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hearing, yet it is not usual for a court of equity to suffer any fact to be proved by affidavit, because, in that case, the adverse party has no opportunity of controverting the truth of such fact, by cross-examining the witnesses; and according to the rule observed in courts of equity, no facts are capable of proof by witnesses vivá voce at the hearing, except the execution of deeds. As to the decree it was said, that the duty in question was a demand against the common rights and freedom of every subject of England, a burthen upon trade, and a tax upon a useful commodity; and that it could not be maintained, except upon a reasonable custom, supported by uninterrupted usage. 1st, It was not reasonable with respect to the present case; for though it might be reasonable and just to lay an obligation on foreign merchants who receive the benefit of trading to the port of London, to weigh all their goods at a public just balance kept by the city, in order to preserve an exact justice in commerce between foreigners and citizens; yet by several bye-laws, acts, or ordinances of the city, freemen of the city were exempted from such obligation; and as the goods of freemen were under no obligation to be brought to the city beam, or to be weighed there; and as, in fact, the goods in question were never weighed there but in the scales of the respondents at their own shops, they had therefore no benefit from this pretended [607] custom, and ought not to bear any burthen by means of it; and as the appellants were at no trouble or charge about it, they ought not to receive a reward for doing nothing. And 2dly, It was not proved that this duty had been paid by such masters of ships as were freemen, and imported only the goods of freemen; neither had any of the cases upon which trials had been had, or decrees obtained, come up to the present case; for none of the defendants in those cases were freemen, importing only the goods of freemen; and there fore, as it is not usual for courts of equity to establish rights or customs, especially such as are burthensome to the subject, and for which nothing is done without a trial at law by a jury, which is the birthright of every English subject; as the point now in question had never received any judicial determination, either at law or in equity; and as the appellants were better able to support the expence of a trial than the respondents, and must prevail in it, if, on a full examination, the merits and justice of the case would support this custom, it was hoped that the decree would be affirmed.

But after hearing counsel on this appeal, it was declared, that the court of Exchequer ought not to have refused to grant an order for the appellants to have liberty to read the depositions taken in the two former causes at the hearing of this cause, saving all just exceptions: and it was ordered and adjudged, that the decree complained of should be reversed; and that the respondents should severally account with and pay to the appellants the said duty of eight-penco per ton for all such cheese as had been imported by the respondents respectively into the port of London, eastward of London-Bridge. And it was further ordered, that the court of Exchequer should give proper directions to the deputy remembrancer of the said court for taking the said account. (Jour. vol. 24. p. 448.)

John Brown, being seised in fee of a real estate, and possessed of a leasehold house in Bow-street, Covent-garden, and of other personal estate, made his will, dated the 23d of June 1732, and thereby gave annuities to some persons, and [608] pecuniary legacies to others, and particularly a legacy of £500 to the respondent; and then the testator devised his manor of Hubbard's-Hall, and other lands in Essex, to the respon-