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had been vestrymen and others not, had petitioned the Bishop to grant and confirm to them a select vestry, such as existed in other parishes in his diocese, upon the ground that the affairs of the parish had, during the late unhappy times of trouble within this realm, been managed by persons not admitted thereunto by the Diocesan or Ordinary of the place, in whose power alone they conceived the reguJation and ordering the business of that nature most properly and peculiarly ought to reside. The learned Judge said to the jury, that the four questions raised upon the record all resolved themselves into the first; that the verdicts in the three records produced deserved their most serious consideration, and were not lightly to be departed from. One of the points raised was, whether the parish had existed as a parish beyond the time of legal memory; and this seemed to be a matter of much doubt. On the behalf of the plaintiffs a great number of entries had been read, 13th Feb. 1776-77. The business transacted on these occasions appeared always to have been transacted by a very small number; never so large a number as forty-nine appeared to have assembled: the select vestry had not always consisted of forty-nine persons. But this point ought to have been put distinctly on the record (a). The acts of parliament which had been referred to, took it for granted that there was a select vestry. The term “ ancients” imported a meeting of only a few. The faculty itself could not have the effect of excluding vestrymen. It was not material whether the Bishop granted or confirmed. If the select vestry took its origin from the faculty, it could not have existed from time immemorial. It was evident that in Berry v. Banner (6), some of the evidence which had now been given for the defendant was not adduced. The jury found a verdict for the plaintiffs.

In Trinity term, 1827, Scarlett, A. G., obtained a rule. nisi for setting aside the verdict, on the ground that the custom put in issue on the record was void for uncertainty; (u) Vide ante, 647, note (a). (b) Peake, N. P. C. 157.


for which Dent v. Coates (a), and Broadbent y. Willis (6), were cited; and, secondly, that the supposed custom had been abandoned by the acceptance of the faculty. Against this rule



Tindul, S. G., Taunton, Gurney, and Barnewall, now shewed cause. By the parish books produced, which went back as far as 1576, it appeared that the affairs of the parish were not managed in the ordinary course which prevails where there is an open vestry. Thus persons are stated to have been admitted to the office of vestrymen, and who at that remote period appear to have exercised the rights of vestrymen from the time of their admission. The Court would be justified in assuming that the same course of management prevailed at a much earlier period. So there is an entry (c), to be fined according to ancient order.” No entry of such an order is to be found in the present books; therefore the reference here must have been to others of a more ancient date. From these books it appears that the vestry were to meet in a room.

Now it is clear that all the parish could not meet in a room.

In 1620 there is an appointment of a vestry-clerk; since which period the form of the entries is very different. In 1662 a faculty was obtained for the purpose, as the plaintiffs contend, of confirming the select vestry, which already existed. The number never goes beyond forty-nine. The question has been raised several times before, and the Court and jury have decided in favour of the existence of a select vestry. The issue then tried comprised the case now before the Court, namely, whether the parish is governed by a select vestry or by a general vestry. Ferrers v. Nind (d) was tried only three years after the action for the false return(e). Any question as to the legal existence of the

(a) 2 Stra. 1145; where the (6) Willes, 360; where the words words of the custom pleaded are, are, near to such pits," post, 656. “a certuin proportion of the rate (c) Ante, 649. has been used to be raised by the (d) Ante, 649. hanlet of Romanby," &c.

(e) Kendul v. Penrice, unle, 619.

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select vestry in this parish, is now set at rest by 44 Geo. 3, C. 85 (a), which, though not cited at the trial, is a public act, of which the Court will take judicial notice. In this act we find a legislative recognition of this select vestry, who are authorized thereby to sue and be sued in the name of their clerk. It is not necessary in point of law that a select vestry should consist of a definite number; certum est quod certum reddi potest. This select vestry may be compared with the governing bodies of the Inns of Court: the latter are called “ masters of the bench ;" the former, “masters of the parish.” (6). With regard to the objection that there is no definite number, it may be observed that it is not unfrequent in common councils that a mayor shall fall back into the number of common council: whilst these mayors continue alive, the number must fluctuate. This is the case with the corporation of York. [Bayley, J. There the mayor must be chosen out of the aldermen.] It is also the case in the corporation of Monmouth. All that is necessary is, that there should be a reasonable number. If the number were very small, that might be unreasonable; but a number varying from forty-nine to sixty-two, is not. unreasonably small. It is more reasonable that the number should fluctuate, owing to the exigencies of the parish. The custom of Tanistry (c), and the custom pleaded in Wilks v. Broadbent (d), and Dent v. Coates (e), may be admitted to be void for uncertainty, without affecting the present question. There was quite sufficient for the jury to infer that the same number which had existed since 1662 did exist before. The entries in the books shew that the numbers could not have exceeded forty-nine. The supposed necessity for there being a stated number is a mere gratis dictum. The faculty was evidently intended to operate merely as a confirmation. In corporations it is very common to accept a new charter, varying in some respects the rights of the body; and if the new charter turns out to (a) Public and local act.



v. Fens.

(d) Willes, 360; ante, 652 (b). (6) Ante, 650.

(c) 2 Stra. 1115; ante, 632 (a). (c) Davis, 34.



v. FENN.

be invalid, the parties are remitted to their former position, as an old lease is held to bave continuance notwithstanding the acceptance of a new lease, which turns out to be void (a). The acceptance of a charter does not destroy a previous immemorial custom. It is not unusual in corporations to have a definite number, with a further indefinite number. If it were necessary to shew a fixed number, that is sufficiently shewn here. Every reasonable presumption will be made in favour of a usage which is shewn to have existed for 300 years, and the case of Corporations (6), where that doctrine is laid down, very much resembles the present case. The Court will, if necessary, presume an act of parliament: Fanar's case (c), Mayor of Hull v. Horner (d), Pickering v. Lord Stamford (e), Chalmer v. Bradley (f). If it were necessary that the select vestry should consist of a definite number, there is abundant evidence of the existence of such definite number. The defendant must be allowed to have shewn an unaccountable perseverance in continuing to resist the rights of the select vestry, after it has been established by three concurring verdicts (g) within the last 100 years.

Scarlett, A. G., Brougham and Joshua Evans, contra. The voluntary associations which have been mentioned are very different from the case of a select vestry; nor can any assistance be derived from the power of presuming an act of parliament, since the right here is claimed by way of custom, and not by a parliamentary enactment. The acts

(a) 6 East, 86. And see 2 Smith, jury in Ferrers v. Nind would have 166, S.C.

found a verdict negativing the cus(6) 4 Co. Rep. 77, b.

tom as there pleaded, if the facts (c) Skinner, 78, cited.

which were given in evidence in (d) Cowp. 102.

the principal case had appeared (e) 2 Ves. jun. 273. 282. upon that trial. In Berry v. Ban($) 1 J. & W. 51.

ner, Lord Kenyon told the jury that (8) As the issues were there unless they were satisfied that the taken upon

the existence of a se- select vestry consisted of a certain lect body, consisting of a definite unvarying number, they must find number, it would seem that the a verdict for the defendant.




of parliament which have been referred to merely shew the existence of a select body. There could be no objection on the ground of the variation in the number, if all were elected by the parishioners: there may be a custom for the parishioners to elect a vestry annually, and of an indefinite number. It is clear, from the order of 1606, that the whole number of the vestry was then twenty. The setting up a right in a select vestry of an indefinite number, was an afterthought, though the word “ certain" is now struck out of the record (a). The custom, taken altogether upon the evidence, is unreasonable. There is no power to prevent the select body from suffering their number to be reduced to two or to one; and this is a body claiming a right to elect their own members, and to tax the parish. [Lord Tenterden, C.J. What rates have the select vestry a power to make! The churchwardens must join them in making a rate.] The select vestry may make a church-rate. The case of the Archbishop of York's lease (6) was that of a mere private right. [Holroyd, J. In that case there was an actual surrender.] Custom depends upon usage; if the custom be gone, the right arising from it is gone also; it cannot be abandoned and resumed at pleasure; there must be a continuous exercise of it. It was shewn that in the time of Charles 2. the custom had no existence. The word “ confirmed,” which occurs in the faculty, is relied on by the other side ; but it is evident that the “ confirmation” applies only to the grant, and not to a pre-existing usage. The report in Peake is very jejune and narrow, and the question raised here never arose in that case. It is said that if it is not a good custom without a definite number, the Court can here see that the select vestry did consist of a definite number; but the Court will not take the place of the jury. The custom laid is too uncertain. Fitch v. Rawling (c), Selby v. Robinson (d). It was a question of

(a) Ante, 647.
(6) Ante, 654 (a).

(c) 2 T. R. 758.
(d) 2 H. Black. 394.

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