upon

this subject, and those relating to the chancels and seats of of great quality. (See Johns. 175, Ken. Par. Ant. 596.)

persons

By whom Erected and Repaired.] The general charge of erecting seats in churches, and of keeping them in repair, lies upon the parishioners, unless they be relieved by any particular person being chargeable by prescription, to rebuild or repair the same. (Degge, P. 1. c. 12.)

"Right to Seats.] By the general law, and of common right, all the pews in the parish church are the common property of the parish: they are for the use, in common, of the parishioners, who are all entitled to be seated orderly and conveniently, so as best to provide for the accommodation of all. The distribution of seats rests with the churchwardens, as the officers, and subject to the control of the ordinary. Neither the minister, nor the vestry, have any right whatever to interfere with the churchwardens, in seating and arranging the parishioners, as often erroneously supposed: at the same time, the advice of the minister, and even sometimes the opinions and wishes of the vestry, may be fitly invoked by the churchwardens; and, to a certain extent, may be reasonably deferred to in this matter. The parishioners, indeed, have a claim to be seated according to their rank and station; but the churchwardens are not, in providing for this, to overlook the claims of all the parishioners to be seated, if sittings can be afforded them. Accordingly they are bound in particular, not to accommodate the higher classes, beyond their real wants, to the exclusion of their poorer neighbours; who are equally entitled to accommodation with the rest, though they are not entitled to equal accommodation; supposing the seats not to be all equally convenient. (Fuller v. Lane, 2 Add. R. 425.) Upon a person quitting the parish, the right to use a seat in the body of the church, whatever was the nature and origin of that right, is at an end, because he has ceased to be a parishioner. (ib. 427, Byerley v. Windus, 5. Barn. and Cres. 18.)

"Renting or Purchasing Seats.] Every parishioner has a right to a seat in the church without any payment, either as a purchase, or as rent for the same; and if necessary, occupiers of pews, who are not parishioners, having no prescriptive right therein, may be put out by the churchwardens, to enable them to seat parishioners. And though such occupier has purchased the seat, and it was erected under a faculty containing a clause, permitting the party erecting the same to sell it, this will not avail against the common law right of parishioners, for such permission in the faculty is illegal. The practice of making such sales may have prevailed frequently, but it has constantly been discountenanced by the court. (Walter v. Gunner and Drury, 1 Hagg. R. 314.) And it is clear that extra-parochial persons cannot establish a right to seats in the body of the church, without a prescriptive title; and it is doubtful whether they can establish such a claim by prescription. (Byerley v. Windus, 5 Barn. and Cres. 1; 7 Dowl. and Ryl. 564.) But in a case decided in the exchequer before the above, though not published till afterwards, it was held that a pew in the body of the church may be prescribed for as appurtenant to a house out of the parish. And Macdonald, C. B. observed, it was very probable that the owner of the house, in respect of which the pew was claimed, had built or endowed the church, and that the house, though now not within the

present boundaries of the parish, was formerly within the ecclesiastical limits of the church, before they were abridged and narrowed. (Lousley v. Hayward, 1 Younge and J. 583, post.)*

"Galleries.] When the number of parishioners increase, so that the seats are insufficient to accommodate all who apply for them, the parish is bound, and may be compelled by ecclesiastical censures, to provide against these inconveniences; and therefore, upon an application for a faculty to erect a gallery in the parish church, the court will consider the grounds of the application, although it is alleged that a great majority of the inhabitants disapprove of it. For the court may refuse the whole parish joined together, or may grant, if it appears necessary, a prayer, upon the application of one against all the rest. But though the court is not bound by the wish of the majority, it will pay great attention to it; and the measure should be regularly submitted to the consideration of the vestry, in the first instance; and if it is then approved, though very few parishioners attend, they have the power of the parish delegated to them; and unless it is afterwards clearly made out that a gallery is unnecessary, or that it is highly inexpedient, the court will decree the faculty. (Groves and Wright v. the Rector of Hornsey, &c. 1 Hagg. R. 188.)

"But if more pews or galleries be necessary, it is said to be agreed that the churchwardens cannot erect them of their own head; some say it cannot be done without the license of the ordinary; and it is clear if there be a dispute whether more pews are necessary, or where they shall be placed, the ordinary is sole judge in that case. But if the incumbent, churchwardens, and parishioners do unanimously agree that more pews are necessary, and that they shall be fixed in such a place, it doth not seem that there is any necessity for the ordinary's interposition: for there can be no need of a judge where there is no controversy. (Johns 163, Ayl. Par. 484.)

"Distribution of Seats.] The distribution of seats rests with the ordinary, or bishop, who may place and displace whomsoever he pleaseth. (2 Roll. Abr. 288.) And the churchwardens, as his officers, are to place the parishioners according to their rank and station; (Pettman v. Bridger, 1 Phil. Ec. Ca. 323;) and hence it is, that if any seat, though affixed to the freehold, be taken away by a stranger, the churchwardens, and not the incumbent, may have their action against the wrong-doer. (Wats. c. 39.)

"The primary authority of appointing what persons shall sit in each seat, being in the ordinary, (3 Inst. 202,) he is to take care to order all things appertaining to divine service, so that there be no contention in the church, and that all things be done decently, and in order to give precedence to such as ought to have it. (Wats. c. 39.) And his officers for this purpose, the churchwardens, are subject to his control, if any complaint should be made against them. (Pettman v. Bridger, 1 Phil. Ec. Ca. 323.)

« Intermixture of Families.] In the Hornsey case (ubi supra) it was objected against building a gallery to accommodate parishioners who had applied for seats, that the churchwardens might put different families into the same pew, as the pews were not appropriated by any faculty, and would afford more sittings than were then occupied; but Lord * See p. 360.

Stowell said they might be appropriated by prescription, or by possessory right on allotment by the churchwardens; and a prescriptive title cannot be altered by any authority, nor a possessory title by the churchwardens alone, though it may be by the ordinary. And he intimated, that unless there was ample room, it would be improper to put individuals of different families in the same pews, which might produce contention and inconvenience. (See also Tattersall v. Knight, 1 Phil. Ec. Ca. 232.)

"Customs as to Ordering Seats.] By custom, the churchwardens may have the ordering of the seats, as in London, which by the like custom may be in other places. (Wats. c. 39.)

"So a custom time out of mind of disposing of seats by the churchwardens, and major part of the parish, or by twelve or any particular number of the parishioners, is a good custom, and if the ordinary interpose, a prohibition will be granted. (Gibs. 198.) But the churchwardens must show some particular reason why they are to order the seats exclusive of the ordinary; for a general allegation, that the parishioners have used to build and repair the seats, and that by reason thereof, the churchwardens have used to order and dispose of them, is not sufficient to take away the ordinary's power herein. (Wats. c. 39, Presgrove v. Shrewsbury, 1 Salk. 167, vide Gibson, 198. See 2 Rol. Rep. 24.)

"Exclusive right to Pew.] But both the ordinary and the churchwardens may be excluded from exercising any right in the disposal of a pew, where an individual has acquired an absolute and exclusive right therein. Still, to exclude the jurisdiction of the ordinary, it is necessary that the person claiming a pew, should shew a faculty or a prescription, which supposes a faculty, time out of mind, the faculty itself being lost. (Tattersall v. Knight, 1 Phil. Ec. Ca. 237.) Still by the general law there can be no property in pews. The ordinary may grant a pew to a particular person, while he resides within the parish, or there may be a prescription by which a faculty is presumed; but as to personal property in a pew, the law knows of no such thing. (Hawkins v. Compeigne, 3 Phil. Ec. Ca. 16.) It has been held that the priority in the seat, as well as the seat itself, may be claimed by prescription, and that an action on the case lies for it at common law. (Carleton v. Hutton, Noy. 78, Latch, 116.)

6

6

"By Faculty.] Faculties appropriating certain pews to certain individuals, in different forms, and with different limitations, have been granted in former times with too great facility. The appropriation has sometimes been to a man and his family, so long as they continue inhabitants of a certain house in the parish.' The more modern form is, so long as they continue inhabitants of the parish.' The first of these is, perhaps, the least exceptionable form. A third sort of faculty, not unusual after churches have been new pewed, either wholly or in part, appears to have been a faculty for the appropriation of certain pews to certain messuages or farm-houses: the probable origin of most prescriptive rights to particular pews. Some instances there are, too, of faculties at large; that is, appropriating pews to persons, and their families, without any condition annexed of residence in the parish. But such faculties are, so far at least, merely void, that no faculty is deemed either in the spiritual courts or at common law, good, to the extent of entitling any person who is a non-parishioner to a seat even in the body

of the church. (Fuller v. Lane, 2 Add. Rep. 426.) But see Lousley v. Hayward, 1 Younge and J. 583.

"Ordinaries at the present day are bound not to issue faculties appropriating pews to individuals, but under special circumstances. (Woollocombe v. Ouldridge, 3 Add. Rep. 1.)

66

By Prescription.] To support a prescriptive right to a pew, the mere presumption of a faculty having been anciently granted and since lost, is not sufficient, without some evidence on which a faculty can reasonably be presumed. The strongest evidence of that kind, is the building and repairing time out of mind; for mere repairing for thirty or forty years will not exclude the ordinary. The possession must be ancient, and going beyond memory, though not the high legal memory. (Per Ld. Stowell in Walter v. Gunner and Drury, I Hagg. R. 322.) By the united authority of the common and ecclesiastical law, it has been held that a prescription for a seat in the body of the church, as appurtenant to a house out of the parish, cannot be supported. See Fuller v. Lane, (ubi supra.) Byerley v. Windus, (ante.)* But in a case decided before those last mentioned, though not reported till some time afterwards, it was held, in the court of exchequer, that a pew in the body of a church may be prescribed for as appurtenant to a house out of the parish, And the chief baron Macdonald is reported to have said, "The boundaries of parishes were settled long after the foundation of churches; and those ecclesiastical districts belonging to churches at their first institution, have been since much varied, and in many cases abridged and narrowed when new churches were built. How, then, can we now say, that the owners of the house or the estate, in respect of which the pew is claimed, did not build or endow the church, or some part of it; or that this house, though now not within the parish, according to its present boundaries, was not formerly within the ecclesiastical limits of the church. Very probably it was so. The distinction between a prescription in a house out of the parish, for a pew in an aisle, but not in the body of the church, is merely made a doubt or question in some of the books; but there is no case in support of it; and there is no distinction in the reason of the thing itself. (Lousley v. Hayward, 1 Younge and J. 583, ante.)†

"Occupying and Repairing.] If any repairs have been required within memory, they must be proved to have been made at the expense of the party setting up the prescriptive right. The onus and beneficium go together. Mere occupancy does not prove the right; for though in country parishes the same families occupy the same pews for a long time, they still belong to the parish at large, unless the inhabitants of a particular house, (not the owners of particular lands) have repaired the pew. What might be the effect of a very long occupancy, where no repairs have been necessary, seems undecided. (Pettman v. Bridger,

1 Phil. Ec. Ca. 325.) An old entry in a vestry book signed by the churchwardens, stating that a pew had been repaired by A, in consideration of his using it, is evidence for a person claiming the pew under A. (Price v. Littlewood, 3 Camp. 288.)

"Consideration for Prescription.] If a person prescribe that he and his ancestors, and all they whose estate he hath in a certain messuage, have used to sit in a certain seat in the nave of the church for time out + See p. 358.

* See p. 358.

of mind, in consideration that they have used, time out of mind, to repair the said seat, and the ordinary remove him from this seat, a prohibition lieth; for this is a good prescription, and by intendment there may be a good consideration for the commencement of this prescription, although the place, where the seat is, be the freehold of the parson. But if he prescribe generally, without the said consideration of repairing the seats, the ordinary may displace him. (2 Roll. Abr. 288, Walter v. Gunner and Drury, Pettman v. Bridger, ubi supra.)

"Seats go with the House.] But the ordinary cannot grant a seat to one and his heirs; for the seat does not belong to the person, but to the house, for otherwise, when the person goes out of the town to dwell in another place, yet he shall retain the seat, which is unreasonable, (Brabin. v. Tradum, Poph. R. 140, 2 Roll. Abr. 287, Stocks v. Booth, ì T. R. 432.) And in Langley v. Sir Thos. Chute, Raym. Rep. 246, a prohibition was refused to a libel for the sole use of a pew, to which the churchwardens would have appointed another person than the person appointed by the ordinary, because (per 3 of 4 J.'s) the ordinary hath jurisdiction, and the churchwardens cannot justle out his authority, when the privilege is claimed only for defendant and his family; and if the plaintiff is grieved by the sentence, he may appeal; for the common law court may determine a point on the canon law, if the party may appeal. (May v. Gilbert, 2 Buls. Rep. 151.)

"A seat or pew in the nave or body of the church may be prescribed for, as belonging to a house; and the occupier of the house for the time being is entitled to the use of the pew, and not the owner of the estate; and it may be transferred with the messuage. (Woollocombe v. Ouldridge, 3 Add. R. 6.) And Lord Kenyon said he had seen a faculty for exchanging seats in a church, which were annexed to houses. (Stocks v. Booth, 1 T. Rep. 431.)

"Reparation pleaded.] The reparation of the pew by the person pleading such prescription, and praying a prohibition, must be alleged in pleading, because the ordinary, in the body of the church, primâ facie hath the right, and nothing but such private reparation can divest him of that right, notwithstanding possession and use time out of mind. (Woollocombe v. Ouldridge, 3 Add. Rep. 6.) But in Fettman v. Bridger, 1 Phil. Ec. Ca. 327, Sir J. Nicholl thought the defendant's plea, that the pew had been, time immemorial, annexed to his house, was sufficient, according to the practice of those courts; as it must be considered as including the averment, that the pew had been used, occupied, and repaired from time immemorial.

"When not pleaded.] It hath been held, that in two cases reparation need not be particularly pleaded; first, in case of prescription for an aisle, because, by the common law, the particular persons are supposed to repair, and so need not show it; and the foundation of the right may be for other causes than repairing, as for being founder, or having contributed to its building. The second case, (which hath often been declared for law, is where an action upon the case is brought against one who disturbs another in his seat, which disturber being a stranger, and having not any right primâ facie, the possession of the other is a sufficient ground of action, and it needs not be alleged that he repairs. (Gibs. 197, 198; 2 Roll. Rep. 24.)