be paid the amount of their book debts for goods supplied after notice of the second mortgage in priority to the claims of the distillers as second mortgagees; but the evidence did not establish such a practice as the invariable and universal custom of the trade. On the other hand, the plaintiffs' evidence went to shew that the practice of distillers taking second charges for their book-debts did not extend back beyond a period of ten or twelve years.

Mr. Amphlett and Mr. A. G. Marten, for the plaintiffs, relied upon the authority of Rolt v. Hopkinson, 25 Beav. 461; s. c.

3 De Gex & J. 177; 28 Law J. Rep. (N.S.) Chanc. 41: s. c. (House of Lords), sub nomine Hopkinson v. Rolt, 9 H.L. Cas. 514; 34 Law J. Rep. (N.S.) Chanc. 468,

and asked that the defendants, the brewery company, might be paid in priority to the plaintiffs only so much as was due to them when they had notice of the plaintiffs' second mortgage. As regarded the alleged custom of trade, it was not sufficiently established by the evidence. The limits to which it extended were nowhere stated. Nor did the evidence prove it was a universal or general custom. In fact, until about ten years since, it had not been the practice for distillers to take a mortgage of public-houses as a security for goods supplied in the way of their trade.

Mr. Kay and Mr. Decimus Sturges, for the brewery company, argued that the evidence sufficiently shewed that the custom was established, and the plaintiffs took their second mortgage with a full knowledge of its existence, and with the intention that the brewery company should have a first charge on the mortgaged property in accordance with it.

Mr. Edmund James appeared for the defendant Jackson.

Mr. W. Pearson, for Leah's assignee in bankruptcy.

Mr. Amphlett replied.

JAMES, V.C. said the question in this suit was between the plaintiffs and the defendants, as the first and second mortgagees of a public-house, the mortgages being made in the usual manner, to secure moneys due to the plaintiffs and the defendants respectively at the date of their respective mortgages and future advances. The plaintiffs said that by the law of the land their second mortgage was not affected by advances made to the mortgagor by the brewery company, as first mortgagees, after they had given to the brewery company notice of their second mortgage, and they relied upon the principles of law laid down in Hopkinson v. Rolt (1). These

(1) 9 H.L. Cas. 514; s. c. 34 Law J. Rep. (N.S.) Chanc. 468.

principles as a general rule were not contested by the defendants, but they said that in this case there were particular circumstances preventing the application of the rule. They did not rely upon any personal dealing affecting the rule, but they said to the plaintiff's, "You are distillers; we are porter brewers; and there is a custom of trade by which, as between these two classes of tradesmen the brewer, as first mortgagee, is entitled to a priority over the distiller as second mortgagee, in respect of moneys become due to him from the publican for goods supplied even after notice of the distillers' second mortgage, and the rule of Hopkinson v. Rolt is not to be applied in contravention of this custom."

Before considering the evidence with regard to the existence of such a custom as alleged, a question arose as to the legal validity of such a custom, supposing its existence should be satisfactorily established. In the first place, it was a custom which would affect the legal validity of written documents tending to alter interests in land, although there was a law that to affect the interest of persons in land there must be some writing. No doubt there were some instances in which the enactments of the legislature had been evaded by decisions of this Court, but the rule was to follow the intention of the legislature. His Honour would be slow to extend anything by which an interest in land could be altered by a parol arrrangement or understanding between the parties not in writing. It was further to be observed, that in this case there was an absence of mutuality between the first and the second mortgagees. There was no direct agreement between them, and the only link between them was, that they both supplied with goods a common customer. It would be very difficult to apply a custom such as alleged to persons in these circumstances. In the cases relating to the custom of the Stock Exchange, which had been lately discussed a good deal, the custom of the Stock Exchange had been recognized, but then it had been shewn to be a part of every contract entered into upon the Stock Exchange. So there might be a custom introduced into contracts relating to land, as in the common case of a landowner letting his land to a tenant. But these NEW SERIES, 38.-CHANC.

cases differed from the custom attempted to be set up by the defendants, which was one of the same kind as if it were alleged that where a citizen of London and a farmer in Suffolk were creditors of the same party, the citizen of London should have priority. Then it had been pointed out by Mr. Amphlett that there was no evidence adduced to shew what were the limits of the custom. Within what district and to what classes did it apply? Within how many miles of St. Paul's did it extend? Was it to prevail between a brewer at Highgate and a distiller at Hounslow, or what were the limits of it? The absence of evidence on this head was a very serious objection in the way of giving operation to any such custom. But when you came to consider the evidence in support of such a custom apart from the question as to its extent, it seemed wholly insufficient to establish the existence of it. The security of the plaintiffs was given in 1865. It was proved that the practice of distillers taking charges from publicans only commenced in 1858, so that the alleged custom, if it existed, must have arisen in those seven years. From the manner in which the trade was conducted, it might be inferred that the instances in which the publican would be unable to pay both the brewer and the distiller would be rare, and accordingly there would be few instances in which the custom could arise. Moreover, the evidence shewed that the securities of the brewers and distillers were usually taken contemporaneously at one of the "changes" of the public-house, at which both parties. were present; and under these circumstances different considerations might arise, and a distiller who had been present on such an occasion might possibly be unable afterwards to exercise his right. But that case was different from this, where the securities had been given independently. Then it was observable that no publican or distiller had been called by the defendants to prove the custom. Their evidence was confined to that of persons connected with the brewing trade, who stated that the brewers did habitually get paid in priority to the distillers. But in some of the instances spoken to by the defendants' witnesses this appeared to be done, not in pursuance of any custom, but in pursuance

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