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IN the following sheets I propose to bring toge- ther, from the various authorities, the law re- specting pews or seats in churches. As there is not at present any separate volume on this subject, and such a work seems within the reach of mere industry, I am led from its general interest to undertake it, and hope I shall not altogether fail of producing something useful to the public. I shall be careful above all things to avoid errors, and shall admit nothing as law into my book which has ever been questioned without taking notice of the authorities on both sides. Should another edition be called for, I shall spare no pains to improve it. The order I have prescribed to myself is this : First, to notice the Church, with its appendages, including the seats : Secondly, the provisions for its repairs : Thirdly, the titles to seats, by prescription; by faculty ; by general custom; by particular custom : Fourthly, the remedies against intruders for illegal occupation, by the VI ordinary, by the parlies disturbed: Fifthly, the remedies against the ordinary for illegal dis- position : Sixthly, chapels : Seventhly, sec- tions of the new church acts of 58 and 59 Geo. 3. and 3 Geo. 4. which extend to old churches. And in an Appendix to abridge those acts and the act 5 Geo. 4. as far as they relate to pews. I have used in most cases the words of my authorities ; and where they are not named, they are generally Sir Simon Degge's Parson's Councillor (5th edition), Nelson's Rights of the Clergy (3d edition), and Shaw's Parish Law (4th edition.) CONTENTS. Page CHAP. I. On the Church itself, with its appendages, including the Seats 1 CHAP. II. On the Provisions for Repairs .... 16 CHAP. III. On the title to Seats by Prescription ; by Faculty ; by General Custom ; by Particular Custom ' 61 CHAP. IV. On the Remedies against Intruders for the illegal occupation of Seats 78 CHAP. V. On the Remedies against the Ordinary for the illegal disposition of Seats 84 CHAP. VI. On Chapels 89 CHAP. VII. Sections of the New Church Acts which extend to Old Churches 100 APPENDIX .111 CHAP. I. ON THE CHURCH ITSELF, WITH ITS APPENDAGES, INpLUDINO THE SEATS. And First, of the Church. IT was not till long after the first preaching of Christianity in this country that parishes, ac- cording to the present acceptation of the word, were known. The first bishops amongst the Britons presided over large districts, where the villages were few, and the soil little cultivated. Each of these districts was called a parish or diocese, and into the treasury of its church were paid all oblations and other ecclesiastical dues : these were divided by the bishop or his officers into four parts one whereof was applied to the maintenance of the ministry, another to the use of the poor, another to the reparation of the B church, and the fourth 'to the bishop himself. This custom continued in certain places in the north of Germany, and in Holland, down to the Reformation. The number of Christians increasing, it be- came necessary to build other churches, and divine service was performed in such churches by Presbyters chosen for the purpose by the bishops ; but though these lesser churches were built as convenience required, in places remote from the mother church, the ministers continued to reside at the head church, to which alone the tithes and other dues were paid as before. This seems to have been the order of things amongst us at the coming in of the Pagan Saxons, under whom all traces of Christianity were in a manner lost ; but on the conversion of some of the Saxon princes, the ruined churches of the British Christians were it seems restored, and others built as well by the missionary clergy as by their converts ; and the division of the country into dioceses or bishop's parishes being- revived, the ancient plan for maintaining the church was for a time re-established ; but churches were still so uncommon, that the people worshipped God in the open air in places I marked out for the purpose by the erection of a cross. About this time King Ethelbert built two new churches, and incited his nobility by his example to build others; and one Birinus, an Italian, sent hither by Pope Honorius, built a church at Dorchester, in Oxfordshire, which long remained a cathedral church. The state of an ambulatory clergy being found inconvenient, small bodies of priests were settled by the bishops in some of the new churches scattered over their several dioceses, which bodies being afterwards enriched by the beneficence of laymen, rose into conse- quence under the name of conventual and colle- giate churches, abbies, and monasteries. And now, though not yet common, began the institution of our parishes, i. e. about 622 years after Christ, or a little later. For to some of the new churches the bishops appropriated a certain part of the tithes, payable in the neigh- bourhood of the new church, for the maintenance of the priest he placed there ; the bishop himself appointing as well the portion of tithes as the limits of the lands to which the church should belong ; and this was done at the dedication of the new church to some saint. B 2 But when a church was built by a layman for the convenience of himself and his tenants, and by the bishop's appointment had a minister settled amongst them, such church could not be legally consecrated without the allotment of a manse, or house and glebe, generally made by the lord of the manor, who thereby became patron of the church. Other persons at the time of dedication often contributed small por- tions of ground, sometimes within the manor, and sometimes at a distance. The lords of manors, at their first building of churches, often allotted no more than one third of their tithes to the parish priest, and kept the other two parts in their own hands for the use of the church and poor, till by degrees they either paid the other two parts to the priest, or else with the bishop's consent, assigned them to some religious house. The bishop was not obliged to consecrate a new church, and if consecrated, it was in his power to assign to it a right of burial, which settled it as a parish church ; or to withhold it, in which case it Be- came a chapel. A law of King Edgar, made about 670, obliged the lord of a manor who had within his fee a church with a burial place, to pay to such church one third of his tithe ; but if the church had no privilege of burial, he was to pay his full tithe to the bishop, and maintain the chaplain besides. Above !200 years after the conversion of the Saxons, Bede complained to Egbert, Archbishop of York, of the great want of parochial settle- ments, or rural churches. Until consecration, the law takes no notice of new churches as churches, nor have they any privileges as such, nor are the sacraments to be administered in them; and before consecration they must be endowed. And not only the bishop, by refusing to consecrate, may hinder the establishment of a new church or chapel in any parish ; but also any other person thinking himself injured thereby, as by encroaching upon his ground, stopping his way, or the like, may apply to the temporal courts, who, as they see cause, will grant him redress. The church consists of three principal parts ; the belfry or steeple ; the body of the church, with the aisles and public chapels; and the chancel. The freehold of the whole church and church- yard is in the rector where tin? living is not iinpropriate ; in the vicar where the living is an iinpropriate rectory, Shaw 17, 79; and in the lay-rector or impropriator, as it seems, where it is a donative or perpetual curacy. See the authorities on this subject in Blackst. and Shaw. And these may bring actions for trespass done therein. And as to actions by churchwardens, see Watson, c. 39. The body of the church, the belfry, and all public and common chapels within or adjoining to the church, are by the laws and customs of England, to be re-edified, maintained, and re- paired at the charge of the parishioners and landholders within the parish. And herein the common law and custom of England are kinder to the clergy, says Sir Simon Degge, than those of other countries, where the whole charge lies upon the incumbent ; but these repairs, as well as the repairs of the chancel, will be treated of in the next chapter. As it is not the compiler's object to enlarge on the subject of the present division, he begs to refer those desirous of information herein to the appropriate titles in Sir Simon Degge, Nelson, and Shaw, and the authorities there cited. Secondly, of the Pews or Seats. As to the structure of the pews or seats within the church ; " They are built for the ease of the parishioners to sit, kneel, and stand in for the hearing the word of God read and preached, and joining in prayers and other reli- gious duties with the other parishioners. " They are to be built and repaired, as the church is to be, at the general charge of the parishioners, unless any particular person be chargeable to do the same by prescription. " The seats ought to be regular, and of a moderate height, that the behaviour of the pa- rishioners may the better be observed; and if any body of their own heads shall presume to build any seat in the church without the license of the ordinary, or the consent of the minister and churchwardens, or in any inconvenient place, or too high, it may be pulled down by order from the bishop or his archdeacon, or by the churchwardens, by the consent of the in- cumbent [parson], for in him are the freehold of the church, and all things annexed to it : and therefore if any one presume to cut or pull down any seat annexed to the church, he may 8 have an action of trespass against the miscloer (though he formerly set it up) if he do it without his consent, or order from the ordinary ; but if the seat be set loose, he that built it may remove it at his pleasure as I conceive, Contra, stat. 10 H. 4. and see Watson, c. 39. " But though the freehold of the church be in the incumbent, yet he cannot pull down any of the seats anciently erected or of late erected, but by license from the bishop, or by the con- sent of the churchwardens. (< If any seats annexed to the church be pulled down, the property of the materials is in the in- cumbent, and he may make use of them if they were placed in the church by any one of his own head without legal authority ; but for the seats erected by the parishioners by good authority, I take it, the property of the materials upon removal is in the parishioners." Degge, 171, 172. As to Degge's opinion above stated, that the person placing in the church a seat not annexed to the freehold may remove it at his pleasure, Shaw, (p. 76, 4th edition,) gathers from various authorities that such a moveable seat becpmes part of the goods and utensils of the church. 9 The seats in the church are commonly divided into three kinds, those in the body of the church, those in the aisles, and those in the chancel ; and where no particular prescriptions, grants, or customs operate to the contrary, the law respect- ing them is this. And fir st y as to the Seats in the Body of the Church . The freehold of the church and the seats affixed, are, as before stated, in the incumbent for the time being, but not absolutely like other freeholds. The church itself is dedicated to the service of God, and the seats are built that the people may more conveniently attend divine ser- vice ; therefore where any contention is about a seat in the body of the church, upon complaint made to the ordinary, he may decide the contro- versy, by placing that person in it whom he thinks fit; and this power is conferred upon him by law, because he who hath the general cure of souls within his diocese, is presumed to have a due regard to the qualities of the contending parties, and to give precedence to him who ought to have it. 10 And although the seats are built aud repaired at the charge of the parish, and the church- wardens should prescribe that by reason thereof they have been accustomed to dispose of such seats to such persons as they thought fit ; yet since of common right the ordinary hath the disposal thereof, and by the same right the pa- rishioners ought to repair them, therefore such prescription shall not be allowed against his jurisdiction. But this jurisdiction extends only to placing or displacing the inhabitants of the parish, for the ordinary cannot grant a seat to a man and his heirs, because a seat in the church properly belongs to some house in the parish, and not to the person, but as owner of the house ; and if such grant should be good to a man and his heirs, they would have the seat though they lived in another parish, which is very unreasonable, and contrary to the original intention of building seats in churches, which was for the inhabitants of the parish, that they might more conveniently attend the service of the church ; and certainly if the bishop cannot make such a grant, no pri- vate person can, for the reasons before men- tioned. 11 But where there is no contention, and the bishop cloth not interpose because there is no complaint, there the minister and churchwardens have power to place the parishioners in seats ; and in some places the churchwardens alone have that power by custom, as in London. If a seat is built in the body of the church without the consent of the bishop, the church- wardens may pull it down, because it was set up by a private person without the license of the ordinary, Shaw 76. Mr. Williams, in his Laws of the Clergy, cites Watson, c. 39, and Gibson, 198, as autho- rities that there may be a custom whereby any particular number of the parishioners may have the ordering of the seats without the concurrence of the minister and churchwardens, as in Lon- don, and by the like custom in other places ; and if the ordinary interpose, a prohibition lies ; but this is against principle, and therefore bad. And if through the increase of inhabitants more pews or galleries be necessary, it is said 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 ne- If cessary, or where they shall be placed, the ordi- nary is sole judge in that case. But if the in- cumbent, churchwardens, and parishioners do unanimously agree that more pews are neces- sary, and that they shall be fixed in such a place, it does 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. And because seats in the body of the church are to be disposed of by the minister and church- wardens, it was formerly held a man could not prescribe for a seat there, and so expressly de- cided, see More's Reports, Pym and Gor win's case ; yet it was held he might prescribe for the upper part of a seat there, (for priority in a seat may be prescribed for as well as a seat,) and it is now settled that a seat in the body of the church may be prescribed for in a que estate on the ground of repairing, vide post, and see the case of Buxton v. Bateinan, T. T. 4 C. 2. B. R. as to right by prescription. Secondly, as to Seats in the Aisles of a Church. It seems to have been always agreed that a man might prescribe for a seat in the aisles of a church, in consideration of having built and 13 always repaired the same, even though he lived in another parish. The law is, that if a rnan hath a house in a parish and a seat in the aisle of the church which he hath repaired at his own charge, he shall not be dispossessed by the bishop ; if he should, he may have a prohibition, because it shall be in- tended to be built by his ancestors with the con- sent of the parson, patron, and ordinary, and appropriated by them to his and their use ; and if he is disturbed by any other person sitting there, he may have an action on the case against him ; but then he must prove that he repaired it: and so it was adjudged between Hawtree and Dee for seats in a little chapel in the north part of the chancel of Pet worth in Sussex. For though no man can tell the true reason of pre- scriptions, yet some probable reason must be alleged to gain such peculiar right, and none is more probable than repairing it. And this will entitle a man to a seat in an aisle, though he lives in another parish, and therefore where the plain- tiff sets forth that he had an ancient messuage in the parish of H. and that he and all those whose estate he had in the same house had a seat in the aisle of the parish church of B. this is a good 14 prescription for a seat in the aisle, because he or they might build and repair it, though it is not a good prescription to have a seat in nave ecclesia of another parish. Sid. 361. And thirdly, as to Seats in the Chancel. The ordinary hath in general no authority to place any one there, for the freehold of the whole church is in the rector ; but between the body of the church and the chancel there is this difference, that the body is repaired by the parishioners, and the chancel, not. And it is because the chancel is repaired by the parson, i. e. the owner of the great tithes, that he hath the chief seat in it ; and repairing of the chancel is a discharge from contributing to the repairs of the church, unless for lands which are not parcel of the parsonage. But if there be room for any other seats, the bishop can grant faculties for the building and disposing of them in the chancel, as well as in the body of the church; and if the bishop do not interpose, then the parson may dispose of the seats in the chancel in the same manner as the minister and churchwardens do of those in the body of the church, because of his repairing it. But if any controversy arise, then there lies an appeal 15 to the bishop from the one as well as from the other. But as to this matter, the case is very peculiar in the city of London, for there the churchwardens repairing the chancel, as well as the body of the church, do equally dispose of the seats in both ; but it must still be understood with the same subordination to the bishop as in other churches. But yet according to Noy, 133, a man may prescribe to have a seat there, as belonging to an ancient messuage. Noy's au- thority is not to be depended upon when he stands alone ; but the doctrine of the whole of this section seems reconcileable with Gibson, 221, 223, 224. Though the ordinary may never have inter- fered, the churchwardens cannot prescribe for a right to exclude him ; but query, if the reason given in Rolle's Abridgment is a good one, i. e. that churchwardens cannot inherit. There is a better reason in Shaw, 75, which is, that the churchwardens (and that even in London where they have greater privileges) are but the officers of the bishop in these respects. n; CHAP. II. OF THE PROVISIONS FOR REPAIRS. IT is a general rule that the parishioners are not bound to repair the chancel, but if the custom has been for the parishioners, or for the estate of a particular person to repair the chancel, that custom shall be good. And this is the common law; but there is a question where the great tithes are disjoined from the spiritual incum- bency, and are in the hands of a lay impro- priator, as between such impropriator and the vicar. This matter rests entirely on the canon law. A constitution of Archbishop Winchelsea ordains that the chancel shall be repaired by the rectors (i. e. impropriators) and vicars, or others to whom such repair belongs ; whereupon Lind- wood observes that where there are both in the same church they shall contribute in proportion to their benefice, where there is not a certain direction, order, or custom to which of them such reparation shall appertain, 253. 17 When lands are given to the repair of the church in general, it seems reasonable that this should be _ construed to extend to the repair of the chancel, as well as of the rest of the church; for the word church doth equally include the chancel, as well as the nave or body of the church ; unless the donation be to the body of the church only, in which case the chancel ought to be excluded. And although churchwardens are not charged with the repairs of the chancel, yet they are charged with the supervisal thereof, to see that it be not permitted to dilapidate and fall into decay ; and when any such dilapidation shall happen, if no care be taken to repair the same, they are to make presentment thereof at the next visitation. Williams' Laws of the Clergy, 135. The churchwardens are a corporation only for goods to the use of the church, and not lands ; but the city of London is in this to be excepted, for there, by special custom, the churchwardens, with the minister, make a corporation for lands, as well as for goods, and may, as such, hold, purchase, and take lands for the use of the church, and sue, and be sued on the account thereof, as well as for goods and chattels ; and IS this is alleged as a reason for the other custom, which hath also obtained in London, for the pa- rishioners there to choose both churchwardens, exclusive of the minister, who is also there, ex- cused from repairing the chancel; besides, if the minister there should choose one of the churchwardens according to the canon, he, with the said churchwarden, as the major part of the corporation, may dispose of their lands to the damage of the parishioners, and therefore it is not safe there to lodge so great a trust in him. 2 Cro. 325; 3 Cro. 551, 552; Co. 1. Inst. fol. 3; Lane 22; 1 Rolle's Abr. 339. In the city of London, as has been already mentioned, the parishioners by immemorial cus- tom repair the chancel as well as the body of the church ; and this custom is also in the city of Norwich, and some other cities and large towns in England, where there are no tithes to be charged with this repair, or to be sequestered if neglected. Also in some churches the vicar is by special composition bound to this repair, and then the vicar hath the freehold of the chancel as well as of the body of the church and church- yard ; the former by virtue of this Composition, the latter by virtue of his induction. For every 19 vicar when he is inducted into the church takes possession of the body of the church and of the churchyard as of his freehold, and is then as it were by livery and seizin admitted thereto, as the rector is by like induction to the whole church. Watson, 304. And as to the repairs of the chancel ; where there are more impropriators than one, (as is very frequently the case,) the prosecution is to be carried on by the churchwardens to compel them to repair ; and it seems advisable for the churchwardens first to call a vestry, and there, after having made a rate for the repair of the church and other expeness necessary in the exe- cution of their office, that the vestry do make an order for the churchwardens to prosecute the impropriators at the parish expence. In which prosecution the court will not settle the propor- tion amongst the impropriators, but admonish all who are made parties to the suit to repair the chancel under pain of excommunication. Nor will it be necessary to make every impropriator a party, but only to prove that the parties pro- secuted have received tithes or other profits be- longing to the rectory sufficient to repair it ; and they must settle the proportion amongst them- c2 selves. For it is not a suit against them for a sum of money, but for a neglect of the duty which is incumbent on all of them. Though it it may be advisable to make as many of them parties as may be come at with certainty. Wil- liams, 130. If any man have a private chapel in, or affixed to, any church, it must be repaired by him that has the proper use of it, for he that has the profit ought to bear the burden. 2 Inst. 489. We come now more particularly to treat of the rate ; in doing which are to be considered The object of a rate ; The manner and order of making it ; The persons rateable and in respect of what property ; As to resisting an illegal rate ; Means of collecting a rate. And first, of the object of a Rate. Although the churchwardens need not, per- haps, the advice, consent, or authority either of the minister, parish, or ordinary as to the amend- ing or repairing any thing which belongs either to the fabric, churchyard, or utensils of the church, but are themselves sole judges of what is needful to be done herein, as being invested with the authority of the ordinary and the whole trust of the parish for this purpose on their first entering into their office : yet it is very proper and advisable, for the greater content and satis- faction of the parishioners,, that they do not enter on any great and chargeable repairs without first taking the advice of their neighbours, who are to bear the charge of them. But if they will act without any such advice by virtue of their office, they have power to do so ; and though the money be imprudently and improvidently, yet if it be truly and honestly laid out, they must be reimbursed again, and the parishioners can have no remedy herein unless some fraud or deceit be proved against them, which must and will be at all times redressed. And this is spoken by way of caution (says Shaw) that parishioners may be warned how they trust such men in this office as are not fit for it ; or if they do, not fruitlessly to commence suits against them afterwards for what they can have no redress. Though if, through improvidence, indiscretion, or negligence, they waste the church goods in their custody, or otherwise much damnify the parish, they may, on proof thereof, by the authority of the ordinary at any time be removed, and others chosen in their stead. Although the parish be in different counties, yet the authority of the churchwardens is the same in every part of it, as if it had been in the same county ; though it is otherwise as to con- stables, overseers of the poor, and other parish- officers; for where there are different tithings, different hundreds, and different counties, there must be different constables, and different over- seers of the poor, although in the same parish ; and they must account for their offices before different justices, and at different sessions, and different assizes; but the churchwardens, being officers in ecclesiastical affairs, must follow the division of ecclesiastical jurisdiction, which is into dioceses, archdeaconries, deaneries, and pa- rishes; and therefore where there is the same parish, the same deanery, the same archdeaconry, and the same diocese, the same churchwardens must serve for the whole parish ; and they have the same power of executing their office in every part of it, in how many different counties or different hundreds soever it be ; and must at the same visitation, whether of the bishop, or arch- deacon, or other ordinary, account for the dis- charge of it : and because the church is that, wherein all the members of it are united, of that deanery, and of that archdeaconry, and of that diocese, must the whole parish be reputed to be, in which the parish church stands. The churchwardens are to raise money for the repair of the church, and under this term are included the churchyard walls, the walls of the church and steeple, the floor, the pulpit, and the pews; the windows, iron bars, and glass, the roof, timber with lathes, nails, &c. the covering of lead, tiles, &c. the doors with locks and keys, stairs, floors, bells, wheels, and ropes in the steeple. The ornaments, &c. for which parishioners are chargeable, are the com- munion table and coverings of the communion cups, the bread and wine, candles, the Bible and other books appointed to be read in churches, the surplice, pulpit cloth and cushion, the clerk and sexton's wages, &c. washing the church linen, and monies disbursed by the churchwar- dens about the parish business; these are to be raised by a rate or tax on the parishioners regu- larly, and not on lands. 2 Rolle, 291. But 24 though lands ought not generally to be taxed for church ornaments, yet by custom both lands and houses may be liable to be so taxed. And it seems now settled (v. Shaw, 92) that persons not residing in the parish are rateable in respect of their lands equally for repairs and ornaments, notwithstanding several old decisions to the contrary. But if the churchwardens add any thing new, either to the fabric, churchyard or utensils, which was not before, they must have the consent of the major part of the parishioners, or the pa- rishioners may refuse those disbursements in their accounts ; for to such expences they cannot be charged without their consent : nor will the law in this case allow any rate to be good that shall be made in order to it. In proof Shaw cites Jeffrey's case, 5 Co. which does not seem to apply. And if the newly added particulars be in the church, as a gallery, the license of the ordinary is also necessary, as well as the consent of the parish, before they can be legally and justifiably added ; and therefore though the major part of the parish be consenting to the new addition, and thereby the churchwardens may be empower- 25 ed, as far as in the parishioners lieth, to make and levy a rate for the reimbursing themselves of the charges ; yet if any one person in the parish dissent from it and refuse payment, they can have no remedy against him, because the thing being done without that authority which the law requires to warrant it, no rate will be judged legal which shall be made for it. V * But if the thing which is added be not in the church, nor is added to the fabric or its appur- tenances for any religious use, but only for the benefit, convenience, or curiosity of the parish- ioners, as a clock, a dial, chimes, a super- numerary bell, &c. in such case the license of the ordinary is not requisite ; but it will be suf- ficient if the major part of the parish be con- senting thereto. But if the new erection be in the chancel, the leave of the parson is also necessary; because in the chancel he hath a property, and it is a part of his glebe ; and therefore if the churchwardens set up any new seat in the chancel, or place rails there at the altar, they must have not only the consent of the parish, but also the leave of the parson, as well as the license of the bishop, before it can be legally done. And therefore if 26 the parson witli the bishop's license, or any other person with the consent of the parson and such license, have a desire to set up rails at the altar at their own proper costs and charges without the parish giving any thing towards it, the parish is in no way concerned either to give or deny its consent thereto. It is not clear in the books that in a vicarage the consent of the impropriator and vicar, both, is necessary in the case last mentioned, but from principle it seems to be so. And whether an individual authorized as aforesaid, rail in the altar, or build himself a seat in the chancel, the law seems the same. If a church be so much out of repair that it is necessary to pull it down ; or so small that it needs to be enlarged : the major part of the pa- rishioners, having first obtained the consent of the ordinary to do what is needful, and meeting upon due notice, may make a rate for new building, or enlarging, as there shall be occa- sion. This was declared in 29 Car. 2. by all the three courts successively; notwithstanding the cause was much laboured by a great number of Quakers who opposed the rate. 2 Mod. 222, Gibson, 197. And the proper method of pro- 27 ceeding in such case seems to be this : that the churchwardens first take care that public notice be given for a general vestry of the whole parish for that purpose conformably to the act of 58 Geo. 3. after mentioned : which notice ought to be attested and carefully preserved, as being the foundation of all the subsequent proceedings. At the time and place of meeting, the minister and churchwardens ought to attend, and when the parishioners are assembled, the rector, vicar, or perpetual curate, if present, is to preside; but if the minister is not present, then the chair- man is to be chosen by plurality of votes of the persons assembled, to be ascertained as directed by the said act of 58 Geo. 3. cap. 69 and act of 59 Geo. 3. cap. 85. which acts however do not extend to the city of London and borough of Southwark. And the chairman, or one of the churchwardens, or such person as shall be ap- pointed for the purpose, ought to enter the orders of the vestry, and then have them read and signed. And agreeably thereunto, a peti- tion to the ordinary for a faculty (setting forth the particulars) should be drawn up and signed by the chairman, churchwardens, and parishioners present, and approving thereof. Whereupon the ordinary will issue a monition to cite all per- sons concerned to shew cause why a faculty should not be granted. Upon the return of which citation, if no cause or not sufficient cause be shewn, the ordinary will proceed to grant the faculty. If a church fall down, the parishioners are not bound to rebuild it. 1 Ventris,, 367. Subject to the general rule that the chancel is to be repaired by the impropriator and vicar, or where there is no impropriator, by the rector, (in legal terms, by the parson,) and subject to any special custom of repairing particular parts of the church, the churchwardens are to provide for all repairs by a rate to be made, according to Degge, in this manner. Of the manner and order of making a Rate. The Sunday before the churchwardens design to make a levy, they are to give public notice in the parish church immediately after Common Prayer, of the time and place designed for mak- ing the intended levy ; and then at the place and time appointed, the churchwardens and the pa- rishioners there met are to consider what sum of money will be necessary to be raised for such 29 repairs as shall be then needful ; and after they or the major part of the parishioners there met have agreed what sum is fit to be raised, then they or the major part there present are to pro- ceed, and make an equal levy upon all the pa- rishioners and landholders within the parish; and if any of the parishioners refuse to pay their rates, being demanded by the churchwardens, they are to be sued for and to be recovered in the ecclesiastical court, and not elsewhere. But see post. And if the parishioners, when they come toge- ther at such meeting, refuse or neglect to join in making such assessment, or refuse to meet, Degge conceived the churchwardens having just cause for such assessment might proceed alone ; for if the churchwardens should neglect to make the repairs when duly admonished by those who have the power to visit, within a certain time the ordinary or other visitors should limit, they might proceed against the churchwardens by ecclesiastical censures to compel them to do it : and the law (continues he) never compels any- body to a thing they have not means to effect. And it should seem in this case that the parish- 30 ioners are likewise punishable by the ecclesias- tical judge for their neglect in this kind. But some are of opinion that the churchwardens cannot proceed alone, but must compel the pa- rishioners to do it by ecclesiastical censures. Upon this last position Degge queries, and Shaw is express to the contrary, and cites Comber. 344 ; but it is countenanced by Watson, 389, where it is said churchwardens have no power to make a rate themselves, exclusive of the pa- rishioners, their duty being only to summon the parishioners who are to meet in vestry. Mr. Williams' late work favours Shaw's opinion, V. pp. 133, 147. See post. By statute 58 Geo. 3. cap. 69 (before referred to) intituled " An Act for the Regulation of Parish Vestries." It is enacted that no vestry or meeting of the inhabitants in vestry of or for any parish shall be holden until public notice shall have been given of such vestry, and of the place and hour of holding the same, and the special purpose thereof, three days at the least before the day to be appointed for holding such vestry, by the publication of such notice in the parish church or chapel on some Sunday during or immediately after divine service, and by affixing the same fairly written or printed on the principal door of such church or chapel. And as to the manner of ascertaining the ma- jority of votes in vestry, the said act of 58 Geo. 3. cap. 69. sect. 2. directs that in all cases of equality of votes upon any question arising therein, the chairman shall, in addition to such vote or votes as he may by virtue of this act be entitled to give in right of his assessment, have the casting vote ; and minutes of the proceedings and resolutions of every vestry shall be fairly and distinctly entered in a book to be provided for that purpose by the churchwardens and over- seers of the poor, and shall be signed by the chairman, and by such other of the inhabitants present as shall think proper to sign the same. Sect. 3. In all such vestries every inhabitant present who shall, by the last rate which shall have been made for the relief of the poor, have been assessed and charged upon or in respect of any annual rent, profit, or value not amounting to 50., shall have and be entitled to give one vote and no more ; and every inhabitant there present, who shall in such last rate have been assessed or charged upon or in respect of any 32 annual rent or rents, profit, or value amounting to 50. or upwards, whether in one or in more than one sum or charge, shall have and be en- titled to give one vote for every 25. of annual rent, profit, and value upon or in respect of which he shall have been assessed or charged in such last rate; so nevertheless that no inha- bitant shall be entitled to give more than six votes : and in cases where two or more of the inhabitants present shall be jointly rated, each of them shall be entitled to vote according to the proportion and amount which shall be borne by him of the joint charge ; and where one only of the persons jointly rated shall attend, he shall be entitled to vote according to and in respect of the whole of the joint charge. Sect. 4. When any person shall have become an inhabitant of any parish, or become liable to be rated therein since the making of the last rate for the relief of the poor thereof, he shall be entitled to vote for and in respect of the lands, tenements, and property for which he shall have become liable to be rated, and shall consent to be rated, in like manner as if he should have been actually rated for the same. And by act of 59 Geo. 3. cap. 85, after re- 33 citing the last act, it is enacted, sect. 1. That any person who shall be assessed and rated for the relief of the poor in respect of any annual rent, profit, or value arising from any lands, tenements, or hereditaments situate in any parish in which any vestry shall be holden under the said recited act, although such person shall not reside in or be an inhabitant of such parish, shall and may lawfully be present at such vestry ; and such person shall have, and be entitled to give, such and so many vote or votes at such vestry in respect of the amount of such rent, profit, or value as by the said act any inhabitant of such parish present at such vestry might or ought to have, and be entitled to give in respect of such amount, and to all intents and purposes as if such person were an inhabitant of such parish ; any thing in the said recited act to the contrary in anywise notwithstanding. Sect 2. Enacts that in all cases where any corporation, or body politic, or corporate, or company, shall be charged to the rate for the relief of the poor of such parish, either in the name of such corporation, or of any officer of the said corporation, it shall and may be lawful for the clerk, secretary, steward, or other agent, i) 34 duly authorized for that purpose, of such corpo- ration, or body politic, or corporate, or company, to be present at any vestry to be holden in the said parish under the said recited act ; and such clerk, secretary, steward, or agent, shall be en- titled to give such and so many vote or votes at such vestry, in respect of the amount of the rent, profit, or value of such lands, tenements, or hereditaments, as by the said act any inhabitant assessed to such rate, present at such vestry, might or ought to have, and be entitled to in respect of such amount. Sect. 3. Enacts that no person who shall have refused or neglected to pay any rate for the relief of the poor which shall be due from and shall have been demanded of him, shall be en- titled to vote or to be present in any vestry of the parish for which such rate shall have been made until he shall have paid the same; nor shall any such clerk, secretary, steward, or agent, be entitled to be present, or to vote, nor shall be present or vote, at any vestry in such parish unless all rates for the relief of the poor which shall have been assessed and charged upon or in repect of the annual rent, profit, or value, in right of which any such clerk, secretary, 35 steward, or agent, shall claim to be present and vote, which shall be due, and which shall have been demanded at any time before the meeting of such vestry shall have been paid and satisfied. In Shaw's work is inserted the form of a church rate, as follows : We, the churchwar- dens, overseers of the poor, and parishioners of the parish of F. in the county of M. whose names are subscribed, do hereby this day of in the year at our vestry meeting now assembled, rate and tax all and every the inhabitants of the parish, &c. here- under mentioned, for and towards the repairs of the church of the said parish, in the several sums following, viz. . s. d. A. B. for one tenement, &c. ..086 C. D. for his lands called, &c. . . 7 E. F. for one messuage .... 5 G. H. for one tenement called, &c. 046 J. K. 7 , i Churchwardens. L. M. 3 N. O.i ; Overseers of the Poor. R. S. 7 / Parishioners. 36 Rates for reparation of the church are to be made by the church wardens, together with the parishioners assembled upon public notice given in the church. And the major part of them that appear shall bind the parish : or if none appear the churchwardens alone may make the rate, be- cause they and not the parishioners are to be cited and punished in defect of repairs. But the bishop cannot direct a commission to rate the parishioners, and appoint what each one shall pay : this must be done by the churchwardens and parishioners; and the spiritual court may inflict spiritual censures till they do. Gibson, 196 ; 1 Bac. Abridgment, 373. But if the rate be illegally imposed by such commission from the bishop, or otherwise, with- out the parishioner's consent ; yet if it after be assented to, and confirmed by the major part of the parishioners, that will make it good. Wat- son, c. 39. The rate must be made upon the whole parish, and not upon a particular person, and made to raise money to repair the church, though that word may comprehend the chancel ; yet if the money is laid out to repair the chancel, the pa- rishioners are not to allow it in the chtirchwar- 37 dens' accounts. And if it is expressly made for the repair of both, it is illegal, and the temporal court will prohibit any proceedings to recover it. 1 Mod. 236. But if a rate is made on lands to repair the church, and for dividing the church house and relieving the poor, &c. it is too late to move for a prohibition after sentence in the spi- ritual court, and to suggest that several of these matters are not cognizable in that court. Shaw, 82. If two churches be united, the repairs of the several churches shall be made as they were before the union. When a church rate is to be made, it ought to be laid on all by an equal pound rate accord- ing to the yearly value of the lands or houses, without grieving or overcharging any one, or sparing and easing another, or leaving any out of the rate who ought to be charged to it. For if any be overcharged or others undercharged, the ordinary will condemn the wrong done when- ever it comes before him ; but if any one be left out who ought to be charged to it, it is an injury to the whole parish ; and this is a sufficient reason for the ordinary (on complaint made to him) to quash the whole rate, and send the . 38 church wardens to make a new one. And in all these rates it will be fairest for the churchwar- dens not to assess themselves, but to leave this to be done by the parishioners who concur with them in making the said rate. A justice of peace cannot impose a tax for the repairs of a church. Degge thinks a prohibition lies to a suit for an unequal rate, 168; but quotes autho- rities on both sides. If the churchwardens defer the making or ga- thering their rate till they are out of their office (as is through mistake or negligence too often done) they are then deprived of all legal autho- rity of doing either ; [Vide decision 12 East, 556 ; Rex v. Haworth ;] and therefore they ought to take care, after they have well surveyed and computed the repairs, to make and gather the rate as soon as they conveniently can, and within the time of their office prosecute all such as refuse to pay what they are rated to it, or at least present them in their last presentment at the Easter visitation, when they go out of their office. But if it happen that there be no such prosecution begun, or presentment made before they were out of their office, then they may, on their giving up their accounts, pass ovef their 39 arrears, with the rate on which they are due, to their successors, who have full authority to sue for and recover the same ; all such arrears being a debt due to the parish, which they are by their office to take care to recover for the pa- rishioners. Two justices (Quorum unus] may make their warrant both to the present and subsequent churchwardens, to levy all sums and arrear of every one who shall refuse to contribute accord- ing to the assessment, and in default of distress, commit them to gaol till payment be made. Dalton, 155. [This is delivered for law by Mr. Dalton, but I do not remember any other autho- rity for it. Shaw, 92. The other books are silent upon this power. Compiler.] If more be raised than is necessary, the church- wardens are accountable for the overplus, they not being able to compute to a shilling. When these rates are made, it is the proper business of the churchwardens to collect the money, but by custom the constable may be bound to do it; and therefore if a libel is brought against him for refusing to collect it, a prohibi- tion shall not go, because the spiritual courts may try this custom. Hardres, 510. 40 Of the persons rateable, and in respect of what Property. An order and direction set down by Dr. King, Dr. Lewin, Dr. Lynsey, Dr. Hoane, Dr. Sweite, Dr. Steward, and other Doctors of the Civil Law, to the number of thirteen in all, assembled together in the common dining hall of Doctor's Commons in London, touching a course to be observed by the assessors in their taxations of the church and walls of the churchyard of Wrotham in Kent ; and to be applied generally upon occasion of like reparations to all places in England whatsoever. Every inhabitant dwelling within the parish is to be charged according to to his ability whether in land or living within the same parish, or for his goods there, that is to say, for the best of them, but not for both. Every farmer, dwelling out of the parish, and having lands and living within the said parish, in his own occupation, is to be charged to the value of the said lands or living, or else to the value of the stock thereupon, even for the best, but not for both. Every farmer, dwelling out of the parish, and having lands and living within the parish in the occupation of any farmer or 41 farmers is not to be charged, but the farmer or farmers thereof are to be charged in particularity every one according to the value of the - land which he occupies, or according to the stock thereupon, even for the best, but not for both. Every inhabitant and farmer occupying arable land within the parish, and feeding his cattle out of the parish, is to be charged for the arable lands within the parish, although his cattle be fed out of the parish. Every farmer of any mill within the parish is to be charged for that mill ; and the owner thereof, if he be an inhabitant, is to be charged for his liability in the same parish besides the mill. Every owner of lands, tene- ments, copyholds, or other hereditaments, inha- biting within the parish, is to be taxed according to his wealth in regard of a parishioner, although he occupy none of them himself, and his farmer or farmers also are to be taxed for occupying only. The assessors are not to tax themselves, but to leave the taxation to the residue of the parish. Godolphin, Appendix, 10, 11. Houses as well as lauds are chargeable to these repairs, and in some places houses only, as in cities and large towns, where there are houses only and no lands to be charged. Hetley, 42 130. All the hereditaments and property in the parish is to be rated. Ib. and Latch. 203. By the 17 Geo. 2d. c. 37. It is enacted that where there shall be any dispute in what parish or place improved wastes, and drained and im- proved marsh lands lie, and ought to be rated, the occupiers of such land or houses built thereon, tithes arising therefrom, mines therein, and saleable underwoods, shall be rated to this and all other parish rates within such parish and place as lies nearest to such lands ; and if on application to tlie officers of such parish or place to have them rated as aforesaid, any dispute shall arise, the justices of the peace at the next sessions after such application made, and after notice given to the officers of the several pa- rishes and places adjoining to such lands and to all others interested therein, may hear and de- termine the same on the appeal of any inter- ested, and may cause the same to be equally assessed, whose determination therein shall be final ; but this shall not determine the boundaries of any parish or place, other than for the pur- pose of rating such lands to the parochial rates as aforesaid. A man had a lease of a stall in a market town, 43 where he sold goods once a week, but lived in another parish, he shall not be charged to the repairs of the church in the market town. 2 Roll. 228. It was formerly received as law that lands ought not to be taxed for church ornaments where the occupier lived out of the parish. " For if the libel is for ornaments, it is a good plea to say he was not a parishioner there at the time the rate was made." Nelson, 175. But in Jeffrey's case, Mich. 31, 32 Eliz. in B. R. it was decided to the contrary, on the ground that landholders that live in a foreign parish are in judgment of law inhabitants and parishioners as well in the parish where they hold lands as where they reside ; and may come to the parish meet- ings and have votes there as well as others. And Bulstrode reports a case where Fleming, C. J. and Mr. Justice Williams were of the same opinion, and gave this reason, that the foreigner might come to church if he pleased. And Holt, in Woodward v. Makepeace, 1 Salk. 164. " If a man be an inhabitant as to the church, which is confessed, how can he not be an inhabitant as to the ornaments?" All the churchwardens expences are now paid out of thr 44 same rates. And Burn observes, " the prac- tice for the ease and convenience thereof seemeth now generally to go with this latter opinion." Concerning the whole matter, see also 5 Co. 67 ; 2 Brownlow, 10; 1 Bulstrode, 20; 2 Roll's Abridg. 291 ; Degge, part 1 . cap. 12 ; Godol- phin's Repert. Canon, c. 12. ss. 23, 26, 29, 34, 41 ; Comb. 132. No impropriator, rector, or vicar can be charged to the repair of the church in any parish on account of their tithes and glebes therein, or allotments under modern inclosure acts in lieu thereof, because out of them they are bound to repair the chancel, but if they have any other estate in the parish, they are chargeable for that as well as other parishioners ; and although one of them only repairs the chancel, and the other be exempt, yet if either of them do it, both are discharged from all rates to the church ; but if no composition appears for laying it on the vicar, of common right it belongs to the impropriator to do it. [Shaw, 91.] And if the glebes be out of the parish, as sometimes they are, their being glebes in this case cannot exempt from being charged to the repair of the church of that parish where they 45 lie ; for no glebes are to be excused church re- pairs but such as belong to the church which is to be repaired, not those which belong to an- other church out of the parish in which the land lies ; for in that parish no repairs of the chancel lie upon them, and therefore they are on the same footing with the other lands of the parish, and consequently must be charged equally with them to all the burdens of it. All those who are so poor as to be excused from paying to the poor's rate, by reason of their poverty, ought also to be excused from paying to the church rate for the same reason; and those who pay nothing to the church, ought not to have any vote in any affairs relating to it. But this must not be understood of the minister who hath a special duty incumbent on him in this matter, and must be responsible to the bishop for his care herein ; and therefore in every parish meeting he presides for the regulating and directing this affair ; and this equally holds whe- ther he be rector or vicar. Hilary 3 C. 1st. K. B. per Henden. The founder of the church may prescribe, that in respect of the foundation, he and his tenants 46 have been freed from the charge of repairing the church. Degge, 168. Dr. Godolphin says it is contrary to com- mon right that they who have a chapel of ease in a village should be discharged of repairing the mother church ; for it may be that the church being built with stone may not need any repara- tion within the memory of man; and yet that doth not discharge them without some special cause of discharge shewn, 153. See also Gibson, 197. And (according to Nelson, 167) though the inhabitants of some chapelries have the rite of baptism and the sacraments administered in their chapels, and have chapelwardens, they must still contribute to the repairs of the mother church, especially if they bury there ; for though some part of the parish have always repaired the chapel, yet it is still the same parish, and they are part of it, and therefore of common right ought to contribute to the repairs of the church; the chapel was built for their ease, and they are obliged to go to the mother church, but not to the chapel ; yet they may be discharged of this duty by prescription, though it is against common 47 right; but then they must shew some special cause upon the endowment itself: for it is not sufficient to allege that time out of mind they have repaired their own chapel, and by reason thereof have been discharged of the repairs of the church, because it is no direct prescription; but if they prescribe generally to be discharged without shewing for what cause (2 Roll's Ab. 290); or if they allege that time out of mind they have repaired part of the wall of the church- yard and their own likewise; or shew any modus (as in Goosey and Stanford) to pay a certain sum yearly towards the repairs of the mother church, such a prescription is good. It hath been resolved that the inhabitants of a chapelry may prescribe, that in consideration that they have time out of mind paid three shillings and fourpence to the repair of the mother church, or at their own charge repaired a certain part of the mother church, they have been freed from all other charges about the repair thereof. Degge, 169. 2 Levintz, 102. A case of a parochial cha- pelry within the parish of Aston, where on a prohibition and a trial of the custom the inha- 48 bitants of the chapelry were fixed with a pro- portion of the repairs of the mother church be- cause they buried their dead there, and on that ground only. For (says Nelson, 167) if burials were at the mother church that would be a reser- vation of the ancient right by which those of the chapelry were bound to contribute to the repairs of the mother church. If there be a chapel of ease within a parish, and some part of the parish have used time out of mind alone, without others of the parishioners, to repair the chapel of ease and therein to hear service, and to marry, and all other things, but only they bury at the mother church ; yet they shall not be discharged of the reparation of the mother church, but ought to contribute thereto : for the chapel was ordained only for their ease. 2 Roll's Abridgment, 289. (And see Hob. 66.) And if but one parochial rite (as burial) be omitted, they shall contribute to the mother church. Comber. 132. Where a chapel had parochial rites, but had been forty years out of repair, and no divine service in it for all that time, the court refused to prohibit a spiritual suit to compel contribution 49 to the repairs of the mother church, though chapelwardens had been yearly chosen. Comber. 148. But if the inhabitants of a chapelry prescribe to be discharged time out of mind of the repara- tion of the mother church, and they are sued for the reparation of the mother church ; a prohibi- tion lies upon this surmise, 2 Roll's Abr. 290. But according to Hobart (67) without payment alleged the prescription will not be good. Trinity 1st W. Ball and Cross. The inha- bitants of a chapelry within a parish were pro- secuted in the ecclesiastical court for not paying towards the repairs of the parish church ; and the case was those of the chapelry never had con- tributed, but always buried in the mother church till about Henry the Eighth's time, when the bishop was prevailed upon to consecrate for them a burial place, in consideration of which they agreed to pay towards the repair of the mother church. All which appeared upon the libel. And it was held by Holt, Chief Justice, that those of a chapelry may prescribe to be exempt from repairing the mother phurch, as where it buries and christens within itself, and has never contributed to the mother church ; for E 50 in that case it shall be intended coeval and not a later erection in ease of those of the chapelry ; but here it appears that the chapel could be only an erection in ease and favour of them of the chapelry ; for they of the chapelry buried at the mother church till Henry the Eighth's time, and then undertook to contribute to the repairs of the mother church. 1 Salk, 164, 165. Shaw, 4. But in the case of Adderbury and Bodecut, (four years after the case of Aston,) it was de- cided that the inhabitants of the chapelry of Bodecut, in the parish of Adderbury, though they buried their dead in the mother church of Adderbury, were by custom discharged of the repairs of such church. ^4,9 to resisting an illegal Rate. In case the bounds of the parish are in dis- pute in the ecclesiastical court, that is, if the party assessed aver that the land for which he is assessed lies in another parish, and not in the parish where it is assessed, if the party be con- tentious he may have a prohibition and try it at common law. Degge, 164. And if any person find himself aggrieved at 51 the inequality of any such assessment, his appeal is to the ecclesiastical judge who is to see rift-lit done. Ib. 165. If a rate is expressly made for the repair of both the church and the chancel it is illegal, and the temporal court will prohibit any proceedings to recover it. Nelson, 173. But by the custom of London it may be so made. And when the libel is for not repairing, &c. it is not sufficient for the defendant to suggest that other people have lands in the same parish which are not charged ; for if it is true, it is a good allegation against the libel in that court ; because the rate ought to be made upon the whole parish, and it is a just cause to appeal from a sentence there, but not for a prohibition. Roll's Abr. 290; 2 Roll's Rep. 262, 206. So if a suit is instituted in the ecclesiastical court for a church rate, and a custom pleaded of a certain sum paid, or of something done in lieu of the rate, and that plea is admitted, they may proceed to try that custom in the same manner as a modus ; but if the custom is denied, it will be a proper ground for a prohibition (by the Lord Chancellor Hardwicke) for defect of trial in the ecclesiastical court ; for the trying of the E 2 custom is the province of the common law. 1 Atkins, 289. In the case of the King v. the Chapelwardens of the township of Haworth, 12 East, 556. On a motion before Lord Ellenborough for a man- damus to compel them to make a rate to reim- burse the churchwardens of Bradford (the mo- ther church) for money expended, as well as for what they might expend, the rule was discharged ; for (by the court) the form of the demand was bad, and the churchwardens had no right to lay out money till they had collected it. When a rate was made on lands to repair the church ; to make a new clock and chimes ; for bread and wine at the sacrament; for clerk's fees ; for dividing the church house into several rooms for the use of the poor ; for the relief of poor prisoners in the Marshalsea, and for ex- pences at several visitations ; the court would not grant prohibition, though it was objected that this rate was made for several matters of which the spiritual court hath not any juris- diction, as to repair the church house, and for relief of poor prisoners; and likewise for chimes which are ornaments, and for which lands ought not to be rated. [As to the last, see ante.] 53 It is true it was after sentence, and an appeal to the Arches ; and in such cases a prohibition is always denied, if nothing appears in the libel itself to oust the spiritual court of jurisdiction. 2 Lutw. 1019. Until the act 53 Geo. 3d. cap. 127, and still, where the rates in litigation do not exceed 10., the remedy was only, as before mentioned, in the spiritual court, and the churchwardens in default of payment, proceeded by citation, and on the appearance of the party cited, by filing their libel according to the practice of the court; upon which the libellate alleged in due form the cause for which he refused payment, in case his objection went only to the inequality of the rate. [Nelson, 174.] But if he claimed to be altoge- ther exempted, as having no lands or other rateable property in the parish ; or if the rate in which he was charged was expressly made for an irregular and illegal purpose, these were suffi- cient grounds for a prohibition ; as was also the suggestion of a prescription triable only by the temporal courts. And Degge cites a case of a prohibition for inequality, but doubts, 168. But now, by the statute above mentioned, the recovery of church rates is in a great measure 54 taken from the spiritual courts ; and disputes in all cases where the claim for rates does not ex- ceed W. are brought within the determination of two magistrates in a summary way, who have power to levy the quantum awarded with costs. An innovation on the old method to the great furtherance of justice, and general satisfaction of the public. See post. Since the passing the act last referred to, the doctrine of prohibitions seems too remote from the subject of this work to need particular notice, and it is only in cases of great importance that it will be necessary to recur to such a remedy ; though indeed the ecclesiastical courts are still open to the churchwardens for rates of any amount if they choose to sue there. On the means of collecting a Rate. Something has been already said on the means of collecting a rate under the head of resisting an illegal rate; and in various passages in the former sheets, it has been observed that the ordinary remedy is by suit in the ecclesiastical court; and although justice was, no doubt, ob- tained in that court when the churchwardens de- cided to sue there ; and after sentence of excom- 55 munication pronounced, and the bishop's signili- cavit issued, the churchwardens found ample redress, yet the forms of it were ordinarily so tedious and expensive, that where the parties rated were of little substance and refused to pay, they commonly escaped. And amongst other objections to the ecclesiastical remedy, not the least perhaps was the opportunity it afforded for perjury; for As the spiritual court hath original jurisdic- tion of repairs of churches ; and rates, for that purpose, being an incident to repairs, they have the jurisdiction of those rates ; and when a suit is brought in that court against the defendant for a proportionable part of such a rate, he may be compelled to put in his answer upon oath whether he hath paid or not ; for the usage being for them to require oaths about payment of rates, hath likewise made it the law of the court. Shaw, 83. These evils and inconveniences were long felt without any remedy provided ; and nothing can be a greater proof of the general respect of tne nation for ancient institutions. And when at length a few years after the revolution a step was taken, interfering with the jurisdiction of 56 the spiritual court in this point, the rights of the church were invaded in favour only of the Quakers, whose resistance of tithes and church- rates on a sense of duty and principle, without a hope of evading payment, was rather cruelly punished with costs. And now by statute 53 Geo. 3d. c. 127. for the more easily and speedily recovering of church rates or chapel rates of limited amount, sect. 6, reciting that whereas by 7 and 8 Will. 3d. it is enacted, where any Quaker shall refuse to pay for or compound for his great or small tithes, or to pay any church rates, two or more of his Majesty's justices of the peace are authorized to hear and determine the same not exceeding the value of 10. ; and that whereas by 1 Geo. 1st. the said act is extended to other objects, and that it is become expedient to enlarge the said sum. It is enacted that all the provisions of the said acts shall be deemed to extend to any value not exceeding 50., provided always that one justice shall be competent to receive the original complaint, and to summon the parties to appear before two or more justices of the peace as in the said act is set forth. But the last mentioned statute does not stop 57 here, for with a view to the ease of the church- wardens in the general collection of such rates, By sect. 7, it is enacted " that if any one duly rated to a church rate or chapel rate the validity whereof has not been questioned in any eccle- siastical court shall refuse or neglect to pay the same sum at which he is so rated, it shall and may be lawful for any one justice of the peace of the same county, riding, city, liberty, or town corporate where the church or chapel is situated in respect whereof such rate shall have been made, upon the complaint of any churchwarden or churchwardens, chapelwarden or chapelwar- dens, who.ought to receive and collect the same, by warrant under the hand and seal of such justice to convene before any two or more such justices of the peace any person so refusing or neglecting to pay such rate, and to examine upon oath (which oath the said justices are hereby empowered to administer) into the merits of the said complaint, and by order under their hands and seals to direct the payment of what is due and payable in respect of such rate, so as the sum ordered and directed to be paid as aforesaid do not exceed W. over and above the reason- able costs and charges to be ascertained by such 58 justices, and upon refusal or neglect of such party to pay according to such order, it shall and may be lawful for any one of such justices by warrant under his hand and seal to levy the money thereby ordered to be paid, together with the amount of such costs and charges by dis- tress and sale of the goods of such offenders, his executors or administrators rendering only the overplus to him or her, the necessary charges of distraining being first deducted and allowed by the said justices : and any person finding him- self aggrieved by any judgment given by two or more such justices, may appeal to the next general quarter sessions to be held for the county, city, &c. wherein the church or chapel is situated in respect whereof such rate shall have been made; and the justices of the peace there present shall proceed finally to hear and determine the matter, and to reverse the said judgment if they shall see cause ; and if the judgment given by the first two or more justices be affirmed, the same shall be decreed by order of sessions with costs against the appellant to be levied by distress and sale of the goods and chattels of the said party appellant. Provided always that in case of any such appeal, no war- 59 rant of distress shall be granted until after such appeal be determined. Provided also that no- thing herein contained shall extend to alter or interfere with the jurisdiction of the ecclesias- tical courts to hear and determine causes touch- ing the validity of any church rate or chapel rate, or from proceeding to enforce the payment of any such rate if the same shall exceed the sum of 10. from the party proceeded against : provided likewise that if the validity of such rate, or the liability of the person from whom it is demanded to pay the same be disputed, and the party disputing the same give notice thereof to the justices, the justices shall forbear giving judgment thereupon, and the person or persons demanding the same may then proceed to the recovery of their demand according to due course of law as heretofore used and accustomed. Provided likewise that nothing herein contained shall affect any regulations that may have been made by authority of parliament respecting the church rates or chapel rates of any particular parishes or districts." But still the ancient remedy rests with the churchwardens as well with regard to Quakers as to other parishioners ; though, according to 60 the present feelings of men, the use of it, ex- cept iu very extraordinary cases, would be thought reprehensible. And though church- wardens ought not to disregard the spirit of the proviso, which limits the enactment to rates not exceeding 10., it is an act made professedly in their favour, and there seems no danger of pu- nishment for contempt under it, in case they are led by circumstances to prefer their old remedy. The public however are concerned, and see Blacks tone, 1, 87. 01 CHAP. III. [THE distinctions the law makes between seats in the body of the church, seats in the aisles, and seats in the chancel, are already noticed in the first chapter; where, on account of such threefold distinction, and to avoid too many divisions, something is necessarily said on rights to seats.] ON THE TITLE TO SEATS BY PRESCRIPTION ; BY FACULTY ; BY GENERAL CUSTOM ; BY PARTI- CULAR CUSTOM. Ami first) on the title to Seats by Prescription. IT is clear that a parishioner may prescribe for a seat in the aisle of his parish church which has been always used and repaired by the occupier of the house in which he resides. Degge, 173. As to seats in the body of the church, see Pym and Gorwin's case, More's Reports, '278. It was resolved by the justices in this case, that one cannot prescribe for a seat in the body 62 of the church, for that the seats there are dis- posable by the parson and churchwardens ; but for a seat in an aisle of the church, a man may prescribe, because it may be presumed that he or his ancestors who had house and land within the parish, had edified and built the said aisle ; and (so it was said) it was adjudged in the Lady Gray's case. A man may precribe, though not for a seat in the body of the church ; yet for the upper part of a seat there [a sitting;] Shaw, 565, who quotes Noy, 78; Latch, 116; Palm. 424. ^ /i And (according to Degge) prescription went "></*- afterwards for a seat in the body of the church was repaired by him that prescribed to have it, 173. And this prescription must set forth that he is seized of an ancient house, &c. as well as re- paired ; Shaw, 77. K. B. Trinity 7. James; Holt and Ellis. It was resolved that the chief seat in the chancel is the right of the parson or rector impropriate ; but it was at the same time declared that by prescription another parishioner may have it. Williams, 138; Noy, 133; Johnson, 264; Degge, 173. . 63 In all which diversities, it was still necessary a man should be a parishioner ; and, as it seems, should repair. But in both these respects there is a further diversity to be found in the books ; for, in the case of a foreigner, repairs will entitle a man to a seat in an aisle, though he lives in another parish ; and therefore where the plaintiff' sets forth that he had an ancient messuage in the parish of H. and that he and all those whose estate he had in the same house, had a seat in the aisle of the parish church of B. this is a good prescription for a seat in an aisle, because he or they might build and repair it ; though it is not a good prescrip- tion to have a seat in the nave of another parish church. Sid. 361. And to this place may be referred what is said by Degge, 173, [who cites Parson's law, 113; Hobart, 69.] The bishop has no power to dispose of the seats in any private chapel next to the church that is not maintained and repaired at the parish charge. And, with respect to repairs. In some places where the parson repairs the chancel, the vicar by prescription claims a right of a seat for his family, and of giving leave to bury there, and 64 a fee upon the burial of any corpse. Johnson, 242,243. A man may prescribe to have a seat in the chancel as belonging to an ancient messuage. Noy, 133. And see Johnson, 264. But the following from Degge, 174, seems to be at variance with all principle on this head. " The law is now settled in this case, that a man that is owner of an ancient messuage may prescribe for a seat in any part of the parish church, within which parish such messuage stands, although he have not used to repair it. " And this was resolved by all the Judges of the King's Bench, in an action on the case brought by Buxton against one Bateman, for disturbing him in a quire in the body of Yol- greave church in Derbyshire, which Buxton claimed by prescription to his house. Buxton v. Bateman, T. 4. C. 2. K. B. Rot. 463. And after affirmed in a writ of error in the Exchequer Chamber. Vide Syderfin, 88, 89, 209, mak- ment report. So that this point is- now settled by all the Judges of England !" But Espinasse seems better to understand the report, when he says, N. P. 643. " It seemed 65 in this case that the declaration ought to state repairs ; but that the want of it would be cured by a verdict." No one can claim a seat in a church by pre- scription as appendant or belonging to land ; but it must be laid as belonging to a house in respect to the inhabitancy thereof. 1 Wood's Inst. b. 1. c. 7. Nor can he claim such a seat by length of possession only, without claiming it as appurtenant to a messuage. 1 Term Rep. 428. Secondly, on the titles to Seats by Faculty. Exception being made of such pews, or sit- tings in pews, to which any parishioner, or per- haps any stranger, is entitled by prescription ; which is, in general, evidence of an ancient grant or faculty, of the chief pew in the chancel, to which the rector, impropriate or spiritual, is entitled by general custom ; and of such pews or sittings as are not appropriated by any faculty in existence, it may be laid down that the rest of the pews, in the body and aisles of the church, at least, are in the gift of the bishop. But there are limitations of the bishop's au- F m t\\ority in this respect, as after mentioned : and on the other hand, some hold, as Dr. Gibson, that the bishop's authority extends to the seats in the chancel as well as in the body of the church ; and this though formerly denied, seems now a point fully established. See the case of Jarratt and Steele in the Appendix. Where any contention is about a seat in the body of the church, upon complaint made to the ordinary he may decide the controversy, by placing that person in it whom he thinks fit ; and this power is conferred upon him by law, be- cause he who hath the general cure of souls within his diocese, is presumed to have a due regard to the qualities of the contending parties, and to give precedence to him who ought to have it. And though the seats are built and re- paired at the charge of the parish, and the church- wardens should prescribe that by reason thereof they have used to dispose of them to such per- sons as they thought fit : yet of common right the ordinary hath the disposal thereof, and of common right the parishioners ought to repair them : and such prescription shall not be allowed against his jurisdiction. 2Levintz, 241. Ray- mond, 246. 67 And upon the same reason should now any gentleman having a house in the parish, by the consent of the minister, patron, and ordinary, build a new aisle, and have a faculty from the bishop to hold the same, to the use of him and his family, to bury their dead in the said aisle, and also to sit there for the hearing of divine service, on condition constantly to repair it, this faculty would give him a good title to the said aisle. But no such title can be good either upon prescription, or any new grant by a faculty as aforesaid to a man and his heirs ; but the said aisle must always be supposed to be held in re- spect of the house, and will always go with the house to him that inhabits it. Shaw, 74. A seat may not be granted by the ordinary to a man and his heirs absolutely. For the seat does not belong to the person, but to the inha- bitant ; otherwise, if he and his heirs go away and dwell in another parish, they shall yet retain the seat, which is unreasonable, Gibson, 127 ; but such a grant would, it seems, be good for the life of the grantee if he continued an inha- bitant. A seat held under a faculty is usually, in terms, annexed to a house ; and it is of the 08 essence of the title of a seat held by prescription that it should be so. Yet the owners of rights to pews sometimes sell them, or attempt to sell, though it sufficiently appears that no title can be made against the ordinary, or against the minister and churchwardens, and it seems as be- tween the grantee of the faculty and the pur- chaser, the former might still occupy the seat, notwithstanding such sale. Vide Stevens and Woodhouse in the Appendix. Resiants only are capable of a right in pews ; therefore, if one purchase a pew, and after, leave the parish, his interest in the pew is gone : but if he ceases to be a housekeeper, and con- tinues in the parish as a lodger, and goes to church, his interest continues. Shaw, 75. And as the bishop by his faculty may grant to any parishioner any common seat in the body of the church, or (according to Gibson and the mo- dern authorities) in the chancel, or (Shaw 72) the site of a pew in an aisle, so he may grant the site of a pew in any convenient place in the body of the church. Degge, 171. " And note that all that has been said before of seats must be intended of such seats as no particular parishioner has a right to by prescrip- 69 tion ; for wheresoever any parishioner is owner of an ancient messuage, with which any seat has been used by prescription time out of mind ; there the ordinary, parson, or churchwardens have nothing to do in the disposing of such seat." Degge, 173. If a seat is built in the body of the church without the consent of the bishop, [Noy, 108,] or of the minister and churchwardens, [Degge, 172,] the churchwardens [by consent of the parson, Degge] may pull it down. And see the case of Parham v. Templar, in the Appendix, where Templar, the curate, divided a seat in the body of the church without due authority, and was enjoined to restore it. But though the freehold of the church be in the parson, yet he cannot pull down any of the seats anciently erected, or of late erected, but by license of the bishop, or by the consent of the churchwardens. Degge, 172. If a man set up a new pew or other thing in a church he may not afterwards remove them, for they thereby become church goods. Stat. 10 H. 4. " If there be room for any other seats besides the rector's, the bishop can grant faculties for 70 the building and disposing of them in the chancel as well as in the body of the church ; only if the bishop doth not interpose, then the parson may dispose of the seats in the chancel in the same manner as the churchwardens do of those in the body of the church, because of his repairing it. And if any controversy arise, then there lies an appeal to the bishop from the one, as well as from the other." Shaw, 78. But see the case of Jarratt v. Steele, in the Appendix. And, as in the case of a prescriber, so one claiming under a faculty must do the repairs. In Roll's Abridgment, 288, it is said custom may fix the power of disposing of the seats in the churchwardens ; and if they erect a new seat in the body of the church, and appoint a certain person to sit there, and afterwards the ordinary decrees that another shall have the seat, a prohi- bition lies. But the right of the ordinary in the body of the church seems clear against this au- thority, unless the party prescribe in right of his house. If a seat be annexed to a house under a faculty, it may be transferred to another with the house. 1 Term Rep. 431. 71 Thirdly, on the title to seats by General Custom. The only general custom mentioned in the books as to an exclusive right and property in seats, independent of the ordinary, is, that the principal seat in the chancel belongs to the parson, or rector irapropriate, and that of com- mon right in regard to his repairing the chancel ; as it was resolved in the Court of King's Bench, Trinity Term 7 James, in the case of Holt and Ellis. But it was declared, at the same time, that by prescription another parishioner may have it. Noy, 133 ; Johnson, 264. And here may be referred what is said in Watson, c. 39. The seats in the church are erected for the inhabitants and for their more convenient attending upon divine service; and the use of them is common to all the people that pay to the repairs thereof. But if two or more contest the possession of a particular seat, the ordinary is to decide. 72 Fourthly, on the title to Seats by Particular Custom. There remains the custom of London, Nor- wich, and certain other large cities and towns to be noticed, under which seats, and the dispo- sition of seats, have been claimed, on other prin- ciples than those of ordinary church government. And as custom is to be observed, only where there is no evidence of right against it ; so such rights as arise in principles, independent of cus- tom, cannot be affected by custom. In the city of London the churchwardens re- pairing the chancel, as well as the body of the church, do equally dispose of the seats in both. Shaw, 78. Where there is no contention and the ordinary doth, not interpose, because there is no com- plaint, then the parson and churchwardens have power to place the parishioners in seats, &c. And in some parishes the churchwardens alone have that power by custom, as in London, 76. But by custom, the churchwardens, or any particular number of parishioners, may have the ordering of the seats, as in London ; which, by v 73 the like custom, may be in other places. Watson, C. 39. But the churchwardens must shew some par- ticular reason why they are to order the seats exclusive of the ordinary : for a general allega- tion that the parishioners have used to repair and build all the seats in the church, and by reason thereof the churchwardens have used to order and dispose of the seats, is not sufficient to take away the ordinary's power in disposing and ordering the seats ; because this is no more than the parishioners are bound to do of common right, to wit, building and repairing the seats, for which they have the easement and convenience of sitting in them. Watson, 39. In country parishes where one churchwarden is chosen by the minister, and the other by the parishioners, it is not usual for the minister to interfere personally in the disposition of seats, he being supposed to exercise his privilege in the person of his own churchwarden. Howmuchsoever it may beetf the usage in any place for the churchwardens to dispose of the seats in the church, it can never amount to a prescription to exclude the bishop, because they, being officers Under him, whatever they do in 74 this kind must always be supposed to be done by an authority derived from him, either posi- tively granted, as by his faculty, or else tacitly allowed, and this must hold in London, as well as every where else, for although in that city the churchwardens take it wholly upon them to dis- pose of seats, yet no usage can give them a title to do this exclusive of the bishop, for when any controversy arises, they have no where else to go but to the bishop for a decision of it, the com- mon law never meddling with this matter, but where a seat is claimed by prescription: and therefore whatever usage the churchwardens may pretend to in any church for the disposal of the seats in it, they must be understood to do this solely by the authority of the bishop, as officers under him, not by any of their own. 12 Co. 105, 106; 3 Inst. 102; 2 Bulstr. 150; Hobart, 69. In the case of Hole v. Burnet, Consistory Reports, 1740, the party suing for a disturbance in the enjoyment of his pew which he claimed by purchase and the custom of the parish, the court decided against him. And it is perhaps a universal rule that no right can exist to dispose permanently of seats 75 in public churches but in the bishop, unless under the authority of parliament. The consi- deration of money is often part of the case in usurpations by churchwardens and by vestries, and such consideration being carried to account would rather strengthen the titles of the grantees than otherwise, but the whole power of granting is already vested elsewhere, and every deed made in derogation of the bishop's authority is abso- lutely void. By statute 6 Geo. 2. c. 19. for making a chapel in the town of Tiverton, in the county of Dean, a perpetual cure. It is enacted that the wardens of that chapel may let or sell by writing or other- wise the pews in the said chapel ; so as every such lease or sale be to an inhabitant of the parish of Tiverton, and be for a term not ex- ceeding twenty-one years : otherwise such lease or sale shall be void. The fifty new parish churches founded in London and Westminster and the suburbs, under the acts passed in the time of Queen Anne, are endowed with the tithes and ecclesiastical profits arising within the limits of the parishes thereby esta- blished ; and the law is in no way altered with respect to the pews in such churches; except 76 that in such of the existing chapels as the com- missioners should erect into parish churches, the following regulations are made by stat. 10 Anne, chap. 11. Sect. 17. This act shall not extend to prejudice or alter the property or interest of any proprietor in any of the chapels made parish churches under this act, or in any of the pews within the same, without the consent of such proprietor in writing under his hand and seal : but that they and their heirs, executors, and administrators shall hold the same in such manner as if this act had not been made. 18. Provided nevertheless, that if any of the said proprietors shall be minded to sell or dis- pose of their said properties in any of the pews within any such chapel, the same shall be sold and disposed of only to the inhabitants of the parish of which such chapel shall be so made the parish church. 4 Maule and Selwyn, 250. A church built under the above acts, but no perpetual division made as therein prescribed of the old and new parish, the rates therein mentioned are, it seems, to be joint. It is not the compiler's intention to enter upon 77 the law respecting other churches and chapels which are of modern foundation, and the repairs of which may be provided for, and regulations made as to the pews by any particular statute : to notice every statute would much increase the size of this book, and the use perhaps not much : but the churches built under the acts 58 Geo. 3. c.45; 59 Geo. 3. c. 134; 3 Geo. 4. c. 72; and 5 Geo. 4. c. 103; being too numerous and impor- tant to be passed, the substance of those acts, as far as relates to pews in the new churches, is inserted in the Appendix. 78 CHAP. IV. ON THE REMEDIES AGAINST INTRUDERS FOR THE ILLEGAL OCCUPATION OF SEATS. First, on tJie Remedies by the Ordinary. IT seems an intruder may be peaceably removed by the churchwardens. Howe v. Planner, 1 Saunders, 13. Or they may clearly present an offender in the spiritual court, which indeed is their peculiar remedy and natural duty. And the minister may also institute a suit in the spiritual court against any person who with- out his authority and the churchwardens', or the license of the bishop, may make pews, or other- wise commit trespass in the church. See in Appendix, the case of Jarratt, vicar of Wel- lington v.- Steele, lessee of the great tithes for building seats in the chancel. And the minister htis also an action at law for such an offence, but not the churchwardens, for none can bring such 79 an action but the owner of the freehold. Shaw, 69. And it was well in Jarratt's case to sue in the spiritual court, for it seems, as the offence was committed in the chancel, an action would not lie. Secondly, on the Remedies by the Parties disturbed. The party first in possession by the church- wardens appointment, may maintain a suit in the spiritual court against an intruder, though he have neither a right by faculty, nor a prescrip- tive right ; so as such intruder be not placed in the seat by the churchwardens for the time being. See the case of Pettman v. BVidger in the Appendix. And in an application to the bishop for a faculty, ceteris paribus, he would doubtless be preferred to any that might compete with him. For a disturbance in his seat, a man claiming by prescription may sue in the spiritual court ; nor will a prohibition of necessity issue, for the defendant may, if he will, admit the prescription to be tried there, as a defendant does a modus, or a pension, by prescription. 2 Salkeld, 551 ; Lord Raymond, 755. 80 But as the immediate power of the spiritual court extends only to spiritual censures, the more effectual remedy for a man claiming by prescrip- tion or faculty, is an action of trespass on the case, which may be brought against an intruder by any one shewing his title to the pew by pre- scription as appurtenant to a messuage ; or claiming under an existing faculty from the bishop. Espinasse, N. P. 643. But an action of trespass vi et armis will not lie in either case, because the plaintiff has not the exclusive possession of the pew, the pos- session of the whole church being in the parson. 1 T. R. 430. And a bill in chancery will not lie to be quieted in possession of a pew, although the plaintiff had had a decree before the ordinary for it; for the court cannot examine whether the bishop has done right, nor will his decree bind his successors. Baker v. Child, 2 Vernon, 226. The consideration of the remedies of parties dispossessed under the bishop's grant, is re- served for the next chapter. 81 In case a man sues in trespass on the case under a faculty, he ought to show himself en- titled within the rules of the ecclesiastical law : the grant may be to a man for life ; or to a man so long as he continues a parishioner ; or to him and the occupiers of the house in which he lives for the time being; or for any shorter term: and in Stocks v. Booth, 1 T. R. 428, it was held that a faculty to a man and his heirs in gross, i. e. not expressly granted to the occupiers of his house for the time being, conferred a privi- lege personal to the grantee only, in which nei- ther his representatives nor any strangers, future inhabitants of the house, could participate. And the faculty should be made on condition of the grantees repairing. And it seems that whether such a condition is expressed in the faculty or not, the right of possession under it ceases, if the possessor refuse to do the repairs. But repairs need neither be averred in the de- claration nor proved at the trial against a mere intruder. [See post.] The spiritual courts have repeatedly decreed against the validity of a faculty, if rent be re- served to the churchwardens, or there be any valuable consideration for the seat; and the G m chancellor will not interfere to establish a faculty. 2 Vernon, 226. The plaintiff* must prescribe, if he claims by prescription, that he is seized of an ancient house, and that he and all those whose estate he hath therein have time out of mind used and had a seat in the church for themselves and their fami- lies as belonging to the said house. Shaw, 77 ; Stocks v. Booth, 1 Term Reports, 428 ; Kenrick v. Taylor, 1 Wilson, 326. This prescription may be supported by an en- joyment for thirty-six years, and perhaps any time above twenty years is good presumptive evidence of a faculty, 1 T. R. 428. But where a pew was claimed as appurtenant to an ancient messuage, and it was proved that it had been so annexed for thirty years, but that it had no existence before that time, it was held this mo- dern commencement defeated the prescriptive claim. 5 T. R. 296. And possession alone for sixty years was held insufficient. 1 T. R. 428. And in these prescriptions there is not much exactness required, for if an action on the case is brought for disturbing the plaintiff, it is suffi- 83 cient for him to allege that he is seized in fee of a messuage, &c. (without saying an ancient messuage,) and that he and all those whose estate he hath in the said messuage, had (without saying time out of mind) a seat in the church, &c. Hetley, 92. Price v. Littlewood, 3 Campbell, 288. 1812. Plaintiff who claimed by prescription a pew in the gallery of Hendon church, was permitted to prove his right to the pew in an action on the case for disturbance by the parish vestry book, in which was an entry, dated Oct. 1791, which entry was signed by the churchwardens, and stated that the church had been new leaded and repaired at the costs of the parish, except the aisles over the two galleries, one of which be- longed to A. B. (under whom the plaintiff claimed) and the other to J. S. which were leaded and repaired at the charges of the said A. B. and J. S. in consideration of their using the said galleries. o 2 84 CHAP. V. ON THE REMEDIES AGAINST THE ORDINARY FOR THE ILLEGAL DISPOSITION OF SEATS. THERE lies an appeal to the court of the arch- bishop, in case the grant of the bishop is illegal. A grant of a pew is illegal, and will be re- versed on appeal, if it be made assignable : " There is one cause in this faculty which is illegal ; a permission to the parties erecting seats to sell the same." See the judgment of the court in Stevens v. Woodhouse and Buller, in the Appendix. And Sir William Scott, in Walter's case, condemned as illegal the churchwardens having set a price upon the sites of pews. Mr. Anderdon's Treatise on the Duties of Churchwardens, contains notices of several grants pronounced invalid, on principles often repeated in the course of this work. In one case (Kensington v. Fryer) the churchwardens 85 and vicar; and in another (Harford v. Jones) the vestry,, for valuable considerations, had granted pews to certain persons and their as- signs. And in both cases the court treated the grants as nugatory. But the better remedy where the ordinary dis- possesses a man having a legal title to a pew by prescription, or by faculty, is an action at law. An action of trespass on the case lies against the ordinary, as against an intruder, but with some difference in the pleadings : in an action of trespass against the ordinary, the plaintiff claim- ing by prescription must prescribe not only as before for a seat as appurtenant to a messuage, but also that he and all those whose estate he hath therein have time out of mind repaired the said seat ; and the reason why he must allege such repairs is, because the freehold being in the parson, there must be some special cause shewn for such a prescription. Shaw, 77. And the plaintiff must also prove such repairs. 1 Wilson, 326. But if the declaration do not allege repairs, the want of it would be cured by a verdict. Espinasse, N. P. 643. And if a suit for a pew be instituted in (ho 86 ecclesiastical court, the like allegations must be made, in the suggestion for a prohibition, of use and occupation of a pew annexed to a house, and of repairs. Shaw, 77. An uninterrupted possession for sixty years will not give a title, if neither a faculty nor a prescriptive right appears. Stocks v. Booth, 1 Term Reports, 428. A man claiming a pew in gross must produce his faculty, and without it after possession for sixty years if he do not claim as occupant of a certain house, he cannot recover. Ib. In the cases of Kensington v. Fryer, and Har- ford v. Jones, above referred to, the vicar and churchwardens in one case, and in the other, the vestry, had granted pews, as it seems, by deed; such grants were clearly void as invasions of the prerogative of the bishop, by whom alone all grants (as distinguished from temporary ap- pointments} must be made, not to mention the consideration paid, which is also irregular, and in every case discountenanced by the ecclesias- tical courts. The churchwardens are not (by 27 H. 8. c. 25) 87 to continue in office more than a year: they are intrusted with part of the bishop's authority ; and that is the extent of their trust : and gene- rally when they doubt in any case as to what they may legally do in their parish, they may suppose the bishop in their place ; and what they would approve as just, moderate, and be- coming in him, that they may safely do : but seeing no deputy has greater rights, as a deputy, than his principal, they ought not to do more. In the following case which lately happened within the compiler's knowledge, it is hard to say whether the churchwarden exceeded his au- thority or not. The occupier of his own freehold in a parish in Buckinghamshire, obtained the leave of the churchwardens to divide, and appropriate to the use of his family, half a public seat in the church : he expended a considerable sum in making and lining the seat, and providing basses, mats, and cushions, which, when worn out, he renewed; afterwards he sold the house and left the country, and one of the then churchwardens took pos- session of the pew and furniture as his own pri- vate right, and continues with his family to use it. 88 Perhaps he had a right to prefer himself in the disposition of the seat, (which, by the bye, was intended to be sold with, and was claimed by the purchaser of the house.) But there seems great question whether he can justify the appropriation to his own use of the goods ; Degge, 172, holds the goods unfixed may be re- moved by him who set them up, and quotes 8 H. 7. 12. And if, as others say, under stat. 10. H. 4. they become goods of the church, and may not be removed by him who found them, all the authorities agree that the 'churchwardens are but the trustees of the parishioners, if they sue and recover. Degge, 177; Shaw, 74, 81. On the other hand, it seems the churchwar- dens cannot of themselves alien the goods of the church. The churchwardens may dispose of any church goods in their possession, but not without the consent of a vestry. Nelson, 186; Shaw, 74. 81) CHAP. VI. ON CHAPELS. "Op chapels there are three sorts Free Chapels, Chapels of Ease, and Private Chapels. " As to what those chapels were that were called free chapels, I find likewise some differ- ence of opinions, for some have been of opinion that they were chapels founded in parish churches, and endowed by the founder, and made free to all people to come, and therefore called free chapels. Others [as Gibson, 210; Godolphin, 145] were of opinion that they were chapels built by the kings of this realm, or by their license, and exempted from the visitation of the ordinary. Others take them for donatives, and therefore called free chapels, because they were freely given. These free chapels, whatsoever they were, were all given to the king in the first year of Edward the Sixth, save some few that are excepted in the acts of parliament by which they were given; or such as are founded by the king or bis license since the dissolution ; for it is agreed on all hands that the king may erect a free chapel, and free it from the juris- diction of the ordinary, or may license a subject so to do. " Chapels of Ease ; some of them have paro- chial rights to christen and bury, and are there- fore called parochial chapels by way of distinc- tion from others that have no such privilege; and these differ in nothing from churches but in the want of rectories and indowments, the mother being to be served before the daughter. Those chapels of ease which are not parochial cannot bury or christen, but are only used for the ease of the parishioners wherein to hear the word of God read and preached, and to join in prayer. " Chapels have like officers for the most part as churches have, distinguished only in name, and these chapels must be consecrated by the bishop as churches are ; and the repairs must be made by assessment on the inhabitants and land- holders within the chapelry, in the same manner as for the repair of churches; [and so Gibson, 209;] and are visitable by the ordinary; and the like appeals there are to the ordinary for unequal assessment, but all this must be in- 91 tended of ancient chapels, and where this course hath been used : for if there be land given for the repair of them,, or any land or estate charged by prescription to the repair of them, then the custom must be observed. " But of new chapels of ease there may be some question whether the ordinary can compel the inhabitants to repair the same. But when a number of people have for their ease joined together, and erected a chapel, and procured the bishop to consecrate it, (which was the original manner of erecting churches,) it should seem in reason that the bishop should have the same power to compel the repair as he has to visit it. " I conceive there is no doubt but those of the chapelry, or the major part of them, may agree to make an assessment for the repair of such chapels, and agree that the collector, for default of payment, should distrain for it. And I con- ceive such by-law for a public good, made by the greater number, shall bind the rest. Refertur ad universes quod publice fit per mcyorem partem. The cure of chapels of ease in many places is to be performed by those that have the cure of souls in the parish, and in some places they are indowed with lands or tithes, and in 92 some places by voluntary contributions. And laud or tithes may be appendant to a chapel. " Whosoever by law or custom is bound to provide chaplains for any such chapel, may be compelled to do it in the ecclesiastical courts, or an action upon the case for damages lies against him at common law for not performing ; but this must not be intended of a public chapel. " The offerings made at any chapel are to be rendered to the mother church ; but this must not be intended where by custom, time out of mind, the chaplain has had them ; for there the canon will not bind; nor does the canon extend to chapels of late erection, unless they be esta- blished with a Salvo Jure Matris Ecclesiae. " If the patron of a chapel presentative, pre- sent to it by the name of a church; and the clerk by that presentment be instituted and inducted ; it hath lost the name of a chapel, and gained the name of a church : Quaere what other alte- ration is made thereby ? " Public chapels annexed to parish churches are, as hath been said, to be repaired by the parishioners as the church is, but not if any other person be bound by custom to repair them. 93 " And note that a quare impedit will lie of a chapel. " Private chapels are such as noblemen and other religious and worthy persons have, at their own private charge, built in or near their own houses for them and their families to per- form religious duties in ; these private chapels and their ornaments are maintained at the charge of those to whom they belong, who themselves provide chaplains for them with honourable pen- sions ; and these anciently were all consecrated by the bishop of the diocese, and ought still to be so, but I doubt many have been neglected of late time." Degge, 185, 6, 7, 8. These domestic chaplains are not consecrated, and are exempted from the bishop's jurisdiction. Nelson, 168. Free chapels were places of religious worship exempt from all ordinary jurisdiction, save only that the incumbents were generally instituted by the bishop, and inducted by the archdeacon of the place. Most of these chapels were built upon the manors and ancient demesnes of the crown whilst in the king's hands, for the use of himself and retinue when he came to reside there ; and when the crown parted with those 94 estates, the chapels went with them and retained their first freedom. But some lords having had free chapels in manors that do not appear to have been ancient demesne of the crown, such are thought to have been built and privileged by grants from the crown. Tanner's Notit. Monast. Pref. 28. A chapel merely of ease is that which was not allowed a font at its institution, and which is used only for the ease of the parishioners in prayers and preaching ; (sacraments and burials being received and performed at the mother church ;) and commonly the curate is removeable at the pleasure of the parochial minister: ac- cording to what Liudwood says, where the mi- nister of the mother church has the cure of them both, yet he exercises the cure there by a vicar, not perpetual but temporary, and remove- able at pleasure, though in this case Lindwood observes elsewhere, that there may be in other respects the rights of a parochial chapel by cus- tom; but where a chapel is instituted, though with parochial rights, there is usually (if not al- ways) a reservation of repairing to the mother church on a certain day or days, in order to pre- serve the subordination. Gibson, 95 The privileges of administering the sacra- ments, especially that of baptism and the office of burial, distinguish a depending chapel of ease from a separate parochial chapel. Those being* the true distinct parochial rites. And if any new oratory has acquired and enjoyed this immu- nity, then it differs not from a parish church, but (says Mr. S el den) may be styled capella paro- chialis. And till the year 1400, in all trials of the rights of particular churches, if it could be proved that any chapel had a custom for free baptism and burial, such place was adjudged to be a parocliial church. Hence at the first erec- tion of these chapels, while they were designed to continue in subjection to the mother church, express care was taken at the ordination of them that there should be no allowance of font or bells, or any thing that might be to the prejudice of the old church. And when any subordinate chapel did assume the liberty of burial, it was always judged an usurpation upon the rights of the mother church, to which the dead bodies of all inhabitants ought to be duly brought and there alone interred. And if any doubt arose whether a village were within the bounds of such a parish, no argument could more directly prove the affirmative, than evidence given that the in- habitants of that village did bury their dead in the churchyard of the said parish. Rennet's Parochial Antiq. 590, 591. When by long use and custom parochial bounds became fixed and settled, many of the parishes were still so large, that some of the remote hamlets found it very inconvenient to be at so great a distance from the church, and therefore for the relief and ease of such inha- bitants, this new method was practised of build- ing private oratories or chapels in any such re- mote hamlet in which a capellane was sometimes endowed by the lord of the manor, or some other benefactor, but generally maintained by a stipend from the parish priest, to whom all the rights and dues were entirely preserved. Ib. 587. But in order to authorize the erecting of a chapel of ease, the consent of the diocesan, the patron, and the incumbent, if the church was full, were all required. Ib. 585, 586. A chapel may prescribe for tithes against the mother church, thus in the case of Sayer and Bland, (4 Leon. 24,) when the parson libelled for tithes against an inhabitant of a hamlet where 97 there was a chapel of ease, and it was shewn on the other side, time out of mind, the said hamlet had found a clerk to do divine service in the said chapel with part of their tithes, and (what was an usual composition upon the erection of a chapel) paid a certain sum of money to the parson and his predecessors for all tithes ; the prescription was held to be good, and a prohibi- tion granted. Gibson, 209. Whenever a chapel of ease is erected, the incumbent of the mother church is entitled to nominate the minister, unless there is a special agreement to the contrary, which gives a com- pensation to the incumbent of the mother church ; a mere arbitrary agreement between patron and parson and ordinary, without such a compensa- tion is not be supported. Ambl. 532. The ancient custom of electing and nominating a capellane, was that he was either arbitrarily appointed by the vicar, or by him nominated to the rector and convent, whose approbation did admit him ; or was nominated by the inha- bitants (as founders and patrons) to the vicar, and by him presented to the ordinary : for cus- tom herein was different. Sometimes a capellane was to be presented by the patron of the church n 98 to the vicar, and by him to the archdeacon, who was then obliged to admit him ; at other times the lord of the manor presented a fit person to the appropriators, who without delay, were to give admission to the person so presented. Ken. P. A. 589. It is said by Rolle, that if the question be in the court Christian, whether a church be a parish church, or only a chapel of ease, a prohibition lies. 2 Abridgment, 291 ; e contra Shaw, p. 5. And Dr. Watson (c. 23) says, if the de- fendant in a quare impedit shall plead that the same is a chapel, and DO church, this matter shall be tried by the country and not by the bishop. But Dr. Gibson says (210) that a chapel, or no chapel, ought to be tried by the spiritual judge; for a chapel is spiritual as well as a church, and when two spiritual things are to be tried, no prohibition shall be granted ; in like manner as it goeth not when a modus is pleaded in a dispute between two spiritual persons, to wit, the rector and vicar about tithes. 2 Roll's Abr. 312; Syd. 332. But, he says, (213) if a question is depending as to the limits thereof, whether a chapel of ease or a parish church, or whether a chapel of ease or a parochial chapel, the same shall be tried as to the limits in the temporal court. As to the liability of the inhabitants of a cha- pelry to contribute to the repairs of the mother church, see chap. II, 11 - 100 . CHAP. VII. SECTIONS OP THE NEW CHURCH ACTS WHICH EXTEND TO OLD CHURCHES. 58 Geo. 3. c. 45. sect. 59. The churchwar- dens of any parish may, with the consent of the vestry or select vestry, or persons possessing the powers of vestry, and with the consent of the bishop and incumbent, borrow upon the credit of the rates of any such parish such sum or sums of money as shall be necessary for de- fraying the expense or any part of the expense of enlarging or otherwise extending the accom- modation in the then existing churches or cha- pels of such parish ; and may make rates for the payment of the interest of such money so to be borrowed, and for providing a fund of not less than the amount of the interest of the sum ad- vanced, for the repayment of the principal ; or for repaying such principal in such manner and at such times and in such proportions as shall lot be agreed upon with the persons advancing any such money ; Provided always that one half of the additional accommodation which shall be ob- tained by any such expenditure shall be allotted to uninclosed or free seats. Sect. 65. In any parish or extra parochial place in which it shall appear to the bishop of the diocese that the churches or chapels now existing, or which may be built or provided under any of the provisions of this act, do not or will not afford sufficient accommodation for the parishioners to attend divine service, and in which he shall think it expedient that additional accommodation should be provided; and that such purpose would be answered by the celebra- tion on Sundays, and on the great festivals, of a third or additional divine service being either the morning or evening service of the church as he shall direct, with a sermon, in the churches or chapels existing at the time of passing this act; or by the celebration of a third or addi- tional service as aforesaid, with a third sermon in any church or chapel built under the provi- sions of this act ; such bishop may require the incumbent of every such parish, district-parish, or extra parochial place, to nominate to him a 102 proper person to be licensed to serve as a curate in the existing church or chapel or church or chapel so be built as aforesaid, for the performance of such third service with a sermon : and such in- cumbent shall within six months after such requi- sition nominate such curate to the bishop to be licensed, and in default of such nomination, such bishop may nominate and license a proper curate for the purpose aforesaid : and may require the churchwardens of every such church or chapel to let for the said additional service such pro- portion of the pews of such church or chapel, (not being pews held by faculty or prescription,) and at such rates as he shall think sufficient to afford a competent salary to such curate : and such churchwardens are hereby empowered and required so to let the same, and to raise and levy in the manner directed by this act the rents from the persons who may take the pews; re- serving such number of sittings as free seats as to such bishop shall appear expedient, not being less than one fourth. Provided always that if in any parish, district-parish, or place, as afore- said, any number of persons shall represent to such bishop that they are willing to provide by subscription an annual sum sufficient to afibrd a 103 competent salary to a curate for the performance of such additional service with a sermon, and he shall think such mode of providing a salary for such curate more expedient than the raising of such salary by pew rents. He may require the incumbent of such church or chapel to nominate a curate to him as aforesaid, and in default, appoint a curate himself. Provided always that such curate so nominated and licensed shall be subject to all laws to which stipendiary curates are subject, except so far as relates to the amount of salary, and the mode of raising the same, which shall be regulated according to the provisions of this act. 66. In case such provision for an additional service shall be made by subscription, every person so subscribing (being a parishioner) shall have the option of any pew in such church or chapel (not being a pew held by faculty or pre- scription) for the time of such additional service and sermon in order according to the amount oi subscription, or (in case of equality of the sums subscribed) the date of his subscription; and shall continue to hold such pew so long as he shall pay such subscription and no longer. Provided also that if at any time, the whole KM amount of such subscription shall iail to produce a salary competent in the bishop's opinion for such curate, he, the bishop, may require the churchwardens to raise, by letting a proportion of the pews as aforesaid, a sum sufficient to make up the said salary ; provided always that the salary to be given to such curate for the per- formance of the said additional service with sermon shall in no case, except when raised en- tirely by subscription, exceed the sum of eighty pounds per annum. 59 Geo. 3. chap. 134. sect 14. The church- wardens of any parish, with the consent of the vestry, or persons possessing the powers of vestry, and of the bishop and incumbent, may borrow upon the credit of the church rates, or of any rates of any such parish made under act 58 G. 3. c. 45. or under this act, such money as shall be necessary for repairing any churches or chapels; and shall and may in any such case raise by rate a sum sufficient from time to time to pay the interest of the money so borrowed, and not less than 10. per cent, of the principal, until the whole of the money borrowed be repaid. 25. The majority of inhabitants of any parish 105 assembled in vestry after notice given on two successive Sundays preceding the meeting, or two thirds of the vestry assembled after ordinary notice, may order the making a rate not exceed- ing one shilling in the pound in any one year, or five shillings in the pound in the whole upon the annual value of the property in the parish, for the purpose of building or enlarging any church or chapel wholly or in part by means of rates : and every such order shall be imperative upon the churchwardens or chapelwardens of the pa- rish in which such order shall be made, who shall forthwith make and collect such rate in the same manner in all respects as a church rate. 40. When any parish shall be desirous of ex- tending- and increasing the accommodation in the parish church, and it shall be found necessary or expedient to that end to take down the exist- ing church, and to rebuild the same on the same site, or on a more convenient site ; the church- wardens of such parish may, with the consent of the vestry, or persons possessing the powers of vestry, and also of the ordinary, patron, incumbent, and lay-impropriator, if any such there be, take down such existing church and rebuild Ilir same upon the same or upon a m-\\ 106 site : and the said churchwardens are hereby empowered to borrow upon credit of the church rates of such parish, or any rates made under the act 58 Geo. 3. c. 45, or this act, such money as shall be necessary for defraying the expense, or any part of the expense of the taking down and rebuilding such church ; and to make rates for the payment of the interest of such money so to be borrowed, and for providing a fund of not less than the amount of the interest of the sum advanced for the repayment of the prin- cipal thereof, or for repaying such principal, in such manner, and at such times, and in such proportions, as shall be agreed upon with the persons advancing such money: provided always that no church shall be so taken down and re- built by means of rates upon any parish, if such proportion of dissents as is in this act specified in relation to any application to build or to en- large any church or chapel either wholly or in part by means of rates, is signified in writing in manner directed by this act : and such church when consecrated shall be to all intents and pur- poses the parish church of such parish for the celebration of divine offices, and the solemniza- tion of marriages, according to the rites and ce- 107 renionies of the church of England. Provided always, that one half of the additional accommo- dation which shall be obtained by the rebuilding such church shall be set apart for free and open sittings : and provided also that all persons en- joying any pews or sittings within such church so be taken down, in virtue of any faculty or prescription, shall have a pew or pews, sitting or sittings, as near as may be in the same situa- tion, and of like dimensions allotted and set apart for them in such new church. And that all tombstones, monuments, and monumental inscriptions in such church so to be taken down, shall be carefully preserved by the churchwardens, and when the said church shall be rebuilt, be by them set up in such new church at the charge of the parish, as near as circum- stances will admit in the situations from whence they were removed in the church so to be taken down. 3 Geo. 4. c. 72. sect. 3. The commissioners may procure, and take grants of, and require parishes to furnish, in the way mentioned in the former acts, or this act, in relation to sites for additional churches, for any land or ground which they may think necessary for the enlarging or 108 improving any church or chapel, or which may be convenient for the rebuilding any church or chapel., whether contiguous to the present site or not. 5. The commissioners may lend money for or towards building any additional church or chapel, or rebuilding any church or chapel under these acts ; or for or towards enlarging or improving any church or chapel in any parish or place ; or for purchasing or in aid of purchasing any site for any church or chapel ; or for executing the other purposes of these acts, upon payment for such loan of any interest not exceeding 5. per cent, per annum, or without interest, if under special circumstances they think fit. And such loans shall be repaid as the commissioners shall appoint, and shall be charged upon the church rates of the parishes or places to which the same shall be lent. 6. The church or chapelwardens of any parish or place in which money is to be raised under these acts may borrow on annuity. 8. The commissioners may, if lands cannot be conveniently purchased by, and conveyed to any parish or place for building or rebuilding or enlarging any church or chapel, or making or 109 , enlarging any churchyard or chapelyard or ce- metery, avail themselves of the powers of these acts and take conveyances, &c. in behalf of the inhabitants of such parish or place. 30. The commissioners may, by instrument under seal, with the consent of the ordinary and of the patron and incumbent of any parish or place in which the church or chapel shall be rebuilt under these acts, transfer the endowments of the old church or chapel to the new ; provided the inhabitants raise either by subscription or rate and pay over to the said commissioners towards the expense of rebuilding, such sum as they would have been liable to raise in such parish or place for the effectual reparation of the old church or chapel. APPENDIX. ON THE SEATS IN THE NEW CHURCHES. THE act 58 Geo. 3. c. 45. " For building and promoting the building of additional Churches in populous Parishes," after reciting that the churches and chapels then existing in the metropolis and its vicinity, and in many great and populous parishes and extra parochial places, were inadequate to the accommodation of the inhabitants : and that it was necessary such evil should be remedied, and additional churches and chapels for the celebration of divine service according to the rites of the united church of England and Ireland as by law established should be erected and maintained in such pa- rishes and places, and that a certain number of free seats should be made therein. And reciting that his Royal High- ness the Prince Regent acting in the name and on the behalf of his Majesty was desirous of aiding his subjects in the establishing additional churches in such parishes and places as might require the same. Enacts (sect 1) that the king may authorize an issue of Exchequer Bills to the amount of one million. Upon which bills (sect. 7) the Bank of England may lend any sums of money not exceeding in the whole one million. 8. His majesty may appoint commissioners for executing this act. 9. The said commissioners shall examine into the present state of the parishes and extra parochial places in the metro- polis and its vicinity, and in all other parts of England and 112 Wales, for the purpose of ascertaining the parishes and places in which additional churches or chapels are most required, and the most effectual and proper means of afford- ing such accommodation as aforesaid. 10. The commissioners may appoint a secretary and clerk, and make surveys, reports, &c. and assign reasonable salaries. 1 1 . The treasury may issue money for defraying the charges incurred in the execution of this act, of which an account shall be laid before parliament. 12. The commissioners shall draw up rules for their pro- ceedings and fix the sums to be allowed for building churches, and lay such rules before the king in council. 13. The commissioners may grant money for the building new churches in parishes where there is not accommoda- tion in the churches therein for more than one fourth of the population. 14. And whereas the sum granted by this act is inadequate to the affording grants to all the parishes and extra parochial places in want of sufficient accommodation for attendance upon such divine worship as aforesaid : and whereas many of such parishes and extra parochial places may be disposed to raise by rates within limited periods, certain proportions of the sums required to build such churches or chapels respec- tively, or well disposed persons within the same or elsewhere may be willing to raise by subscription such proportions, or such a part thereof, as together with the money to be raised by rate, will amount to such proportion ; in cases where any parish or extra parochial place shall offer to contribute by rate or subscription what the commissioners shall have fixed upon as a proper proportion, the commissioners may grant the remaining sum necessary ; and may also advance as a loan any part of the proportion to be raised by rate. 15. Contains the rules to be observed by the commis- sioners in selecting parishes for grants ; and in giving pre- ference in grants. 16. In every case in which the commissioners shall be of opinion that it will be expedient to divide any parish into two 113 or more distinct and separate parishes for all ecclesiastical purposes whatsoever, the said commissioners may, with the consent of the bishop of the diocese in which such parish is locally situated, signified under his hand and seal, apply to the patron of the church of such parish for his consent to make such division ; and such patron may signify his con- sent, under his hand and seal, and the said commissioners shall upon the consent of the said patron so signified, repre- sent the whole matter to his majesty in council, and shall state in such representation the bounds by which it is pro- posed with such consent as aforesaid to divide such parish ; together with the relative and respective proportions of glebe land, tithes, moduses, or other endowments which will by such division arise and remain within each of such respective divisions ; and also the relative proportions of the estimated amount of the value or produce of fees, oblations, offerings, o- other ecclesiastical dues or profits which may arise within each of such respective divisions ; and if thereupon his majesty in council shall think fit to order such division to be made, such order of his majesty in council shall be valid and good in law for effecting such division : provided always, that no such division of any parish into distinct parishes shall completely take effect until after the death, resignation, or other avoidance of the existing incumbent of the parish to be divided. 1 8. The new churches of divided parishes to remain cha- pels of ease during existing incumbency, and be served by a curate to be nominated by such incumbent. 20. Where it shall not be convenient to divide a populous parish or extra parochial place into several distinct parishes as aforesaid, it may by order of the king in council be divided into ecclesiastical districts ; or otherwise the commissioners may build or aid the building chapels to be served by curates appointed by the incumbent of the parish. 24. Such new parishes and new districts, when divided as aforesaid, to be for all ecclesiastical purposes separate pa- rishes. .50. Where a parish is divided into districts only as afore I 114 -.ml, and not into complete parishes, the division is not to affect the glebe, tithes, &c. but the original parish to remain as before as to all such rights. 31. Notwithstanding any such division into new parishes, or into districts, the whole parish to continue as before with respect to all poor and other parochial rates, except as to church rates, in so far as the same are regulated by the pro- visions of this act. 55. Enacts that if no site for any new church, &c. shall be provided in any parish, or extra parochial place, and duly notified to the said commissioners within six months after notice shall have been given by the said commissioners that a site would be required, the said commissioners are hereby empowered to purchase a site and charge the expense of such purchase upon the rates raised or to be raised under the provisions of this act in such parish, or extra parochial place, giving notice of the amount, and of the periods within which the repayment by instalments will be required. 56. Enacts that the church rates of the parish shall in all cases be the security for the repayment of all money ex- pended by the parish in providing any site or sites, or ad- vanced by the commissioners to any parish under the provi- sions of this act, or paid by the commissioners in cases of neglect in providing sites, and all sums of money expended or advanced under and in execution of this act in any parish are hereby charged upon such rates , and the churchwardens shall in every such case make proper and sufficient rates for repaying such advances and expences within the periods which the commissioners shall specify in that behalf. 57. Where any money shall have been expended in pur- chasing a site or sites, or advanced by the commissioners under this act for any extra parochial place in which no church rates shall be collected ; the commissioners may re- quire any justice or justices acting for the division of the county in which such extra parochial place may be, and such justice or justices shall from time to time appoint two or more proper persons to levy rates for making such payments and repayments as may be required under this act : and all 115 such persons so appointed shall have the like powers for enforcing payment of any such rates as any churchwardens have by law in that behalf; and they are hereby required to collect sufficient rates for making such payments and repay- ments as aforesaid : and all such rates shall be deemed in law church rates for the purposes of this act, and made, collected, and accounted for as such : and all acts of par- liament and provisions contained therein, and all ecclesias- tical and other laws, powers, and authorities for levying church rates shall apply for collecting such rates in any such extra parochial place when necessary under the purposes of this act. 58. Churchwardens, or persons appointed in any extra parochial place, may with the consent of the vestry, &c. borrow money on the credit of the rates so to be raised a* aforesaid, and they are hereby required in any case in which such money shall have been borrowed, to raise by rate a sum sufficient from time to time to pay the interest of the money borrowed, and one twentieth part of the principal, until the whole of the loan be paid. 60. Provides that no offer shall be made to build or to enlarge any church or chapel either wholly or in part by means of rates upon any parish, unless with the consent of the majority of the inhabitants paying poor rates ; or, where there is a select vestry, then with the consent of four-fifths of such vestry at least ; and unless with the consent of two- thirds in value of the proprietors of lands and tenements. 61. The churchwardens of the parish in which a new church or chapel shall be built may raise rates for the purpose. 63. Enacts that the commissioners may make such orders as they shall deem expedient as to the amount of rent to be reserved for each pew or seat in any such church or chapd ; and the produce of such rents shall form a fund, out of which provision shall be made for the spiritual person appointed to serve the church or chapel, and for a clerk. 64. The commissioners may assign out of pew rents a proper stipend to the minis'ter of such new church or chapel, I 2 116 with the consent of the bishop of the diocese, and salary to the clerk : and in case of disagreement as to the stipend between the commissioners and the bishop, the archbishop to settle the amount. 67. The patron and diocesan of district churches and cha- pels to be the same as those of present parishes. 68. Where a chapel shall be built wholly or in part by rate to be raised in any parish, the nomination of the mi- nister of such chapel to remain in the incumbent of the parish. 69. Principal and scholars of Brazennose to present to all churches and chapels to be built in the parish of Stepney. 70. Enacts that the repairs of all such district churches or chapels shall be made by the districts to which they re- spectively belong, by rates to be raised within the district, in like manner as repairs of churches by parishes; and every such district shall be deemed in law a separate and distinct paiish for that purpose ; and the repairs of all chapels not made district churches shall be made by the parish in which the chapel shall be built. 71. Each district of a parish to remain liable to the re- pairs of the old parish church twenty years from the conse- cration of the new church and no longer. 73. Two fit persons to be appointed to act as churchwar- dens for every church or chapel built or appropriated under this act at the usual period of appointment in every year, one by the incumbent of the church or chapel, and the other by the inhabitant householders entitled to vote, residing in the district or extra parochial place to which the church or chapel shall belong ; such two persons when elected to be admitted and sworn according to law ; and they are to col- lect the rents of seats and pews, and pay the stipends of the minister and clerk, and do all lawful acts requisite for the repairs and management of, and the observance of good order in, the said church or chapel; and continue in office until others be chosen in like manner in their stead. And they are hereby authorized, in case of nonpayment of the rents of the seats and pews in th6 said church or chapel, to 117 enter upon and sell the same, or else to sue for and recover the same by action for such rent in the name of " the churchwardens of the church or chapel of - " (de- scribing the same) as the case may require, without speci- fying the Christian or surnames of such churchwardens ; and no such action shall abate by reason of their death or going out of office. 74. The churchwardens of every parish in which any additional chapel shall be built under this act without a division thereof into separate parishes or district parishes, shall execute all such things as in case of such division the churchwardens to be appointed under this act are required to do. 75. Enacts that before the consecration of any church or chapel under this act, a pew sufficient to hold six persons at least shall be set -apart in the body or ground floor of the church or chapel, and contiguous or near to the pulpit, for the use of the minister of the church or chapel for the time being and his f.imily ; and other seats in some other conve- nient part of the church or chapel, not among the free seats, capable of holding not less than four, for the use of the minister's servants; and that pews, sittings, or benches in every such church or chapel to be marked with the words " free seats," amounting in the whole to not less than one- fifth part of the whole of the sittings in every such church or chapel which shall be built wholly or in part by rates, shall also be appropriated and set apart for the use of poor persons resorting thereto for ever : upon which pews for the minister and his family and servants, and free seats, no rent or assessment shall at any time be imposed. 76. Subscribers (being parishioners) to any chjurch or chapel built under this act shall have choice of pews at the rates fixed by the commissioners under this act in order of the amount of their subscription ; and subscribers to the same amount, in order of their subscription. 77. All the pews or seats in every such church or ch;i|u I. except the free seats, shall for ever be chargeable with tin.- \vaily nuts si-t opposiu- tin- numbers of the pews or SIM!- 118 in a schedule to be signed by the commissioners and annexed to the deed of consecration ; which rents shall be paid in the vestry room by the occupiers of the said pews or seats to the persons to be appointed churchwardens of the said church or chapel by equal half yearly payments on the Mon- day after Christmas Day, and after St. John the Baptist, between nine and four. 78. The churchwardens may, with the written consent of the incumbent, patron, and bishop, alter any such yearly rents ; and a new schedule shall then be prepared, signed by the churchwardens, incumbent, patron, and bishop, and kept with the deed of consecration. 79. In case the rent of any pew or seat or any part of such rent be unpaid three months after the same shall be- come due, arid notice in writing demanding payment shall have been given to the owner or occupier of such seat or pew, then the churchwardens of the said church or chapel may either enter upon and hold such seat or pew, or let the same to any other person or persons as they shall think proper, until the rent in arrear be paid, and all costs attend- ing the recovery thereof; or otherwise may sell the same seat or pew by public auction to the best bidder, and out of the money pay the arrears with reasonable costs, rendering the overplus if any to the owner or occupier of the seat or pew ; or the said churchwardens at their discretion may sue for the rerit in arrear by action of debt, or upon the case for the use and occupation of such seat or pew. 84 85. Proviso, that this act shall not invalidate any ecclesiastical law or constitution of the church of England, or destroy any right or power of the bishop of any diocese, or of any archdeacon, chancellor, or official; but he and they may at all times hereafter visit, institute, and exercise ecclesiastical jurisdiction in all the parishes to be erected under this act as amply as in any other parish or place within his or their respective jurisdiction. The act 59 Geo. 3. c. 134. " to amend and render more effectual an act passed in the last session of parliament for building," &c. after reciting that it was expedient some of 119 the provisions of the former act should be amended, and others enlarged, Enacts 1st. certain articles as to the Ex- chequer Bills granted by former act. 2. His Majesty may appoint commissioners to supply vacancies. 3. The commissioners shall be a body corporate by the name of " His Majesty's Commissioners for building new churches," and have a seal. 4. The commissioners may allow the whole expense of building churches if they see fit. 5. The commissioners may treat populous townships, hamlets, villages, chapelries, and other divisions, as pa- rishes. 6. The commissioners may unite parts of contiguous parishes and extra parochial places into separate districts lor ecclesiastical purposes; and make loans for building chapels for the use of such districts ; and constitute any such dis- trict a consolidated chapelry ; and the spiritual person ap- pointed under the provisions of this act to serve such chapel shall be legally presented and appointed by such person or persons, and in such manner as may be agreed by the pa- trons of the churches or chapels of such contiguous parishes and extra parochial places respectively with the approbation of the commissioners. 7. The commissioners may lend money for building before it shall be determined as to the division of the parish ; or whether such buildings when finished shall be churches or chapels. 10. The clerks and sextons of any division of a parish may recover their fees in like manner as such fees were before recoverable by the clerk or sexton of the original parish. 11. The commissioners, with consent of the vestry and of the bishop, may fix the fees of any minister, clerk, or sexton. 22. The commissioners may grant money for providing sites without requiring repayment or security, us required under the former act. 23. The churchwarden or chapeiwarden of any |uiMi <-i 120 division of any parish, or of any consolidated or district chapelry in which any rates shall be made under this act or the former act, may sue for and recover such rates by the same means as church rates are recovered. 24. Repeals the enactment in sect. 60 of former act, that no offer to build, &c. by means of rates be made without the consent of two-thirds in value of the proprietors, &c. And enacts that no such offer shall be made if one-third in value dissent. 26. The commissioners may order that the rents of the pews in any church or chapel built under the former act or this act, shall be assigned to the parish or district, and received by the churchwardens or chapelwardens there, who shall thereupon be required to pay the stipends which may be fixed under this act to the minister and clerk : provided that the parish shall not in any such case be answerable to such minister or clerk for more in each year than the rent of the pews let in the year preceding. And any surplus of pew rents after payment of such stipend and other expences shall (except as next after mentioned) be invested in government securities, in the name of trustees to be appointed by the bishop, and accumulate for building or purchasing a house (with his consent) for the residence of the minister of the church or chapel ; and after the completion of such purpose, then to the augmentation of such minister's stipend, or to the reduction of the pew rents, or the encrease of the accommodation in any such church or chapel as the bishop shall direct. 27. Proviso, that the surplus of such pew rents remaining after payment of such stipend and other expences, may by the commissioners be charged with the payment of any money advanced at interest or by way of annuity or other- wise towards building any such church or chapel, or for pur- chasing the site thereof and defraying expences relative thereto, and in keeping such church or chapel in repair ; and the residue of such pew rents (if any) shall be applied in manner before directed, or in aid of the church rate to be raised in such parish if the commissioners shall so think fit : and that such churchwardens or chapel wardens, with the consent of the commissioners, may borrow at interest or by way of annuity or otherwise money for or towards building such church or chapel, or purchasing such site, or defraying the expences relative thereto upon the credit of such pew rents, and by writing under their hands may charge such pew rents (subject to such stipend and ex- pences as aforesaid) with the payment of such money with interest, or with any such annuity or annuities as aforesaid, in such manner as such churchwardens or chapelwardens think fit. 29. The clerk in every church or chapel erected under the former act or this act shall be annually appointed by the minister. 30. For the care and management of the concerns of every new church or chapel, a select vestry shall be ap- pointed by the commissioners, with the advice of the bishop, out of the substantial inhabitants of the district or division or district chapelry or consolidated chapelry, where there shall not already be a vestry. And such select vestry shall annually elect the churchwarden or chapelwarden to be named on the part of the parish or chapelry, and shall elect new members of such vestry as vacancies arise : and proper pews shall be assigned and provided in every such church and chapel for the use of the churchwardens or chapelwar- dens thereof. 31. The churchwardens and chapelwardens of any such church or chapel, with the consent of the patron and incum- bent, and in case the pew rents shall have been assigned to the parish, then with the consent of the vestry of the parish, shall and may make such alteration in any such pew rents as the bishop shall from time to time direct. 32. The churchwardens or chapelwardens of any addi- tional church or chapel shall riot let or sell any pews or seats except to parishioners during the time such parishioners shall continue to inhabit the parish ; and every sale of any pew or seat shall be subject to such reserved rent as shall have been fixed under the provisions of the former act or 1*2 this act, and shall be by private contract ; and all pew rents under the former act and this act, shall be payable in ad- vance, viz. one year's rent shall be paid on the admission to the pew or seat, if such admission shall be given at Lady Day or Michaelmas, or if at any intermediate period, then the proportion of the half-year to Lady Day or Michaelmas as the case may be, and a half year's rent over such propor- tion ; and thereafter half-yearly payments shall be made in advance, commencing on the Lady Day or Michaelmas imme- diately following the taking of such pew ; and every such pew or seat shall be forfeited and become vacant by the dis- continuance of any such payment in advance for two follow- ing half-years. 33. The commissioners may discharge any person sub- scribing towards the building of any church or chapel, wholly, or in any part, from the payment of pew rents in the said church or chapel; for a limited time, or for life; in such proportion to the amount of their respective subscrip- tions as they the commissioners shall see fit : and may allow any such subscriber if he shall remove from the parish, to assign the remainder of such term to any other person inha- biting the parish. The act 3 Geo. 4. c. 72. " to amend and render more effectual two acts passed 58 and 59 Geo. 3. for building," &c. after reciting that it was expedient some of the provisions of the said acts should be amended, and others explained and enlarged, and that additional provisions should be made for rendering the said acts more effectual, enacts Sect. 11. The commissioners may, in case of a division of any parish, apportion any charitable gifts which may have been made to such parish among the several divisions, and also any debts before such apportionment contracted upon the credit of any church rates in such parish. 20. All chapels appropriated, built, or improved under these acts, or under any local act in cases not provided for by such local act, in aid of the churches of the parishes or places in which they shall be situated, (whether any districts of any such parishes shall have been assigned or not for 123 ecclesiastical purposes to such chapels,) shall be repaired by the respective parishes or places at large to which such cha- pels shall belong. '21. The commissioners, where any division of any parish under these acts shall be again divided, and on which any church or chapel shall be built, &c. under these acts for the use of such new division, may by deed declare all liability to any repairs of the church or chapel of the division from which such new division shall be made, shall cease from the period by such deed specified, and thereupon after such period the new division shall be liable to the repairs of its own church or chapel only, and to the repairs of the church of the original parish for the remainder of the twenty years under the recited acts. 23. The commissioners may (with the consent of the owners) transfer any rights to pews in any existing church or chapel belonging to persons residing in a division of any parish or place in which a new church or chapel shall have been built, &c. under these acts, to the church or chapel of the division in which such owners reside in order to encrease the free seats in the church or chapel from which such rights shall be transferred : and such owners shall have the same titles to the pews so assigned as in their former pews, or such right and title as shall be directed in such assignment without any faculty or other process than such assignment ; which assignment shall be registered in the registry of the diocese, and a duplicate lodged in the chest of the church or chapel in which such pews shall be assigned. 24. In every case in which rents shall have been fixed upon the pews in any church or chapel under these acts, notice shall be given for six successive weeks at the end of each year of all the pews which are vacant, or which will become vacant at the commencement of the next year, by fixing a notice in writing on the doors of the church or chapel and vestry room ; and such pews as shall not be taken at the rent respectively fixed thereon within fourteen days after the commencement of the ensuing year, shall bt- 124 let to any inhabitant of any adjoining parish or place in the church whereof there shall not be sufficient accommo- dation at the rent so fixed upon such pews respectively for any term not exceeding the end of the year ; and at the expiration of the year, and also of every succeeding year in which any such pews shall be rented by inhabitants of any adjoining parishes, such pews shall be inserted in the list of vacant pews, to be taken in preference by the inhabitants of the parish or place to which the church or chapel shall belong ; and all such pews as may not be so taken by any inhabitant of the parish or place, may again be let, and so on from year to year, to any inhabitants of any adjoining parish or place. 25. Proviso, that in case any inhabitant to whom any lease or demise of any pew, seat, or sitting in the church or chapel of the parish or place or division or district of which he shall be an inhabitant, shall be granted for any longer term than one year, shall cease to be an inhabitant of the said parish, place, division, or district, or shall discontinue his attendance at the church or chapel for the space of one year, then and in every such case his lease, term, and interest in such pew, seat, or sitting, shall at the end of the then current year of the said term cease and determine to all intents and purposes whatsoever ; and such pew, seat, or sitting, shall be again let in manner as before mentioned. The act 5 Geo. 3. c. 103. " to make further provision, and to amend and render more effectual three acts passed, &c. for building and promoting the building of additional churches," &c. Enacts, sect l.that for rendering the said acts more effectual, His Majesty may authorize a further issue of Exchequer Bills to the amount of half a million for the purposes of the said acts. 5. Whenever any twelve or more substantial householders of any parish, township, or extra parochial place, shall cer- tify in writing to the bishop of the diocese, that there is not accommodation for more than one-fourth of the inhabitants thereof for the attendance upon divine service, and that they or some of them, either by themselves or with the assistance 125 of other persons belonging to the church of England, are desirous of raising by private subscription such sum as may be necessary for building or purchasing a church or chapel, for the performance of such service, and to provide out of pew rents of such church or chapel a competent stipend for the spiritual person who may officiate therein, and for a clerk and all other expences incident to the performance of divine service, and for maintaining the said church or chapel, and the said bishop shall be satisfied of the several parti- culars contained in such application, such bishop may, if he shall think fit, signify his consent to the building or pur- chasing such church or chapel as the case may be, according to such plan and upon such site as shall be approved by him. 6. The persons proposing to build or purchase any such church or chapel, and their assigns, respectively subscribing for that purpose sums of not less than fifty pounds each, shall elect three trustees from amongst themselves for the management and general regulation of the temporal affairs of such church or chapel, and for the nomination to the bishop, for a limited period, of a spiritual person to serve the same ; and such trustees shall be called life trustees of such church or chapel, and shall continue such trustees so long as any spiritual person nominated by them under the provisions of this act shall serve such church or chapel. 7. Directs the mode of supplying vacancies in the life- trustees. 8. If the number of persons subscribing to build or pur- chase such church or chapel shall not exceed three, such person or persons shall be deemed the life trustee or life trustees of such church or chapel under the provisions of this act, and in case of the death or resignation of any such life trustee, the person nominated by him by his last will and testament, or by any instrument signed by him (being a member of the church of England) shall be a life trustee in his place. 9 and 10. In any case in which application shall be made to ihe bishop for his consent to the building or purchasiiiu 126 any church or chapel, or building to be used as n church or chapel in any parish, chapelry, township, or extra paro- chial place situate within his diocese, by any person or persons belonging to the church of England, who may be willing to subscribe one half part at the least of the money necessary for building or purchasing the same, jointly with the parishioners of such place who may be wil- ling to raise the remainder of the money by rates, or to raise and borrow such sum upon the credit of the rates of such place, and the bishop shall be satisfied of the several particulars contained in such application he may signify his consent thereunto if he shall think fit. Provided always that every such application to the bishop shall state that the church or chapel is to be appropriated to the performance of divine service according to the rites of the church of England, and shall offer to set apart such number or proportion of free seats as is required by the said recited acts in cases in which churches or chapels are built or purchased with any money advanced by the commissioners under the said recited acts, and shall also offer to provide out of the pew rents arising from the remaining part of the seats of such church or chapel a competent salary for the spiritual person who may officiate therein, and for all other expences incident to the performance of divine service, and for maintaining the said church or chapel : provided also that no pew rents shall be taken, nor any service performed in such church or chapel, whether built or purchased by subscription only, or jointly by subscription and by rates, before the same shall have been duly consecrated, and a duplicate copy of such application, with the bishop's assent to the same, shall be deposited in such church or chapel. 11. The persons or parishioners making such application to the bishop, shall in every case, at the time of making the same, give notice in writing thereof to the patron and in- cumbent of the church of the parish, chapelry, township, or extra parochial place, in which it is proposed to build or purchase any such church or chapel, in order to afford to such patron and incumbent the opportunity of laying before 127 the bishop any statement in writing relating thereto : and the bishop shall not signify his consent to such application within three calendar months from the time when he shall have received the same, with a certificate that the said notice has been given. 15. The life trustees or churchwardens respectively of any such church or chapel, and their successors, may sell and dispose of the vaults or burial places under any such church or chapel, and of vaults or burial grounds in the cemetery or yard of the church or chapel if there shall be any, and shall pay to the incumbent of the parish such dues as he would have of vaults or burial places of a like description in the church of the parish ; and shall from time to time invest the remainder of the monies thence arising in some public stocks or securities, and from time to time in like manner lay out the proceeds of such public stocks or secu- rities, or such part thereof as shall not be applied under the provisions of this act in like securities ; and shall, out of such proceeds, from time to time make good any deficiencies in the payment of the stipends of the minister or clerk, or any other payments or incidental expences to be paid from the rents of pews or seats, in case such rents should not be adequate to the payment thereof, and in the next place shall apply such produce in repairing the church or chapel : pro- vided always that if there shall be a surplus of annual in- come by reason of such funds, or if the pew rents shall be more than sufficient for the purposes to which they are made applicable by this act, then such surplus shall be applied in subsequent years to the purposes to which pew rents are applicable ; and the pew rents shall be reduced rateably and in equal proportions, or a larger number of free seats shall be opened as the bishop shall direct. 16 and 17. If a majority of the subscribers entitled to elect the trustees of such church or chapel, and the bishop, and the patron and incumbent shall consent, the commis- sioners may make such church or chapel a district church or chapel : and at the end of forty years it shall become a district church or chapel without such consent, if a division PJS of the parish or place shall have been made under the said acts, otherwise shall remain a parochial chapel. 18. The powers and provisions of the former acts for se- curing and paying salaries, &c., and recovering pew rents, and all regulations as to the proportion of free seats in churches or chapels established wholly or in part with money advanced by the commissioners, shall extend to churches or chapels established under this act. Consistory Court, 30th June, 1798. The Case of Walter v. Gunner and Drury was a proceed- ing; against the churchwardens of Teddington ; calling on them to show cause why they had not seated, or caused to be seated, the plaintiff and his family in the parish church, ac- cording to his situation and condition, he being a principal inhabitant and parishioner, and having duly applied to them to be so seated. The churchwardens admitted that the plaintiff was a prin- cipal inhabitant, and that he had applied to them ; and al- leged, that the church was so small, and the number of inha- bitants so much increased, that many persons were obliged to submit to considerable inconvenience, some in sitting with others, some in having no seats ; that many seats were held ^ by custom, attached to houses in such a manner, that, though the owners did not use them, they were occupied by their tenants ; that the churchwardens had not interfered with such customary possession; that the house which Mr. Walter occupied was built by a Jew who never applied for a seat ; that in 1796, Mr. Walter applied for a seat, and a vestry was called, at which it was determined that persons should have permission to erect pews in a gallery on payment of five pounds to the parish ; that this offer had not been accepted ; that the plaintiff refused to pay the church rates unless he was seated ; that it was then proposed that a vacant space should be inclosed, and notice was given to him that a vestry would be held for that purpose, but he did not attend ; that the churchwardens were desirous of accommodating all per- sons as well as they could without disturbing the possession of others ; that they had no right to dispossess them, but were ready to submit to any order which the court might make upon them. On the other side it was alleged, that by law and usage, all pews, except those held by faculty, or other legal title, ought to be distributed amongst actual parishioners; that K 130 many of the largest were assigned to persons not living or having lands in the parish ; that others were annexed to houses, and let out by the owners to persons not living in the parish j that it was in the power of the churchwardens, by a legal exercise of their authority, to seat the complainant ; that his house was one of the largest in the parish, and though he had applied in 1796 and the following years, nothing ef- fectual had been done. It was replied, that the pew held by Seton is reputed to be annexed to the house of Mr. Retford, and that part of his family used to sit there ; and the other, occupied by Lady Murray, was annexed to another house called Comb House, which was now a school ; and that the jjHra P ew being too small for the boys, they were allowed to occupy seats in the gallery at a certain rent ; that the churchwardens did not consider themselves to be authorized by virtue of their office to disturb the possession of these parties. Sir W. Scott. I think the process has issued very pro- perly in this case, and that this is a convenient mode of pro- ceeding, by citing the churchwardens in a civil suit to show cause, &c., as in this citation. I do not think that it was ne- cessary to allege that any particular pew was vacant, as it would be a sufficient return on the part of the churchwardens to aver that they were unable to comply with the request, on account of there being no such vacancies. If that return was made and duly established, I fear that it might be entitled to much consideration, as in the enlarged population of parishes in the vicinity of this town, it may really not be in the power of the churchwardens to make immediate additions to the fabric, or to build chapels at once for the accommodation of the inhabitants, the return in this case is not of that kind. It consisted of two parts, that notice was given of a vestry, and that an offer was made that the party might erect a pew on a condition which is not strictly legal, that he should pay the parish for it ; it is clearly the law upon this subject that a parishioner has a right to a seat in the church without such payment ; but I think the return is bad on another ground ; for although it might be sufficient if there was no pew vacant, yet if there are existing pews improperly occupied, the mere offer of a permission to erect a pew is not a good return. 131 The other part of the return is bad ulsjo, since it pleads a custom which is evidently illegal, and cannot be supported, that pews are appurtenant to certain houses, and are let In the owners to persons who are not inhabitants of the parish. All private rights in pews must be held under a faculty or by prescription, which presumes a faculty, and no faculty was ever granted to that effect, for the ordinary must have exercised his discretion to depopulate the church of its own proper in- habitants, if he could have granted such a faculty. The plea goes on to state, " that the churchwardens have not ventured to disturb such occupiers ;" to which it is answered justly, that they have not done their duty, for they ought to have prevented an occupancy of that kind. There is something stated also of a custom, that others who have not pews appurtenant pay a rent for seats which is applied in easement of the parish rate, a practice which has been constantly reprehended by the ecclesiastical court, and discouraged as often as it has been set up. There the return is, I think, insufficient ; and the party has shown that there are pews occupied by persons not living in the parish, and that a particular individual has obtained a large portico of the church, and let his own pew to a non-resident person : there is one pew appurtenant to the house of Mr. Retford, who does not live in the parish, and who covenants with his te- nant that he shall not occupy it, in order that he may let it out to others ; this is clearly illegal : if a pew is rightly ap- purtenant, the occupancy of it must pass with the house, and the individuals cannot by contract between themselves defeat the general right of the parish. It appears that the house has been built only eighty years, which is not sufficient to establish a prescriptive right, because it might be presume'! that evidence of the grant of a faculty was not extinct in thai time ; but even if there was a prescriptive right, it could not be exercised by transferring it to persons not inhabitant of the houses of the parish. Such possession cannot be maintained. There is also another instance in which the parish has given way to the partial convenience of one person who holds a house to which a pew may be appurtenant : when, however, k -2 132 he was indulged with a gallery, the parish ought to have re- quired him to exchange his own pew for that accommoda- tion ; he ought to be required to go back to his own proper pew or to give it up to the parish, as it is now used in the same improper manner by inhabitants of another parish. The Court therefore is bound to overrule the protest ; but I shall not do more, or give any costs against the church- wardens, for they have been acting under the general sense of the parish, and it is difficult for such persons to bear up against it. It is possible that the parties whose rights are as- serted may have something more to allege in defence of them, and they must not be precluded ; but I shall overrule the protest, giving the parties an opportunity to intervene. The cause came on again on the 10th of July following ; and finally, a monition issued to the churchwardens to seat Mr. Walter in Mr. Seton's pew. Walters v. Gunner and Drury, 1 Consistory Reports, 314. 133 In the case of Jarratt, vicar of Wellington, v. Steele,in the Arches Court, 27th January, 1 820, the Judge (Sir JohnNicholl) declared that no person had a right to enter the church when it was not open for public woiship, except with the permis- sion of the minister and churchwardens ; and that pews can- not be pulled down without their consent, unless by the li- cence of the ordinary. And Steele, the lessee of the great tithes, who had, in September 1818, without authority taken down and rebuilt two pews in the chancel of the parish church, and for that purpose had broken into the church, was con- demned to replace the original pews and pay costs. Phillimore's Reports 3. 1<>7- And in the case of Parham v. Templar, in the Dean and Chapter Court of Exeter, The Court decided that Templar, who was the curate of the parish, had divided a seat in the nave of the church without due authority, and he was en- joined to restore it. See the case stated, 3 Phillimore, 223, on occasion of appeal against the jurisdiction, in the Court of Arches, 8th May, 1820. 134 In the case of Stevens v. Woodhouse and Duller, Court of Arches, 25 July, 1792, on appeal from the Decanal Court of Wells as to the grant of a faculty for the erection of seats, the Judge observed, " There is one clause in the faculty which is illegal ; a permission to the parties erecting seats to sell the same : this is a practice which may have prevailed frequently, but whenever it has appeared before the Court it has been constantly discountenanced. " The cases of Kensington v. Fryer; Harford v. Jones; and Hole v. Burnet ; show that even where the order has been made to defray expences, it has always been held ille- gal. It is said, hewever, that former cases have been in- stances of old pews, but that the agreement here is for build- ing new pews. This cannot influence the court or make the act legal. It may be true, as it has been remarked in the argument, that this is frequently done, particularly in cha- pels, but they are private property. This is an old parish church; and I am of opinion, that neither the parishioners, by their consent, or the ordinary, or any power but the legis- ture, can deprive the inhabitants of a parish of their general right ; and that such acts are contrary to the law of the land." And the faculty was pronounced illegal. Cited in the Consistory Reports, 1. 318, under the Report of the Case Walter v. Gunner and Drury. 135 8tk Nov. 1811. Pettman, by his Guardian, v. Bridger. 1 Philliraore's Reports, 316 lu this case it was decided that a possessory right in a pew is sufficient to maintain a spiritual suit against a mere disturber. And the judgment herein of Sir John Nicholl throws so much light upon the law on the subject, that Mr. Anderdon (Duties of Churchwardens, p. 99.) thinks it worthy of being transcribed at length. This is a suit technically termed for perturbation of seat : it is promoted by Mr. Pettman, who sets up only a posses- sory right ; that his grandfather had the estate and pew for twenty years ; that he succeeded to it, and has been disturbed in the possession of it by Mr. Bridger. Bridger admits the fact of the dispossession, but sets up a prescriptive right to the pew. By the general law and of common right, all pews be- long to the parishioners at large for their use and accommo- dation, but the distribution of seats among them rests with the ordinary. The churchwardens are the officers of the or- dinary : they are to place the parishioners according to their rank and station, but they are subject to the control of the ordinary if any complaint should be made against them. The vestry as such has no authority whatever on the sub- ject ; the churchwardens are not bound to follow their direc- tions, at the same time the sense and opinion of the vestry ought to have weight with them ; The general right then being in the parish and ordinary, any particular rights in deroga- tion of these are slricti juris; it is the policy of the law that few of these exclusive rights should exist, because it is the ob- ject of the law that all the inhabitants should be accommo- dated, and it is for the general convenience of the parish that the occupation of pews should be altered from time to time according to circumstances. A possessory right is not good against the churchwardens and the ordinary : they may dis- place and make new arrangements, but they ought not, with- 1 3(i out due cause, to displace persons in possession ; if they do, the ordinary would reinstate them ; the possession therefore will have its weight, the ordinary would give a person in pos- session cceteris paribus the preference over a mere stranger. A possessory right is sufficient to maintain a suit against a mere disturber, the fact of possession implies either the ac- tual or the virtual authority of those having power to place. The disturber must show that he has been placed there by this authority, or must justify his disturbance by showing a paramount right ; a right paramount to the ordinary itself, namely, a faculty by which the ordinary has parted with his right ; or if there be no proof of a faculty, there must be proof of prescription and such immemorial usage as presumes the grant of a faculty. A prescriptive right must be clearly proved ; the fact must not be left equivocal, and they must be such as are not incon- sistent with the general right. In the first place, it is necessary to show that use and occupation of the seat has been from time immemorial ap- purtenant to a certain messuage, not to lands, the ordinary himself cannot grant a seat appurtenant to lands. Secondly, it must be shown that if any acts have been done by the inhabitants of such messuage, they main- tained and upheld the right ; at all events if any repairs have been required within memory, it must be proved that they have been made at the expence of the party setting up the prescriptive right, the onus and beneficium are supposed to go together ; mere occupancy does not prove the right. What might be the effect of very long occupancy, where no repairs have been necessary, I am not called upon now to say ; it is a common error to suppose, that by mere occupancy pews become annexed to particular houses ; in country parishes, the same families occupy the same pews for a long time, but I apprehend they still belong to the parish at large. If, how- ever, it is shown that the inhabitants of a particular house have repaired, that fact establishes that the burden and be- nefit have gone together, and is inconsistent with the right of the parish btill to claim the benefit, and is evidence of the 137 annexation of the pew. Thus the uniform and exclusive pos- session of the inhabitants of a particular messuage connected with the burden of maintaining and repairing the seat, is evi- dence sufficient to establish a prescriptive title. To apply these principles to the present case, Mr. Pett- man sets up no prescriptive right : his grandfather first sat there in 1789, and continued in the occupation of it till his grandson succeeded him. This would be no good title against the churchwardens and ordinary, if they thought fit to remove him. It appears that a vestry was held soon after the dis- pute between the parties in this suit, at which it was decided by a majority of ten to two votes, that Mr. Pettman was to have possession of the pew, and the churchwardens were di- rected to put a lock on it. This is strong against the state- ment that general reputation was in favour of the right of Mr. Bridger. Mr. Bridger did not bring an action to sup- port his prescriptive right, but on his own authority took off the lock and resumed possession. The vote of the vestry is of itself no authority as to the question of right : but it marks the opinion of the parish, that Mr. Pettman was entitled in opposition to any common in- truder. Mr. Bridger does not set up that Mr. Pettman is an impro per person to occupy the seat, or that the pew is necessary for his own accommodation, for he has another pew in the church sufficiently large for the occupation of himself and his family ; the parish is increasing, and pews are wanted for the use of the parishioners. Mr. Pettman very properly offered to give up this pew to the disposal of the parish : this proposal was rejected by Mr. Bridger, who stands on his paramount right ; and the question now is at issue on this right between Mr. Bridger and the parish at large as to their accommodation. Now, though these considerations cannot weigh at all supposing Mr. Bridger can make out his right, yet still they have some weight in ascertaining the burden of proof which is imposed upon the parties. Mr. Bridger pleads that two pews, the one he siU in and 138 . the one adjoining to it, which is the pew in question, have been from time immemorial annexed to his house, Eastry Court ; and I think, according to the practice of these courts, the averment is sufficient : it must be considered as including the averment that the pew had been used, occupied, and re- paired from time immemorial. The right is put in this shape : the two pews appertain to the mansion for the use of the family, their tenants and ser- vants ; the family always sat in one, the tenants and servants in the other, being the pew in question. But for the last twenty years the servants have not sat in the pew, nor in- deed have they ever sat in it; from the time of building of this pew, they have occupied a pew in another part of the church. How stands the case as to tenants ? No tenant of the house has sat in it for the last twenty years. Mr. Pettman was tenant of part of the land, but not of the house. A pre- scription for a seat, as annexed to a messuage for the use of the tenants of lands belonging to the proprietors of that mes- suage, would be a bad prescription ; it can only be good for the inhabitants of a messuage. If it could be extended to tenants of the lands, mere lands might be held by the inhabit- ants of another parish, and the pew would then be for the use of persons not dwelling in the parish, which would be con- trary to law. The pew therefore has been occupied for the last twenty years by persons who were not inhabitants of this messuage, and who, as mere tenants of land belonging to the owner of the messuage, could support no personal right ; and this fact alone would be nearly, if not quite, conclusive against the right claimed. It is, however, unnecessary for the court to decide on this point simply, for the history disclosed in the evidence must be examined ; and in examining it, the court must keep in mind that the burden of proof rests with Mr. Bridger, and that proof of mere occupancy without main- taining and repairing, is insufficient. It appears from the evidence of the oldest persons, that this pew was built near sixty years ago, previous to that time there stood on the site of the two pews one large pew and a small slip ; the mansion was then divided into two tenements with a hall common to both : the mansion and estate were held under lease by the Bargrave family from the see of Canterbury. Mr. Bargrave occupied one tenement of the mansion, Mr. Sayer the other ; the two families occupied the large pew together, the servants sat in the open slip. Now what is there to show that the large pew was annexed to the mansion ? There is mere occupancy, but no attempt to prove maintaining or repairing at that time; Some time between 1750 and 1756 an alteration was made, the large seat and slip were converted into their present form, i. e. two seats of nearly equal size : Mr. Bargrave had one seat, Mr. Sayer the other, and the maid servants were placed in a different part of the church : this was a material altera- tion, a considerable expense was incurred, and this, in truth, must be considered as the building of the present seat : has it been attempted to be proved that this was done at the ex- pense of Mr. Bargrave ; not only the presumption of law, but the strong probability of fact is, that it was done by the parish. Just before the alteration was made, a Mrs. Lawson left a sum of money to the parish to repair and beautify the church : many alterations were made, Mr. Bargrave's pew and slip were altered at the same time, and four new pews were made ; they were uniform in appearance and painted alike. Now though it is possible that Mr. Bargrave, notwith- standing these circumstances, may have done this at his own expense, yet being done at the same time and in the same manner and like the opposite pews, the probability is that it was all done by the parish. If this building was done by the parish there must be a complete end of the question, it would 'be a cession of the pew to the parish, unless some express agreement to the con- trary could be shown, there is no proof that it was done by Mr. Bargrave, on the contrary, there are several witnesses who say they believe it was done by the parish, or with Mrs. Luwson's money, there arc none who venture on a contrary 140 belief, so that the weight of evidence is against Mr. Bridget-, though the burden of proof lies on him. The pews have been since repaired, and the belief of the witnesses is, that the repairing was also done by the parish, and it is the more probable, because one or two pews, to which the occupiers had an exclusive right, were not painted. Mr. Sayer was succeeded by Mr. Reynolds, who married his daughter, and who of course continued to occupy the seat: in 1782, Mr. Reynolds gave up the house and farm and quitted the parish ; another very material circumstance then occurred, a part of the mansion was pulled down, and the two tenements were united, perhaps restored, into one. In 1784 portions of the land were let to different tenants, and among the rest to Pettman, but so far from the notion that the pew was for the use of the tenants of the lands, not one of these tenants at that time sat in it, and Pettman 's sitting in the pew neither commenced nor ended with his being such tenant. It was in 1788 or 1789 that Pettman first sat in the pew, there was then a general alteration and a new arrangement of the church, the parish was increasing in inhabitants, and many pews were altered and divided so as to accommodate a greater number of persons. Several of the witnesses state that it was left to the churchwardens, as properly it should be, to seat the inhabitants. Mr. Hadden and Mr. Pettman were the churchwardens, and now it was that for the first time Mr. Pettman was put in possession of this pew. Mr. Hadden deposes, and so do others, that he was placed there by the authority of the churchwardens as a matter of right. Mr. Bargrave suggests that it was a matter of sufferance, or as his tenant, this suggestion is not very consistent with itself, for if he was entitled as tenant, permission would not have been necessary. I have already said that as tenant of the land he could have no right, but if. Mr. Bargrave had intended to have retained his right, supposing him to have had any, surely he would have taken care to have recorded in some way that 141 this was mere sufferance that Pettman was only to sit there as long as he continued his tenant, or during his pleasure ; some written acknowledgment from the churchwardens, some entry in the parish books, some resolution of vestry would have been required. Mr. Bargrave however soon after lined and put cushions into both pews, and this is the great fact relied upon to prove repairs, and the only proof of any. I do not consider this as repairs, but as mere ornament : it proves nothing, for this reason, that it is in no degree inconsistent with the fact of the pews belonging to the parish. Lining and cushioning are not usually done by the parish, these are things which each individual does for his own convenience and comfort. The use Mr. Bargrave made of Mr. Pettman 's pew is ac- counted for, he had occasionally many visitors at his house, and when his own pew overflowed, some of them went into his neighbour's pew ; this is an usual accommodation in all churches, Mr. Pettman being his tenant, would of course admit his visitors ; Mr. Bargrave choosing, as he said, that his friends should be as well seated as himself, lined and put cushions into Pettman's pew, who being his tenant, would have no objection to this measure. But this circumstance, thus accounted for, the only one, and in opposition to all the other facts in the case, does not appear to amount to repairs, to be any act of ownership, or any proof that the burden of this pew lay on the owner of Eastry Court, and not on the parish. Pettman continued in the occupation of the pew till his death, though he ceased to be Bargrave's tenant three years before that event. It has been said that this was sufferance ; Mr. Bargrave might so consider it, he might suppose that he had the right to the pew ; but did Mr. Pettman acknowledge it as suffer- ance so as in any manner to bind himself, or to deprive the parish of this pew ? Quite the reverse. Pettman's family considered that he had the possessory right, and therefore attempted to continue the possession after his death, and the parish upon hearing the statements and the whole ques- 142 tion, decided by a majority of ten to two thrxt Pettman 's notion was right, and that Mr. Bridger was not entitled to the pew. Upon the whole I am of opinion that Mr. Bridger has not proved this seat to be legally annexed to his mansion. Considering also that this right is claimed after a dispos- session of twenty years, that it is a special right set up in derogation of the general principle and policy of the law, that the pew was not wanted for the accommodation of Mr. Bridgets family, that it was wanted by the parish, that this right was set up in opposition to the opinion of his fellow parishioners, that it was enforced by taking off the lock and placing his livery servants in the pew, that he refused to accede to any proposals of accommodation that were made to , him, but stood and insisted upon his extreme rights ; while Mr. Pettman being thus ejected has contested the right, not so much for his own benefit, or for the sake of triumph, as for the accommodation of the parish ; I think the court is bound to condemn Mr. Bridger in the costs. In doing this however the court means to throw no impu- tation on Mr. Bridger's conduct, it is probable that he was strongly impressed with the opinion that he had the exclu- sive right to the pew ; but having asserted that right, and failed to establish it, the expense must fall upon him, and not upon the party who was disturbed in his possession, and compelled to resort to the protection of the law. The court monishes Mr. Bridger to refrain in future from disturbing Mr. Pettman and his family in the possession of the pew in question, and condemns Mr. Bridger in the costs of the suit. TIM. END. LONDON : IBOTSON AND PALMER, PRINTERS, SAVOY STREET, STKVM>. BOOKS RECENTLY PUBLISHED BY JOHN HATCHARD AND SON. IRELAND in PAST TIMES ; an Historical Retrospect, Ecclesiastical and Civil, with Illustrative Notes. 2 vols. 8vo. II. 4s. boards. 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