OR ACQUIRED Nicholl in ing a pew must show either a faculty or a prescription, which will suppose PEW'S GRANTED a faculty. But mere presumption is not sufficient, without some evidence BY FACULTY, on which a faculty may reasonably be presumed. The strongest evidence BY PRESCRIPof that kind is the building and repairing time out of mind, for mere repair- TION. ing for thirty or forty years will not exclude the ordinary."... "The possession must be ancient, and going beyond memory, though not the high legal memory."... "The time of sixty years has been held not sufficient against a wrong-doer. The law does not favour claims against the ordinary, and no ground is stated here, on which such a right can be established against him." "A prescriptive right must be clearly proved; the facts must not be left equivocal, and they must be such as are not inconsistent with the general right." (1) If a person prescribe that he and his ancestors, and all they whose estate he hath, in a certain messuage, have used to sit in a certain seat in the nave of the church for time out of mind, in consideration that they have used, time out of mind, to repair the said seat, and the ordinary remove him from this seat, a prohibition lieth; for this is a good prescription, and by intendment there may be a good consideration for the commencement of this pre. scription, although the place where the seat is be the freehold of the parson. (2) But if he prescribe generally, without the consideration of repairing the seat, the ordinary may displace him. (3) A pew can only be annexed, by prescription, to a house; it cannot be to lands. Where so annexed to a house, the occupier of the house for the time being, is entitled to the use of the pew, not the owner of the estate; and a possessory right to a pew is only co-extensive in duration with actual possession, which last, if abandoned, the right itself wholly ceases and determines. (4) A pew in the aisle of a church may be prescribed for as appurtenant to a house out of the parish. (5) In Lousley v. Hayward (6) it was decided, that a pew in the body of a church may be prescribed for, as appurtenant to a house out of the parish. Chief Baron Macdonald observing, "The only question which the Court has to decide is, whether there can in law be a prescription for a person living out of the parish to have a pew in the nave of the church? There is, in the present case, an uninterrupted enjoyment; and although the origin of the right to the pew cannot be traced, it is undoubtedly ancient, notwithstanding there is nothing to show upon what circumstances it was at first assumed or grounded. And in the absence of all evidence against the right, the question is, whether, upon the mere principles of law, the Court can say, that, notwithstanding the enjoyment of the right in fact, it could never have had a legal origin? "To defeat the claim of the plaintiff it must be shown, that the creation or assumption of the right was absolutely, and of necessity, void in origine; and unless the prescription is of itself rotten and bad, from some legal vice, (1) Per Sir John Nicholl in Pettman v. Bridger, 1 Phil. 325. (2) 2 Rol. Abr. Prohibition (G), 288. pl. 3. Walter v. Gunner, 1 Consist. 314. Pettman v. Bridger, 1 Phil. 325. (3) Ibid. pl. 4. (4) Woollocombe v. Ouldridge, 3 Add. 1. Walter v. Gunner. Consideration for prescription Pews in the aisle and in the body of the church appurtenant to houses out of Macdonald in OR ACQUIRED BY PRESCRIP TION. Judgment of PEWS GRANTED there is nothing else to affect it. But as to the legal possibility or impossiBY FACULTY, bility of the thing, a very short inquiry is sufficient. It appears from Selden (1), that in early times, by the pope's licence, churches were founded or built by lords of manors, or other lay founders; and that parishes were not then reduced to the exact circuits and boundaries by which they are now known, and particularly for ecclesiastical purposes; that when churches were first built, a certain district was allotted, over which the officiating minister was to superintend. (2) This was a kind of division, not a parish, in the sense in which we now understand it. The boundaries of parishes were settled long after the foundation of churches; and those ecclesiastical districts, formerly belonging to churches at their first institution, have been since much varied, and in many cases abridged and narrowed, when new churches were built. (3) How, then, can we now say that the owners of the house or the estate, in respect of which the pew is claimed, did not build or endow the church, or some part of it; or that this house, though now not within the parish, according to its present boundaries, was not formerly within the ecclesiastical limits of the church? Very probably it was so. But without going farther, it might have been so, and that is sufficient; for we are now only upon the question, whether a person can, for a house out of the parish, prescribe for a pew in the body of the church; or whether the prescription must of necessity be bad in law. The history of churches shows the contrary. A right to a pew can only exist by faculty or prescription. The distinction between a prescription in a house out of the parish, for a pew in an aisle but not in the body of the church, is merely made a doubt or question in some of the books; but there is no case in support of it, and there is no distinction in the reason of the thing itself." But it has been subsequently held in Fuller v. Lane (4) and Byerley v. Windus (5), that a prescription for a seat in the body of the church, as appurtenant to a house out of the parish, cannot be supported. Where the prescription is interrupted, the jury are not bound to presume a faculty from long undisturbed possession. (6) RENTING OR Every pa rishioner has a right to a scat in the church without payment. 4. RENTING OR PURCHASING PEWS. Every parishioner has a right to a seat in the church without any payment, either as a purchase, or as rent for the same; and if necessary, occupiers of pews, who are not parishioners, having no prescriptive right therein, may be put out by the churchwardens to enable them to seat parishioners (7); and in Wyllie v. Mott (8), Sir John Nicholl said, "Seats in the church belong to the parish, for the use of the inhabitants, and by law cannot be sold nor let, without a special act of Parliament for the purpose." same. In Stevens v. Woodhouse (1), on appeal from the Decanal Court of Wells, as to the grant of a faculty for the erection of seats, the judge of the Court of Arches observed:-"There is one clause in the faculty which is illegal—a permission to the parties erecting seats to sell the This is a practice which may have prevailed frequently; but when ever it had appeared before the Court, it has been constantly discountenanced." (The Court then referred to the following cases: — The Churchwardens of Kensington v. Tryer (2), "in which the churchwardens and vicar, in order to pay the expenses of new pews, had assigned pews to certain persons, their heirs, executors, &c., for sums specified. The Court held this to be illegal, and that the churchwardens might seat the parishioners in those pews, as if no such order had been made." In Harford v. Jones (3), "the vestry had granted, for 10%., a pew to R. and his assigns, and appropriated it to such house as he should build. He assigned to Jones; and Jones then applied for a faculty; but the Court disallowed the claim of Jones to a pew, and ordered him to be placed in the common part of the church." In Hole v. Burnet (4), suit of perturbation, the party pleaded a purchase and a parochial custom for the sale. The Court rejected the libel, and held the custom illegal. In Astley v. Biddle (5), it appeared that Astley took a house, to which a pew had belonged forty years; the churchwardens demanded money for the use of the pew, and on refusal, they placed another person with him in the pew. The Court "admonished them not to disturb, and to desist from the practice of selling." Having stated these precedents, the Court further observed):-"These cases all show, that even where the order has been made to defray expenses, it has always been held illegal. It is said, however, that former cases had been instances of old pews, but that the agreement here is for building 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 chapels. 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 legislature, can deprive the inhabitants of a parish of their general right, and that such acts are contrary to the law of the land." The faculty was therefore pronounced illegal, and the sentence of the Court below reversed. A non-parishioner, whether extra-parochial or residing in another parish, can have no right to a pew in the body of a parish church except by prescription. (6) a And prohibition lies to restrain the Spiritual Court from proceeding in suit brought by an extra-parochial person for a pew in the body of a parish church; also where a pew is claimed by any other title than prescription; or if it is claimed by that title, and the prescription is denied by the defendant. (7) Thus in Byerley v. Windus (8) Mr. Justice Bayley observed, "The claim in question is by non-parishioners in respect of a messuage or messuages RENTING OR PURCHASING Pews. Faculties giv ing permission to parties who erect pews to sell them is illegal. Non-parishionright to pews, ers have no except by pre scription. Judgment of Mr. Justice RENTING OR PEWS. Judgment of out of the parish. It is true the claimants live in the messuages in respect of which they claim; that those messuages are in no parish, but are extraparochial, and surrounded on all sides by the parish of St. Andrew; but what right can the inhabitant of an extra-parochial place have in the body of a parish church except by prescription? He contributes to none of the expenses of the church; they are borne exclusively by the parish. He contributes nothing to the maintenance of the minister, or other officers; they are supported exclusively by the parish. And to whom does the use and the enjoyment of the body of the church belong? To the parish and its inhabitants. The ordinary, indeed, has the right of disposing of the seats; but can he dispose of them to a non-parishioner? I apprehend not. Is not his right confined solely to resident parishioners? I take it to be clear that it is. Why is a faculty for a pew to a man and his heirs bad? Because it professes to give the right, whether the man and his heirs continue resident or not. (1) Why cannot a seat be claimed either by faculty or prescription as appurtenant to land? Because it is in respect of inhabitancy that it is to be used. (2) Why, if a man quits the parish, is his right to use a seat, whatever was the nature and origin of that right, at an end? Because he has ceased to be a parishioner. (3) Why, if a seat is appurtenant to a house, cannot the owner of the fee restrain his tenant from the use of it? Because the seat is for the benefit of the house, for the inhabitant of the house, not for the benefit of the owner if he cease to inhabit it. (4) Gibson in his Codex (5), under the head of Rules of Common Law concerning the Repairing and Ordering of Seats, says, 'Of common right, the soil and freehold of the church is the parson's, the use of the body of the church and the repair of it common to the parishioners, and the disposing of the seats therein the right of the ordinary. And generally, where the parishioners repair, the ordinary shall dispose. These heads are everywhere laid down in the cases on this subject, and have never been disputed.' In the case which was cited of Pettman v. Bridger (6), Sir John Nicholl states the rule to the same effect, but he restrains the right of the ordinary to a distribution among parishioners. By the general law and of common right,' he says, 'all pews belong to the parishioners at large for their use and accommodation, but the distribution of seats among them rests with the ordinary. The churchwardens are the officers of the ordinary; they are to place the parishioners according to their rank and station, but they are subject, upon complaint, to the control of the ordinary.' In Fuller v. Lane (7), in a very able and elaborate judgment, Sir John Nicholl lays down the same doctrine. By the general law, and of common right, all the pews in a parish church are the common property of the parish; they are for the use in common of the parishioners, who are all entitled to be seated, orderly and conveniently, so as best to provide for the accommodation of all;' and after laying down this as the general rule, he states, among other positions, that no faculty is deemed, either in the spiritual court or at common law, good, to the extent of entitling any per PURCHASING Judgment of Mr. Justice Bayley in Byerley v. Windus. son who is a non-parishioner to a seat even in the body of the church.' RENTING OR Again; whenever the occupier of a pew in the body of the church, ceases to be a parishioner, his right to the pew, however founded, and how valid soever during his continuance in the parish, at once ceases and determines.' Again; Of pews annexed by prescription to certain messuages, it is often erroneously conceived that the right to the pew may be severed from the occupancy of the house: it is no such thing; it cannot be severed, it passes with the messuage, the tenant of which, for the time being, has also de jure, for the time being, the prescriptive right to the pew.' Lord Stowell lays down this last position in 1 Hagg. 319-321.; and in 1 Hagg. 194—314., Lord Stowell states that every housekeeper has a right to call upon the parish for a convenient seat; that if an inhabitant wants a pew, the churchwardens ought not to permit an occupancy by a non-inhabitant. They ought not in such a case to let to a non-inhabitant, nor permit prescriptive pews to be so let.' A distinction being thus established between parishioners and non-parishioners, can a distinction be also made among non-parishioners, between those who belong to another parish and those who do not? Upon what principle can such a distinction stand? The extra-parochials infringe equally upon the rights of the parishioners with those who belong to another parish. They are equally non-contributory to the expenses of the church. It is the fault of those under whom they claim that they have no parish. They have the advantage of being extra-parochial; they must take the disadvantages also. Upon authority, therefore, and upon principle, I am of opinion that extra-parochials cannot claim a pew in the body of a church otherwise than by prescription, if they could do so by prescription; and, consequently, that there could have been no possessory right in this case, without prescription. "It was urged, however, upon the argument, that such possession as the principal and ancients had exercised, was sufficient to sustain a suit by them against a wrong-doer, and that Byerley, the plaintiff, was in this case. to be deemed a wrong-doer; but a sufficient answer to that argument is, that Byerley personally is not charged to have given to the inn any interruption, and that it was the duty of the churchwardens, as officers of the ordinary, to secure the rights of the parishioners from the encroachment of strangers." 5. DISTRIBUTION OF PEWS. The primary authority of appointing what person shall sit in each seat, being in the ordinary or bishop (1), he is to take care to order all things appertaining to divine service, so that there be no contention in the church, and that all things be done decently, and in order to give precedence to such as ought to have it. (2) DISTRIBUTION or Pews. The ordinary has the auth:0- And the churchwardens, as his officers, arc to place the parishioners Churchwardaccording to their rank and station (3); and hence it is, that if any seat, ens to place (1) 3 Inst. 202. Ante, 902, 903. (2) Watson's Clergyman's Law, 389. 2 Rol. Abr. Prohibition (G), 288. pl. 1. (3) Tellman v. Bridger, 1 Fhil. 323. |