1828. BENNETT v. WOMACK. the lessee; and that all those restraints, so imposed from time to time, are to be introduced as the aggregate of the agreement." Every thing which is there said applies to the present case. The witness proved that six leases out of ten contained such a proviso; but this evidence was not admissible, and does not prove that the covenant is an usual one. Lord Eldon cites Henderson v. Hay (a), where it was held that the vendor was not entitled to insert a clause which would diminish the common law right. [Lord Tenterden, C. J. You do not take your objection at the time, and afterwards you make the point by surprise upon the plaintiff, at the trial.] Lord TENTERDEN, C. J.-There is no weight in the objection as to the covenant to pay the sewers' rate and land tax; those are usual covenants with reference to a net rent. A covenant not to use the premises for any other trade must be understood with reference to the circumstance that this was a lease of a public-house. The objection is not made till the trial, when the plaintiff does not come prepared to meet it. The existence of such a clause in six cases out of ten, is reasonable evidence when a party is not prepared to meet such an objection. BAYLEY, J.-A lease, at a net rent, would be expected to contain covenants which would clear the rent from all deductions. The defendant was informed that the lease contained usual covenants, which does not mean covenants universally inserted. That which is found in sixty leases out of a hundred is an usual covenant. If in the greater number of instances this clause is inserted, a party entering into such a contract is bound to know it. HOLROYD, J.-" Net rent" disposes of the first objection. Then there was sufficient evidence that the clause of (a) 3 Bro. C. C. 632. re-entry is usual: it is to be found in six leases out of ten; and it is a beneficial proviso with reference to property of this description. LITTLEDALE, J., concurred. 1828. BENNETT υ. WOMACK. (a) And see Morgan v. Slaughter, 1 Esp. N. P. C. 8; also Folkington v. Croft, 3 Anst. 700, Rule refused (a). overruled, 15 Ves. 531; Vere v GOLDING and others v. FENN. custom, FEIGNED issues were directed by this Court upon the A select veshearing of a motion made by the plaintiffs, who were of an indefitry, consisting churchwardens of the parish of St. Martin in the Fields, nite number, in the county of Middlesex, for the years 1820, 1821 and exist by cusmay legally 1822, for a writ of prohibition to prohibit further proceed- tom. Such ings in a suit in the Court of the Bishop of London, though it may, brought by the defendant against the plaintiffs to compel that there perhaps, imply them to exhibit their accounts there. The first count must always be a reasonstated the question to be, "whether on the 1st of April, able number 1825, there was, and from time whereof the memory of with reference man is not to the contrary had been, a vestry of the said stances of the parish, composed of [a certain] (a) select [number of] parish, is not persons, parishioners of the said parish for the time being." the acceptThe question in the second count was, "whether there ance of and was, and from time whereof, &c. had been, a certain escence in a faculty, by laudable custom, used and approved of in the said parish, which the Orthat the accounts of the churchwardens of the said parish, for the time being, have been, and still of right ought to be, audited and passed at a vestry of the said parish, composed ber at forty to the circum abrogated by long acqui dinary grants and confirms a select vestry, fixes the num of [a certain] select [number of] persons, parishioners of nine, and ap (a) The declaration was originally delivered with the words points certain in brackets, which were afterwards individuals, struck out by amendment. amongst whom are some of the former vestry, to be vestrymen. 1828. GOLDING v. FENN. the said parish, for the time being, and not by the minister and inhabitants at large of the said parish, in vestry assembled." The question stated in the third count was, "whether there then was, and from time whereof, &c. had been, a certain laudable custom used and approved of in the said parish, that the accounts of the churchwardens of the said parish, for the time being, have been, and still of right ought to be, audited and passed at a vestry of the said parish, composed of [a certain] select [number of] persons, parishioners of the said parish for the time being." The question in the fourth count was, "whether there was, and from time whereof, &c. had been, within the parish aforesaid, in the county aforesaid, a vestry of the said parish, composed [of a certain number] of select persons, parishioners and inhabitants of the said parish for the time being, called a select vestry, which select vestry for the time being, during all the said time immemorial, on Easter Monday in every year, had been accustomed to nominate and elect, and of ancient right and custom ought to nominate and elect, two parishioners and inhabitants of the said parish to be and serve the office of churchwardens of the parish aforesaid, for one year then next ensuing, which persons being parishioners and inhabitants of the said parish, so nominated, elected and chosen by the said select vestry, and none others, had, for and during all the time aforesaid, been duly sworn into and served and executed, and by right of custom ought to have served, the office of churchwardens. of the said parish." The plea confessed the wager, and traversed the custom in each count, in the usual form. At the trial before Lord Tenterden, C. J., at the sittings after Easter term, 1827 (a), the plaintiffs produced and read entries in the parish books in the years 1576, 1577, 1590, 1592, 1593, 1594, 1595, 1596, 1597, 1598, 1606, 1609, 1610, 1612, 1613, 1614, 1615, 1616, 1618, 1619, 1620, 1623, 1626, and 1628, from which it appeared that the (a) Counsel for the plaintiffs, Tindal, S. G., Gurney, W. E. Taunton, and Barnewall; for the defendants, Scarlett, A. G., Brougham, and J. affairs of the parish had been managed by a select body, but of a fluctuating and indefinite number. One of these entries stated that a party was fined "according to ancient order." They also produced, from the chapter-house at Westminster, a feoffment of the year 1225, and a charter of the year 1251: also Pope Nicholas's Taxation, and the Nonæ Rolls, 14th Edw. 3, 1339, in all of which the parish of St. Martin in the Fields is recognized. The plaintiffs also produced three records of this Court. The first, a judgment in H.T. 15 Geo. 2, Kendal v. Penrice, which was an action for a false return, against the Official of the Archdeacon of Middlesex. The plaintiff and one Tucker had been elected by the parishioners at large; whilst the same Tucker and one Wood were chosen by the select vestry. The defendant having refused to swear in either set of churchwardens, both obtained writs of mandamus; upon which defendant swore in Tucker and Wood, and returned upon the plaintiff's mandamus, that he had already sworn in the churchwardens elected by the select vestry. A verdict was found and judgment given for the defendant. The second record was upon a feigned issue between Ferrers and Nind, H. T. 17 Geo. 2, to try whether there then was, and from time, &c. had been, a vestry of the said parish, composed of a certain select number of persons, parishioners of the said parish for the time being; which issue was found for the plaintiff, Ferrers, establishing the custom. The third record was of an action in prohibition, in which the declaration stated that there was, and from time whereof, &c. had been, within the parish of St. Martin in the Fields, in the county of Middlesex, a vestry of the said parish, composed of a certain number of select persons, parishioners and inhabitants of the said parish for the time being, called a select vestry, which select vestry for the time being, during all the said time immemorial, on Easter Monday in every year, had been accustomed to nominate and elect, and of ancient right and custom ought to nominate, &c. two parishioners and inhabitants of the said parish, to be and serve the office of churchwardens to the said parish for one 1828. GOLDING V. FENN. 1828. GOLDING V. FENN. year then next ensuing, which persons, being parishioners and inhabitants of the said parish, so nominated, elected and chosen by the said select vestry, and none others, had, for and during all the time aforesaid, been duly sworn into, and served and executed, and by right and custom ought to have served, the office of churchwarden to the said parish. The declaration in that case further stated that the plaintiffs were duly elected churchwardens by the select vestry, and sworn into that office, and entitled to sit in a pew in the parish church, within the said parish, appropriated for the use of the churchwardens; nevertheless, the defendants had wrongfully drawn the plaintiffs into plea in the Spiritual Court, claiming a right to the pew as churchwardens of the said parish. The defendants pleaded the general issue, and for a writ of consultation said that the right of election was in the parishioners at large, and that defendants were elected by the parishioners at large, and were duly sworn in; concluding with a traverse of the custom set out in the declaration. This case had been tried at bar, when a verdict had been found for the plaintiffs. On the part of the defendant were put in letters-patent of 4 Jac. 1, in which it was recited that the parish church of St. Martin in the Fields had been erected, and the parish itself created, in the time of Henry the 8th. They also read other ancient entries from the parish books, from which it appeared that many acts of government in the parish were done by "the parishioners" generally, and sometimes by parties described merely as parishioners, many of whom were of the same name as the persons described in other entries as ancients of the parish, masters of the vestry, or masters of the parish. They also proved a faculty (a) from Gilbert (Sheldon), Bishop of London, (28th June, 1662,) whereby he granted and confirmed to forty-nine persons that they should be a select vestry. The faculty then recited that several parishioners, of whom some (a) As to the effect of which, see Dawson v. Fowle, Hardres, 378; Butterworth v. Walker, 3 Burr. 1689. |