V.C. M.] YEATMAN v. READ-BRAYNE v. REES-SCOTTO v. HERITAGE. Where an equitable mortgagee, by deposit of deeds, institutes a suit for foreclosure, the decree should direct that the owner of the legal estate should execute a legal mortgage, and should contain the usual provision for foreclosure of such legal mortgage. This suit was instituted by an equitable mortgagee, praying a foreclosure or sale in the usual way. The only question was as to the form of decree. Nalder, for the plt., asked for a decree for foreclosure in the form of the decree in The London Monetary Advance Company v. Brown, 12 L. T. Rep. N. S. 199, where it was ordered that the deft., the owner of the legal estate, might be ordered to execute a legal mortgage, and that then the decree might contain the usual provision for foreclosure of such legal mortgage. Eddis for the deft. [V.C. M. was now represented by 4207. New Three per Cent. Annuities. Mary Abraham died in 1844, and Mary Roberts died in 1865, and her representatives now claimed to have certain arrears of the annuity, which the dividends on the fund invested had not been sufficient to satisfy, paid out of the corpus of the fund. The present suit was instituted to administer the estate of the testatrix, Mrs. Maule. J. Pearson, for the plts., in the suit, maintained that the representatives of Mary Roberts were not so entitled. The question was one of intention, to be gathered from the words of the will. He cited Foster v. Smith, 1 Ph. 629; Baker v. Baker, 6 H. L. Cas. 616; Wright v. Callender, 2 De G. M. & G. 652; Eddis, for defts. in the same interest with the plt. Baily, Q. C. and D. Jones, for the representatives of Mary Roberts, maintained that they were entitled to make good the deficiency in the annuity out of the corpus of the fund. J. Pearson in reply. The VICE-CHANCELLOR, after stating the facts of The VICE-CHANCELLOR made a decree in the the case, said that nothing was more clearly settled form asked. son. Solicitors for the plt., Coverdale and Co. Monday, Dec. 10. BRAYNE v. REES. Annuity-Charge on corpus fund-Deficiency-Arrears -Intention. than that where an annuity was charged on a sum of money or upon an estate, if the dividends of the money, or the income of the estate, proved insuffiJack-cient to meet the annuity, the annuitant was entitled, in the one case, to have the arrears paid out of the fund, and, in the other case, to have so much of the estate sold as would be required to answer the deficiency. The decision in Foster v. Smith turned upon the particular circumstances of the case, there being a direction to convey the estate immediately upon the death of the annuitant. The case of Baker v. Baker also turned on the peculiar form of the gift. He must rely on the general doctrine of the court laid down in May v. Bennett and Wright v. Callender, unless he could discover in the will a sufficient intention to the contrary effect, and he could not in the present case find that the testatrix showed any intention to cut down Mary Roberts from the ordinary rights of an annuitant. On the contrary, he thought that the testatrix intended to give Mary Roberts as much benefit as she could. The annuitant ought not to suffer because the executors caused the deficiency by not making a proper investment. There was nothing to take the case out of the ordinary rule, and it must be declared that the annuitant's representatives were entitled to have raised and paid to them a sufficient part of the fund to make good the arrears of the annuity which had not been paid. Where an annuity is charged upon a fund or an estate, and the dividends arising from the fund, or the income from the estate, prove insufficient to meet the annuity, the annuitant is entitled to have the deficiency paid out of the fund, or so much of the estate sold as would be sufficient to meet the deficiency, unless the grant of the annuity can be construed as showing a contrary intention. The chief question in this suit was, whether the corpus of a fund was liable to make good the arrears of an annuity, to meet which the income of the fund had proved insufficient. Edward Maule, by his will dated in 1807, directed his executors to invest a sufficient sum in the purchase of Consols or other Government security, to produce the annual sum of 201., and pay the dividends to his wife for life, and after her decease to Mary Abraham for life; and after the decease of Mary Abraham, the testator gave the said sum of money so invested to his wife absolutely. The testator's wife survived him, and by her will gave to Mary Roberts and her assigns, during her natural life, one annuity or clear yearly sum of 20l. to commence from the decease of Mary Abraham, and be payable and paid by and out of the funds directed to be purchased by her husband's will for securing an annuity of 201. to Mary Abraham, and in case Mary Roberts should die in the lifetime of Mary Abraham, then the fund was given to the executors or administrators of Mary Roberts. In 1825 the executors of Edward Maule invested a sum of 4001. in Navy 5 per Cent. Annuities, to answer the annuity, but by subsequent changes this species of security became abolished, and the annuity fund Solicitors for the plt., Bridges, Sawtell, and Co. Solicitors for the representatives of Mary Roberts, Robson and Tidy. Dec. 12 and 13. SCOTTO v. HERITAGE. Foreclosure-County Courts Equitable Jurisdiction Act The jurisdiction of the Court of Ch. in foreclosure suits V.C. M.] BRADISH V. ELLAMES. [V.C. M. of Ch. for foreclosure of a mortgage upon property | performance before Wood, V. C., where the amount in Bucks, for 501, and 31. interest. The mortgagor resisted the plt.'s right to institute the suit in Ch." The Court made the usual foreclosure decree. Suit for foreclosure. The only question in this case was, whether the sum in dispute, being only 501. principal, with some 21. or 37. interest, it ought not to have been taken to the County Court. The bill was filed for foreclosure of a mortgage for 501. upon certain property at Marsh Gibbon, in Buckinghamshire, at 6 per cent., the principal, in fact, forming a portion of the purchase-money left on mortgage. The mortgagor being dead, the plt., who resided in Surrey, applied for the money, and not being paid, filed this bill in the usual foreclosure form. In the deft.'s answer there was the following passage: I submit to this honourable court that this suit is vexatious, and that the plt. has, as against me, no right to institute the same; the proper remedy, if any, of the plt. is in the County Court, and this suit ought on the hearing to be dismissed with costs, and I claim the same benefit as if I had demurred or pleaded to this said bill. Glasse, Q. C. and Joyce, for the plt., contended that the County Courts Equitable Jurisdiction Act, (28 & 29 Vict. c. 99) made it optional, not compulsory, to proceed in the County Court in foreclosure suits where the charge did not exceed 590. Eddis, for the deft., submitted that, although the jurisdiction of this court might not be ousted by the Equitable Jurisdiction Act, there was a discretion as to costs, and that in this case, under the circumstances, there ought only to be such costs as would have been incurred in the County Court. Everitt, as amicus curice, mentioned a specific per formance suit before Wood, V.C. where the amount of purchase-money was about 3007. The following cases were cited: Luke v. Butler, 2 Ell. & Bl. 32: 5 Q. B. 92, The VICE-CHANCELLOR said, that although the amount in question was small, the point was important. The case had been ably and fully argued. It was admitted by Mr. Eddis that the Superior Courts of Equity retained a concurrent jurisdiction, and that the Act was silent on the question of costs. That would appear to be the case from Mr. Lloyd's note to the Act, and that parties were unfettered in their choice of a court. He regretted that the Act did not contain some restriction upon parties bringing their suits for small amounts in the Superior Courts, but as there was no such restriction, he was bound to assume that the jurisdiction of this court was not ousted. What was the law as to legal proceedings under the County Court Act (9 & 10 Vict. c. 95)? The 128th section provided that where the plt. and deft. resided more than twenty miles apart, the plt. should be at liberty to proceed as if the Act had not passed, and by decision (Hickie v. Salamo, 8 Ex. 59) that had been extended to the case of one of several plts., and therefore there would be the ordinary costs as if the Act had not passed. Then came the 129th section, which provided that if any action of contract should be commenced in any superior court, and a verdict found for less than 207., or a verdict for less than 57. in the case of an action on tort, no costs should be given, and it therefore followed that in other cases there would be full costs. therefore bound to conclude that the plt. was entitled to come to this court, and the question was whether he ought to have the costs. Mr. Everitt, as amicus curia had referred to a case of specific He was was 3001, and where the V. C. considered the jurisdiction not to be ousted. This case was one of the simplest character, and although the V. C.'s first impression was otherwise, he was by no means satisfied that the fact of the plt. residing four miles south of the Thames, and the property being in Buckinghamshire, was not sufficient to create considerable costs, even in the County Court. There was no excuse for the deft. resisting the claim. Plt. had no alternative but to file his bill, and there must be the usual decree, ridiculous as the amount of 21. or 31. interest was. Solicitor for the plt., Rae. Solicitors for the deft., N. C. and C. Milne. Saturday, Dec. 15. BRADISH . ELLAMES. Practice-Transfer of Land Act 1862 (25 § 26 Vict. c. 53) — Advertisements for claims-Time to bring in evidence. Upon the application of a petitioner for the sale by the court of lands with an indefeasible title under the Transfer of Land Act 1862, the court will fix a day upon which parties who have sent in claims in answer to the advertisements directed by the Act must bring in evidence of such claims. Adjourned summons. The application in this case was made under the second part of the Transfer of Land Act 1862 (25 for the purpose of effecting a sale by the Court of & 26 Vict. c. 53). The petition had been presented Ch. of certain estates with an indefeasible title. The court had made a preliminary order under sect. 43, for the examination of the title to the land, and the conveyancing counsel of the court had approved of the title. (See 11 L. T. Rep. N. S. 532, and 10 L. T. Rep. N. S. 89.) The notices and advertisements for claims and objections had been made as directed by the Act, and in answer to them six persons had sent in their claims. They all claimed as heirs-at-law of James Hardman, who had died one hundred and eleven years ago. Williams, Q. C. and Kay, Q. C., for Mr. Pattison Ellames, the petitioner who sought to have his title to the property declared indefeasible, and who had purchased the estate in 1827, now asked the court, in the absence of any general order, or of any prothese claimants could bring in their evidence of vision in the Act, to limit the time within which title. They referred to sects. 43 and 44 of the Act. Osborne, Q. C. and Field for parties in the same interest as Mr. Ellames. Baily, Q. C., W. W. Cooper, and Bilton, for the different claimants, opposed the application. They referred to sect. 89 of the Act. The VICE-CHANCELLOR said that he must fix some day upon which these claimants must bring in their evidence of title, and he would name the 1st Feb. Solicitors for petitioner, Field, Roscoe, and Co. Q. B.] TRUSTEES OF THE BRIDGWATER ESTATES v. SURVEYOR OF HIGHWAYS OF BOOTLE. Common Law Courts. COURT OF QUEEN'S BENCH, Reported by JOHN THOMPSON and T. W. SAUNDERS, Esqrs., Barristers-at-Law. Wednesday, Nov. 7. THE TRUSTEES OF THE BRIDGWATER ESTATES (apps.) v. THE SURVEYOR OF HIGHWAYS OF BOOTLE (resps.) Seashore-Parochiality-Proof of Non-presumption. There is no presumption that any part of the seashore is parochial, and it lies on those who assert its parochiality to prove it. This was a special case stated by an order of a judge under the provisions of the 12 & 13 Vict. c. 45, and it stated: 1. Prior to the passing of the Mersey Docks Acts Consolidation Act 1858 (21 & 22 Vict. c. 92, local)| the boundaries of the borough of Liverpool were, by an Act for the regulation of municipal corporations in England and Wales, and the Act 2 & 3 Will. 4, c. 64, defined to be, on the western side thereof, the high-water mark of the river Mersey, and on the northern side thereof a line running nearly at right angles from the said western line, and continuing inland to the eastern boundary, and which said northern boundary is marked red on the map thereto annexed, which is to be taken as part of this case. 2. The township of Bootle is the adjoining township to the borough of Liverpool aforesaid at the north-east end of the river Mersey, and no part of the said township is, unless made by virtue of the provisions of the Mersey Docks Acts Consolidation Act 1858, within the said borough. The northern boundary of the said borough in the said map hereto annexed marked red is drawn along the ancient boundary line which divides the township of Bootle from the township of Kirkdale, the whole of the latter township being now within the said boundary. 3. Before the extension of the docks as hereinafter mentioned, the township of Bootle extended on its western side along part of its course as far as the sea, and along other parts as far as the mouth of the said river Mersey. There is nothing to show whether the township of Bootle along its western sides does or does not extend beyond the line of the ordinary or medium high-water mark, and, if necessary for the purposes of this case, the court is to decide what is the western boundary of the said township. 4. The Liverpool Docks have of late years been extended in a northwardly direction, and some portions of such extension have been carried to the northward of and beyond the said boundary line in the said map marked red. 5. The premises held by the apps. coloured blue upon the said map, both of which are the subject of this appeal, form part of such extension, and are a part of and situate within the Liverpool Docks. The land upon which such premises are situated has been properly taken according to the Mersey Docks Acts Consolidation Act, and the other Acts incorporated therewith or relating thereto, and now forms part of the Liverpool Docks within the meaning of such Acts. 6. The said land on which the said docks occupied by the apps. have been constructed was situated on the foreshore of the river Mersey (as shown in the said map annexed thereto), being the ordinary or medium high and low water mark, but the said land has been reclaimed, and the tides no longer flow over it. 7. By the Mersey Dock Consolidation Act it is [Q. B. enacted (sect. 344) that all lands or docks which may for the time being form part of the Liverpool Docks shall for all the purposes of the Act, and for the Act for the regulation of municipal corporations in England and Wales, and of the Act therein referred to of the 2 & 3 Will. 4, c. 64, and of any Acts in any way relating to or affecting the borough, be and be deemed and be taken to be within, and shall be part of the borough, provided that nothing herein contained shall extend to confer any elective or other franchise in respect of any such lands. 8. Three of the purposes of the said Act for the regulation of municipal corporations were and are the making and laying of a borough rate, or water rate, and a lighting rate, by the council of the said borough, upon all property by law rateable to the relief of the poor. By the local Act, 9 & 10 Vict. c. 127 (the Liverpool Sanitary Act 1846), the said council are empowered to make and levy a sewer rate, a paving rate, and a general rate upon all property rateable to the relief of the poor, and by the Liverpool Sanitary Amendment Act 1864 such general rate is made chargeable with the cost of certain improvements to be made thereunder. By the Liverpool Waterworks Act 1862 (local) the said council are empowered to make and levy a water rate upon all such property as aforesaid. By the Act for the improvement, good government, and police regulations of the said borough, the 5 & 6 Vict. c. 106 (local), the said council are empowered to make and levy a fire police rate upon all such property. By three Acts for the improvement of Liverpool, namely, the Liverpool Improvement Act 1858, the Liverpool Improvement Act 1861, and the Liverpool Improvement Act 1864, the said council are also empowered to make and levy improvement rates upon all such property aforesaid. 9. The mayor, aldermen, and burgesses of the said borough, in exercise of the powers claimed by them under sect. 344 of the said Mersey Docks Acts Consolidation Act 1858, have assessed the same premises of the apps., and which are exclusively occupied by them, to such of the said rates as the said mayor, aldermen, and burgesses have thought necessary to make and levy, on the ground that by the said Act firstly above named, all such land and docks are now by law within and part of the said borough. 10. The surveyors of highways of the said township of Bootle-cum-Linacre, in exercise of the powers claimed by them under the General Highway Act, have assessed the same premises occupied by the apps. to the Bootle highway rates, on the ground that such premises are beyond the northern boundary of the borough, as the same is defined by the 2 & 3 Will. 4, c. 64, and, as they contend, are within the township of Bootle-cum-Linacre, and that such premises are therefore not within or part of the said borough, but within or part of the said township of Bootle. 11. The resps. and corporation of Liverpool have each taken steps to enforce the respective rates so made by them as aforesaid upon the apps. The apps. have given notice of appeal to the sessions against the rates so made by the above-named resps. Whereupon, and by consent and by the order of Lush, J., the said parties have, pursuant to the 12 & 13 Vict. c. 45, agreed to this case for the opinion of the Court of Q. B. upon the question, whether, under the circumstances herein stated, the apps. are liable to be rated as aforesaid by the resps. in respect of the said premises, the parties hereby admitting that, if the said premises are liable to be assessed to the said rates for the borough of Liverpool, the apps. have been rightly rated in respect thereof by the mayor, aldermen, and burgesses of the borough of Liverpool. 12. The court are to have power to draw all such inferences of law and fact as they think proper, and to have power to send the case back for further information if required. All the Acts of Parliament herein referred to are to be taken as part of the case, as also the Sanitary Amendment Act 1854 (17 Vict. c. 15). 13. The parties hereto consent that the corporation of Liverpool are to be at liberty to appear on the hearing of this case in support of their rates on their agreeing by their counsel to be bound by the decision of the court, and are to be at liberty to contend that the apps. are liable to be rated by the corporation of Liverpool, whether they are liable to be rated to the said township of Bootle or not. And the parties hereto agree that a judgment in conformity with the decision of this court may be entered on motion by either party at the sessions next or next but one after the decision of this court shall be given. 14. That each party shall bear his own costs of and incident to this special case, and of and incident to the judgment to be entered pursuant to the decision of the court. Aspinall, Q. C. and L. Temple appeared for the resps. and in support of the rate, and they contended that the premises were within the township of Bootle, and were consequently rateable; that the premises, before the docks were made, being waste and partly shore, had been reclaimed from the sea since then, and were occupied by the apps.; that the medium filum of the shore is the proper boundary of the parish: Hale de Jure Maris, 27; Reg. v. Masson, 8 Ell. & Bla. 540; Mellish, Q. C., Quain, Q. C., and Crompton appeared for the apps., and argued that there was no evidence that the premises were parochial, and that no presumption could be made that they are so, and that therefore they were not liable to be rated. MELLOR, J.-We think our judgment should be for the apps. The rule of law is this: where there is nothing to show the one way or the other whether a particular part of the shore has become parochial, there is no presumption that it is parochial, but rather the reverse. It lies on those asserting its parochiality to prove it. Now, there is nothing of that kind here to prove that this place was parochial. LUSH, J. concurred. Judgment for the apps. COURT OF COMMON PLEAS. Reported by W. GRAHAM and M W. McKELLAR, Esqrs., Barristers-at-Law. June 4 and 5. BREMNER AND OTHERS v. HULL. Churchwardens-Custom as to election of-Declaration by-Separation of a township from a parishC. L. P. A. 1860, s. 19. The parish of P. consisted of six townships; in five of them the parishioners in each township had been in the habit of selecting two persons, one of whom was appointed churchwarden by the rector, and in the sixth, the township of P., the outgoing churchwardens nominated two, of whom the rector appointed one. In 1848, by Order in Council under the 3 & 4 Vict. c. 113, one of the townships was constituted a separate parish: Held, that the custom was a good custom, and that the [C. P. separation of one township did not affect it in the remaining five. In an action by five churchwardens elected as above stated against a person who had been nominated by the parishioners of the township of P., and who, claiming to act as churchwarden, had collected church-rates, it appeared that one of the plts. had not made the declaration required by the 5 & 6 Will. 4, c. 62, s. 9: Held, that his predecessor might be substituted for him, as he remained in office till a successor was properly appointed: Held also, that on a special case stated after the trial of an action, the court had power under the C. L. P. Å. 1860, s. 19, to give judgment for such of the plts. as should appear entitled to it. This was an action by the churchwardens of Prestwich to recover from the deft. moneys received by him on account of a church-rate. At the trial before Shee, J., at the Spring Assizes at Liverpool 1864, a verdict was entered for the plts. with leave to the deft. to move to enter a verdict or nonsuit. In Easter Term 1864 a rule was granted on the grounds, first, that the plts. were not proved to be duly elected churchwardens; secondly, that the custom alleged by the plts. was not proved; and thirdly, that one of plts. had not made the necessary declaration before entering upon the office, unless the parties should consent to state a special case. In Trinity Term 1864 the court ordered that a special case should be stated to raise all the points and to consist of the evidence given on the trial of the cause; and that the parish books should be produced upon the argument and be taken as part of the case, the court to be at liberty to draw inferences of fact as to the custom. Accordingly the following case was stated : The plts. in this cause claim to be the churchwardens for the parish of Prestwich, in the county of Lancaster: the plt. J. A. Bremner claiming to be and act as one of such churchwardens, as representing the township of Prestwich, which forms a part of the said parish; the plt. James Royle claiming to be and to act as another of such churchwardens, as representing the hamlet of Nasworth, in the township of Pilkington, which also forms part of the said parish; the plt. R. D. Walker claiming to be and to act as another of such churchwardens, as representing the townships of Great and Little Heaton, which form other parts of the said parish; the plt. M. Heaton claiming to be and to act as another of such churchwardens, as representing the townships of Tonge and Alkrington, which also form parts of the said parish; and the plt. John Lancashire claiming to be and to act as the other of such churchwardens, as representing the hamlet of Outwood, in the township of Pilkington aforesaid. The deft. also claims to be and to act as churchwarden for the said parish of Prestwich, as representing the said township of Prestwich. The amount sought to be recovered was received by the deft., professing to act as such churchwarden, in respect of a certain church-rate of 1d. in the pound, laid on the said parish of Prestwich. It is alleged on the part of the plts. that a custom or usage has existed from time immemorial in the said parish of Prestwich for the nomination and appointment of the churchwardens of the said parish, and that such custom is as follows, that is to say: two fit and proper persons are nominated by an annual meeting, held for that and other purposes, of the ratepayers within the hamlet of Nasworth, in the township of Pilkington, which forms part of the said parish. The case then went on to state that two were selected in the same manner from each of the above mentioned townships and hamlets, and then proceeded as follows:-And two by the outgoing churchwardens in respect of the township of Prestwich, in the said parish. And that the rector appoints one of the two nominated by the said meeting of the ratepayers of each of the said hamlets or townships, and one of the two nominated by the outgoing churchwardens in respect of the township of Prestwich. And that each of the persons so appointed is a churchwarden for the whole of the said parish as representing the hamlet or township by or in respect of which he has been nominated. The deft., on the other hand, denies such custom as respects the township of Prestwich, and alleges that, even if it has so existed, it is not a good, valid, and binding custom, and has been departed from and determined. He further objects that the plts. were not proved to be duly elected and appointed churchwardens, and that they or some of them had not made the necessary declaration before entering on the office. The case then set out the evidence on the part of the plts. at great length, to the effect that the parish of Prestwich had formerly included the hamlet of Whitefield, which also returned a churchwarden for the parish, but by Order in Council of 17th Feb. 1847, Her Majesty approved of a scheme prepared by the Ecclesiastical Commissioners under the 3 & 4 Vict. c. 113, for constituting Whitefield a rectory under the name of All Saints Stand, and from that time Whitefield ceased to return a churchwarden for the parish of Prestwich and to contribute to its church-rates. There was a mass of other evidence adduced to prove the alleged custom, which it is not necessary to set out. It appeared that the plt. Heaton did not make the declaration required by the 5 & 6 Will. 4, c. 62, s. 9, till after the commencement of the action, and that the plt. Lancashire had made no declaration in 1863, but Heaton's predecessor in office was willing to be substituted for him as a plt. in the action, for which purpose leave to amend had been given, and Lancashire had made the declaration when he was in office in 1862. The deft. was one of the persons chosen by a meeting of parishioners in the township of Prestwich, but the other person chosen refused to act, and the rector refused to select. The deft., however, made the declaration, and professing to act as churchwarden, collected in the township 67. for a parish church-rate made on the 8th April 1863 at a meeting of the parishioners of the whole parish. Temple, Q. C. (Mellish, Q. C. with him) contended that there was sufficient evidence of the custom, and that the only occasions when it had not been followed were when the rector desired that the existing churchwarden should remain in office, and then it was unnecessary to go through the form of nominating another. That the mode of appointment of churchwardens was regulated by custom, and that the custom in this case was not destroyed by the township of Whitefield being converted into a rectory. He cited 1 Black. Com. 394; and Rex v. The Inhabitants of Hinckley, 12 East, 361. Milward, Q. C. (Sowler with him), for the deft., admitted that if the custom was properly proved it was a good custom, but contended that if it was not made out the right, of choosing belonged to the parishioners by the common law. Bac. Abr. tit. "Churchwarden" (A); That it was for the plts. to make out the custom, and that they had failed to prove a custom without interruption from time immemorial. They could [C. P. not support a custom to elect tive churchwardens by showing a custom to elect six, and even if they could, one of the plts. had not made the necessary declaration: Gibbs v. Flight, 3 C. B. 581; Temple, Q. C. in reply. ERLE, C. J.-I am of opinion that our judgment should be for the plts. This is an action by the churchwardens, representing five townships in the parish of Prestwich, brought against another person who claims to be a churchwarden for the township of Prestwich, and to be entitled to collect a churchrate which has been made for the parish. According to ancient custom, each township would make a separate collection of the rate, and the whole when levied would go to the parish purse. The question before us is as to the validity of the custom under which the churchwardens are appointed. In the township of Prestwich the outgoing churchwardens present the names of two persons to the rector, who appoints one of them. In the other townships the custom is for the ratepayers to nominate two persons, of whom the rector appoints one. The real question between the parties here is, whether in the township of Prestwich the parishioners or the outgoing churchwardens should nominate two persons, of whom the rector should choose one? It is said that the custom has not been strictly adhered to, but that in some cases, instead of the churchwardens nominating two persons, the rector has requested the outgoing churchwarden to continue in office; but in all the cases in the township of Prestwich, according to the evidence, the right has been kept up, and in no single instance have the ratepayers presented two names, as is contended for by the deft. What is inainly relied upon by the deft. is what took place in the year 1826. On that occasion notice was given that the parishioners were going to contest the right of nomination, and a vestry meeting was called and names chosen and presented to the rector. That case appears to me rather in confirmation of the custom than invalidating it, because one of the names presented to the rector, and the one he selected, was that of the outgoing churchwarden, who may have nominated himself. The evidence of the former rector going back as far as the memory of man, proved that in the township of Prestwich the custom had been uniformly observed, and the supposed departure from the custom was entirely reconcilable with it. The person who was curate of the parish in 1826 says that the custom continued in that year, and that the nomination was made in accordance with it by the outgoing churchwardens; at least so I understand his evidence. Therefore the case is to my mind entirely without answer, There is a great deal of strong affirmative evidence. The supposed departure from the custom is entirely reconcilable with it, and the custom continued with notice to the parties who were interested in disputing it, down to the time when this action was commenced. It can hardly be said that the custom is invalid if it has uniformly existed in point of fact and a custom very analogous to it, has been recognised as good in point of law. One of the cases is Catten v. Barwick, 1 Strange, 145. With the particular dispute there we have nothing to do, but the custom set up in that case was somewhat analogous to that in the present one. The present case is also somewhat analogous to the case of Astle v. Thomas, 2 B. & C. 271. There the churchwardens of a separate township brought an action against the outgoing churchwardens for not paying over a rate, and the objection was made as partly made here, that the churchwardens were |