1828. GOLDING, V. FENN law whether such a custom can be supported. No minimum and no maximum in the numbers of the select body were proved. In a corporation there cannot be a select body by the election of as many as the electors please, who might elect the whole corporation. Dent v. Coates (a) is a very strong case, to which no answer has been given. The case of Corporations (b) has been cited. That shews that where a corporation have accepted a charter, and have acted upon it, they are bound by it. [Lord Tenterden, C. J. The plaintiff's argument was, that a definite number, electing each other, might be good, but that an indefinite number could not so elect.] In Berry v. Banner (c), Lord Kenyon laid great stress on the confirmation. The verdict then found that forty-nine was the number. There are entries to shew that sometimes the churchwardens were not of the vestry. [Lord Tenterden, C.J. That is after they were out of office.] What the defendant relies on is, that when out of office they were sometimes members of the select vestry, sometimes not. Is it reasonable that the persons having the sole control, and accounting only to themselves, should have the power to appoint their own number? The case in Skinner (d) was a case of private property. An act of parliament for this purpose cannot be presumed. There was an abandonment of the custom in 1662. The custom was to elect. According to the Solicitor-General, the Bishop of London lent himself to a disgraceful trick, in order to purge the vestry, knowing that he had no authority (e). There was no evidence to shew the number below which they could not go quite uncertain both as to how few, or how many. In Broadbent v. Wilks (f) a custom to lay coals, &c. from the coal pits, on customary lands (g) near to such pits, without saying for how long, and to take away part of the coals without saying (a) 2 Stra. 1145; ante, 652 (a). 651, 654 (g). (d) Farrar's case, ante, 654, n. (f) Willes, 361; ante, 652 (b). (g) As to the distinctions between the several species of custo mary lands in the north of England, vide Lady le Fleming v. Simpson, ante, 269, note (c). how much, and to burn the other part into cinders there, was held to be bad for uncertainty. There the Lord Chief Justice says, "Every custom must be certain, for two plain reasons; first, because if it be not certain, it cannot be proved to be time out of mind; for how can anything be said to have been time out of mind when it is not certain what it is? secondly, it must be certain, because every custom pre-supposes a grant; and if a grant be not certain, it is void." If the number is certain, they are compellable to fill up their number. There is no instance in the books not alleging a certain number. The next question is, whether the custom is reasonable. They are bound to account only to each other, and have a right to make what rates they please, as church rates, [Bayley, J. That is under the control of the Ecclesiastical Court.] The answer given in the Spiritual Court was, we will only account to ourselves. The churchwardens are members of the body to which they are to account. Judgment was now delivered by Cur. adv. vult. Lord TENTERDEN, C. J.-This case came before us on a motion for a new trial of certain issues directed by the Court. The principal issue, the others being in fact dependent upon this, was, whether, in the parish of St. Martin in the Fields, there has been from time immemorial a vestry composed of select persons, parishioners and inhabitants of that parish for the time being, or not. The cause was tried before me and a special jury, who found that issue in the affirmative. Considering this as a question whether this parish has had a select vestry, or whether the inhabitants generally have met in vestry, this is the third time that the fact of the select vestry has been found. The first was on an issue directed by this Court in the 18th Geo. 2, at a trial at the bar of the Court, and it was consequent upon the trial of an action for a false return to a mandamus, in which, according to all probability, the same question had been tried, and the same verdict found, 1828. GOLDING D. FENN. 1828. GOLDING 7. FENN. although the form of the record is not such as to shew it was disputed. The second was in the year 1792, in a proceeding in prohibition, in which questions of law might have been raised, and put on the record, and carried to the highest tribunal in the land. There are also acts of parliament relating to this parish, referring matters to the authority of the select vestry, and, consequently, recognizing the existence of such vestry; and there was an act passed in the reign of Queen Anne, relating to new churches built at that time, pointing to this vestry in the parish of St. Martin's, as it then existed, as a model for such parishes as had not then select vestries. It was said, however, and said truly, that the select vestry of this parish, as it existed at the date of that act of parliament, was not precisely that vestry which does exist, according to the custom found, at the present time. A similar remark was made as to the two former trials; whether accurately, as applicable to the first of them, may be doubtful: as applicable to the opinion of Lord Kenyon, given in 1798, at the trial of the issue then presented to him, and to the evidence and verdict, as conformable to that opinion, the remark is undoubtedly just. At that trial the form of the issue treated the question as one respecting a vestry composed of some definite number of persons, whereas the present record raises no such question, and the jury were so informed by me at the trial; the verdict, therefore, must be considered as establishing a select vestry not necessarily composed of any definite number of persons: and this has given rise to the objections on which the motion for a new trial was founded. The objections were two. First, that a custom for a select vestry, consisting of an indefinite number of persons, continued by the election of new members made by itself, and not by the parish at large, was void in law and secondly, that the custom in this parish appeared by the evidence to have been discontinued and abandoned, and therefore was lost and gone. It is obvious that the first objection does not properly belong to a motion for a new trial; but as the issue in this case was directed by the Court, with a view to a proceeding pending in the Court, it properly belongs to that view of the case, and therefore the manner of bringing it forward and discussing it is not material. In support of the first objection it was very strenuously argued, that unless a number be fixed by the custom, at least so that it may be known that below that number a vestry cannot be formed, a vestry filling up its members by its own choice may be allowed to reduce itself to two or three only, exclusive of the vicar and the churchwardens, and that thereby the whole government of the parish, as far as relates to the church and the arrangement of the churchwardens' accounts, and other matters of that kind, may fall into the hands of a number of persons too small to secure a reasonable and proper management, and due attention to the interests of the inhabitants of the parish at large. It was also objected, that if the number be not limited, the vestry may consist of too many, even of the whole parish. This point, however, was little urged. There is obviously no weight in it. The great complaint against select vestries is, that they consist, not of too many persons, but of too few; and if a maximum had been fixed by the custom in the very remote times to which the custom must go back, the number that might have been proper in those times, might, and probably would, be too small for the great increase of population which has gradually taken place in this parish. We are also of opinion that a custom of this kind is not void in law for want of a minimum; but although we are of this opinion as a matter of law, I would by no means have it understood that we think the evidence or the verdict in the present cause establishes the fact that there may not be a minimum in this parish. It would be quite consistent with the verdict, and not inconsistent with the evidence, that the number should never be less than the lowest that can be found in any of the instances, and there will in no instance, I believe, be found to be so few as twelve. The form of the issue raised no question of this kind. Now, although no numerical minimum be fixed 1828. GOLDING v. FENN. 1828. GOLDING V. FENN. by the custom, it by no means follows as a consequence, that the number may be reduced to two or three, as the objection supposes. The law may well consider it as part of such a custom as the present, that there shall be a reasonable number. I am aware that this may lead to the question, what shall be a reasonable number. Such a question, if raised, would be to be discussed with reference to long-established usage, and to the population of the parish. That number which might be not too small, and not unreasonable, three or four centuries ago, in a parish in which there might not be more than a dozen substantial householders, or even so many, might be unreasonable on a change of circumstances, and where, by covering fields with houses, the parish would be greatly increased. Whatever may be thought of the degree of influence that the love of power exercises over the human heart, I believe the love of ease does not exercise less. There is no instance known in practice in which two or three persons have taken on themselves, gratuitously, the whole burthen of administering the affairs of the population of a parish belonging to themselves; and we do not think, in theory, that there is any reason to require a definite minimum, as essential to the validity of the custom. The question in this case, as in many others, turns upon the balance of convenience. We think it more convenient that the custom should leave the number of the vestry indefinite, to be regulated and varied by the changes time may make, than that there should be any fixed point above or below which no change of circumstances can allow an alteration. We, therefore, think the custom good in law. The second objection, namely, that the custom in this parish appeared by the evidence to be disclaimed, abandoned, and therefore lost, raises a question proper to be submitted to us upon a motion for a new trial. It appears by the evidence, that in the year 1662 a faculty was obtained from the Bishop of London, naming 49 persons, together with the vicar and churchwardens, as the select vestry, and appointing that |