in its present state, a new seat, stall, pew, or sitting, or new seats, stalls, pews, or sittings, as nearly as reasonably may be corresponding in local and relative situation, and in superficial measure and dimensions with the several and respective seats, stalls, pews, or sittings, which he, she, or they are now severally and respectively so entitled in the said church, but subject to the payment, by such person or persons respectively, unto the said commissioners, or any two of them, of such sum or sums of money as the said commissioners, or any two of them, shall deem fair and reasonable, to be applied towards defraying the costs, charges, and expenses attending the aforesaid erections, alterations, and improvements, and other matters incident thereto, or which may arise in consequence thereof. And, in the next place, to allot and assign all the residue and remainder of such newly erected seats, stalls, pews, and sittings, on the ground floor of the said church, and also the seats and sittings in the two front rows in the said gallery, marked on the said plan, Nos. 1 and 2, unto and amongst such of the parishioners and inhabitants of the said parish, as for the time being shall be found destitute of seats, stalls, pews, or sittings in the said church, subject to the payment, by such person or persons respectively, unto the said commissioners, or any two of them, of such sum or sums of money as the said commissioners, or any two of them, shall deem fair and reasonable, for the purposes above mentioned, and subject to such other lawful and reasonable terms and conditions as the said commissioners, or any two of them, shall think proper to annex to such last mentioned allotments and assignments, due regard being first had, in all such cases, to the respective stations, rank in life, necessities, and general accommodation of the parishioners and inhabitants of the said parish. And, lastly, to set apart the residue of the said seats and sittings in the said intended new gallery, marked in the plan, 3, 4, 5, 6, and 7, and capable of containing 140 persons, as free and unappropriated seats and sittings to be open for the use of the poor of the said parish, and other persons resorting to the said church, without any further sum of money being paid in respect thereof. PROVIDED always that all such allotments and assignments, money payments, terms, conditions, acts and deeds, of the said commissioners, touching the premises, or in any manner relating thereto, shall be under and subject to the discretion, control, order, direction, approbation, and jurisdiction of the ordinary, in case any of the parishioners and inhabitants of the said parish should find himself, herself, or themselves, aggrieved by any of the acts, deeds, or orders of the said commissioners, touching or concerning the premises, and shall think proper to appeal or resort to such authority or jurisdiction. And further, &c.

Another Form.

to shew

Cite all &c. of the parish of in the diocese of cause &c. why a license or faculty, wholly to take away and remove, or cause to be taken away and removed, the seats, stalls, pews, forms, benches, font, and floor or pavement of and in the nave or body of the said parish church of aforesaid, (or so much thereof as may be found necessary), and in the place and stead thereof to erect and build,

or cause to be erected and built, in the said church, (with power to make use of such of the old materials as shall be worth using,) new seats, pews, forms, and benches, in a more regular and uniform manner, and a new font agreeably to the plan hereto annexed, or as near the same as conveniently may be, and also to new pave or floor the said church, or such parts thereof as shall be thought proper, in order to make the whole uniform, and for the better accommodation and convenience of the parishioners and inhabitants of the said parish, attending to hear divine service and sermons performed in the said church,— should not be granted to, being a committee appointed for that purpose at a public vestry meeting. And also to shew cause &c. why a commission should not pass the seal of court, (when the aforesaid alterations and erections shall be completed), directed to the Rev. of of in in the said county of of in the said county, of

aforesaid, the Rev.

the Rev.

same county, Esq., of in the said county, Esq., and

in the

of

- in the same county, gentlemen, authorizing and empowering them, or any four of them, to allot and assign the said new seats and pews to all the inhabitants of the said parish, according to their several rights and interests, having due regard to the particular claims, rights, and interests of the several parishioners, and the number and situation of their present stalls, seats, or sittings in the nave of the said parish church; the expenses attending the erections and alterations aforesaid, and other matters and things incident thereto, to be paid and defrayed in the following manner, that is to say, such part thereof as the said commissioners, or any four of them, shall direct to be paid in respect of seats or pews to be allotted and assigned to particular individuals, to be paid and defrayed by such persons in such shares and proportions as the said commissioners, or any four of them, shall direct, according to the number of sittings allotted to each person; and the remainder of such expenses, which the said commissioners shall direct to be paid in respect of any seats or pews to be left open or set apart for the accommodation of the poor of the said parish, to be paid and defrayed out of the parish rates of the said parish. And further, &c.

Copy of Faculty.

by Divine Providence, lord archbishop of York, primate of England and metropolitan, To our well beloved in Christ, parishioners and inhabitants of and within the parish of in the county

of- in the diocese of greeting: WHEREAS by our right as ordinary, it does and ought to belong to us, to assign, allot, and confirm convenient seats, stalls, pews, or sittings, to all and singular the parishioners and inhabitants of every parish or chapelry within our said diocese ofAnd whereas it has been made known to us, on your behalf, that there were, and now are, two certain seats or pews situate on the north side of the middle aisle of the parish church of aforesaid, and wherein you usually sit: And whereas, at your promotion, a citation hath lately issued against all and singular the parishioners and inhabitants of and within the said parish, and all others in general who have, or pretend to have, any right, title, or interest in, or unto the said

seats or pews, to appear on a certain day, hour, and place, now sometime since lapsed, to shew reasonable and lawful cause, if they had or knew any, why the partition or division of the said seats or pews should not be taken away and removed, so as to make the said seats or pews into one seat or pew, and why the said seat or pew adjoining to a seat in which usually sit on the west, or a seat adjoining the pulpit on the east, or the churchwardens' pew on the north, and opening into the middle aisle on the south, containing in length seven feet or thereabouts, and in breadth six feet or thereabouts, should not be allotted and confirmed to you, the said &c., for the use of yourselves and your families, to sit, kneel, pray, and hear divine service and sermons in: We, therefore, being willing to comply with your request, do, by these presents, grant to you our full power and authority to take away the partition or division, and do assign, allot, grant, and confirm the said seat or pew to you, the aforesaid &c., and your families, for the

uses aforesaid, so long as you shall continue to be parishioners and inhabitants of the said parish, and duly frequent the said church, pursuant to a final and interlocutory decree in this behalf interposed, all and singular persons therein interested having been first called: Saving always and reserving the right of the ordinary in the said seat, notwithstanding this our confirmation, and the right of every other person. Given at under the seal of our consistory court there, this 19th day of June, in the year of our Lord 1790.

Sim. Tyas, Proctor.

By decree of court,

Deputy Register.

of

grocer,

24th Nov. 1827, this pew was allotted to

of the same place, publican, and their families, "so long as they shall continue to be parishioners and inhabitants of the said parish, and duly frequent their parish church;" reserving for two sittings, and one sitting to "the enjoyment of which three sittings we confine to the said parties respectively, so long as they continue to be inhabitants of the said parish, and duly frequent their parish church." -Extracted by

wife of

,

proctors.

CASES.

In the year 1778 a faculty was granted to certain inhabitants of the parish of therein named, to erect, at their own expense, a gallery on the north side of the church, to "contain nine pews or seats, and which pews were appropriated to the separate use and behoof of the said (parishioners named in the faculty,) severally and respectively, and to their several and respective families from time to time inhabiting and residing within the said parish of and that each of the said nine seats may belong to, and be enjoyed by, each of the said eight several parishioners or persons, as their respective names now appear to be inserted and specified in the said several seats, marked and numbered in the plan."

In the year 1795 another faculty was granted to the parishioners for the erection, at their own expense, of a gallery on the south side of the church, and for the appropriation of the pews, (twenty in number) to the applicants "and their respective families, now residing, or hereafter to reside, inhabit, and dwell within the said parish."

Copies of each of these faculties accompany the case.

The two galleries were erected, and the pews occupied by the persons to whom they were appropriated, and in time an opinion prevailed that the pews were annexed to the houses, or otherwise the property of the persons named in the faculties, and they have been from time to time sold or let, sometimes with the messuage, and sometimes separately. The accompanying statement shews the names of the persons to whom the pews were originally appropriated, and the present occupiers of the houses they then lived in; and it will be seen that a very few of the pews are in the hands of the original proprietors or their families, and that in some cases where members of the family do reside in the parish, (as in No. 13 No. 17 pews are in the occupation of strangers.

No. 19

No 21

) the

Dr. Lushington will be pleased to advise the churchwardens,

What right or interest was vested by the faculties in the parishioners there named? Had they the power to sell or let the pews?

No. 13,

What is the legal meaning of the word "family," as used in the faculties? is it confined to a man's own household, or to whom does it extend?. Suppose the head of the family leaves the parish, and other branches (not his household) remain therein, as in the cases of No. 17, and No 21, does the right to the pew rest in those other branches? and supposing several of the family in equal degree, what is the nature of their right, and how is it to be ascertained and settled in case of dispute? What length of absence from the parish loses the right to a pew, and if the party returns to the parish, does his right revive?

If the pews could not be let or sold, and the title to them is lost by non-residence, how and by whom are the pews thus vacated to be disposed of, and the present occupiers dispossessed?

And what right or interest in the pews will be conferred upon the parties to whom they may be appropriated, and how far will such appropriation be liable to be altered or revoked, and upon what ground?

And, generally what course ought the churchwardens to take under the circumstances?

Answer.

The parishioners had no power to let or sell their pews. In an ancient parish church or chapel no such power can exist by faculty or otherwise.

The parishioners, to whom the faculty was granted, took an exclusive right of occupation, so long as they remained parishioners. The construction which, in my opinion, a court would put on

the word "family" in these faculties, is, that those who succeeded to the parishioners, named as children, grandchildren, nephews, and nieces, residing in the parish, would be allowed to retain the right of sitting. I say "succeeded," because if there was no widow or descendant who, as it were, took the place of the deceased parishioner, the faculty would be at an end. Supposing the head of a family to leave the parish, collateral branches, not of his household, would have no claim to their seats.

Any quitting of the parish without retaining a residence therein, and having acquired a residence elsewhere, would have the effect of vacating the faculty, as relates to that individual and his family, and such right could not revive.

The pews, when so vacated, revert to the parish, and are at the disposal of the churchwardens, subject to the revision and control of the ordinary. The churchwardens have a right to require the persons occupying them to give up possession, and if they refuse so to do, the ecclesiastical court, upon application of the churchwardens, will compel them; but if they are individuals who have had long possession, and who are fit persons to be placed in the pews, from their condition, and the number of their families, the churchwardens ought not to disturb them.

Persons placed in these pews by the authority of the churchwardens, have a right of occupation only, and the churchwardens, upon good grounds, may remove these and put others in their places. By good grounds I mean non-attendance at church, diminution of the number of family, all such circumstances as render a new allotment of seats convenient for the better accommodation of the parishioners at large.

If there be a want of church room in the parish, it is the duty of the churchwardens to make the best arrangement, by displacing those who have possession of these seats without legal title, and who, with reference to the state of the parish, are not persons who could or ought to be so seated, if the churchwardens exercised a fair discretion. If there be any resistance, the churchwardens should cite those resisting to shew cause why they should not be removed.

STEPHEN LUSHINGTON.

of

Locking Pew up, &c.

in the county of Esq. is owner of a mansion house in the parish of in the which he uses as an occasional residence. As owner of this mansion house he claims a right to two pews in the parish church of one for himself the other for his servants; both these pews are in the body of the church; the one claimed for his servants being generally filled by them; the other, a double pew, being empty, at least never visited by or any of his family, they being at on the Sunday. As this pew is near to the pulpit, its situation is most eligible, and the officiating curate and churchwardens are anxious to have it occupied, but are unable to carry