JUDGMENT.-Sir John Nicholl,-This is a question respecting the appro-priation, by faculty, of a certain pew, in the parish church of Lingfield, in the diocese of Winchester, and county of Surrey, to Thomas Lane, the respondent in this Court. Mr. Lane originally applied for this faculty to the commissary of Surrey, within the limits of whose jurisdiction Lingfield is situate. Accordingly, a citation issued from the commissary of Surrey's Court, in June, 1821, calling upon the minister, churchwardens, and parishioners, of the said parish of Lingfield in special, and all others having or pretending to have any right, title, or interest in the premises, in general, to appear and shew cause, why a license or faculty should not issue for confirming, and appropriating the use of, the said pew, to Mr. Lane and his family, so long as he and they should continue parishioners and inhabitants of Lingfield-with the usual intimation.

An appearance was given to this citation, as well by the minister and churchwardens, as by a Mr. Kelsey, a parishioner of Lingfield, both as opposing the grant: and two several allegations were filed, nominally, on the part of both, but, really, on the part of Kelsey only: it being the purport of those allegations to set up an exclusive right to the pew sought to be appropriated, in Kelsey, as appurtenant to a mansion in the parish, called Batnors, which he, Kelsey, had then recently purchased. In point of fact, the minister and churchwardens took no step in the cause, during its pendency in the Court below, beyond that of a mere appearance to the citation; and which step they seem to have taken only as conceiving, somewhat erroneously indeed, that they were bound to appear to the citation. Kelsey's second allegation, I should say, was responsive to a plea filed, by Lane, in answer to the first; in which, not merely Kelsey's asserted prescriptive right to the pew was denied, but in which the pew was claimed as already appertaining to Lane, in virtue of his connexion with the former proprietors of Bat nors, even though no faculty should issue, as prayed. The question, so far then, was a question

of right between Lane and Kelsey; the minister and churchwardens neither interfering (except as already stated), nor being called upon to interfere. From the rejection, in part, of Kelsey's second allegation by the Court below, an appeal, as from a grievance, was prosecuted to this Court; which sustained the judgment of the Court below, but retained the principal cause, at the prayer of both parties. But the question here, in substance, is quite another question to that which was depending in the Court below this Court having disposed, at once, of any legal title to the pew set up on either side, in pronouncing its judgment upon the merits of the appeal. For it clearly appeared to this Court, at the hearing of the appeal, that, for reasons presently to be stated, neither of these parties had, though both were asserting it, any legal right whatever to the pew in dispute. The question here then became, and still is, not any question of right; it is merely whether the Court, in the exercise of a sound discretion, shall, or shall not, proceed to appropriate this pew, by its license or faculty, ex gratia, to the respondent, upon the grounds stated in, and pursuant to the tenor of, the original citation. From the instant of the question assuming this shape, namely, from the hearing of the appeal, it became the duty of the minister and churchwardens (Kelsey withdrawing from the suit), to lay before the Court the facts necessary to guide its discretion upon such a question. This they have done, through the medium of two allegations (the second, again, responsive to a plea filed by Lane, in answer to the first); and it now becomes the duty of the Court to state whether, upon a review of all the facts and circumstances brought to its notice in the evidence taken upon these allegations, this is, or is not, an application on the part of Mr. Lane, proper to be acceded to.

It appears, then, by this evidence, that Mr. Antony Faringdon, in the occupation, at that time, of a house and estate in the parish of Lingfield, called Butnors, of which he was also the proprietor, somewhere about the year 1709, made certain presents to

the church; in return for which, the parish conceded to him, and his family, the exclusive use, and possession, of a certain pew in the church, being the identical pew which is the subject of the present proceeding. This is verified, in part, by the following order of vestry, made in the year 1709, extracted from the parish books under that year.

"Memorandum-In the year 1709, when the parish church of Lingfield, in the county of Surry, was new beautified, and a great many new pews added, it was agreed between the then churchwardens, parishioners, and Antony Faringdon, Esq. for, and in consideration, that the said Antony Faringdon, Esq. presented an altar cloth, and Mrs. Elizabeth Faringdon, wife of the said Antony Faringdon, presented a silver salver, for the use of the communion; that, therefore, the said Antony Faringdon, Esq. should have, and hold, for his own use, and the use of his family, a certain seat, or pew, adjoining the pulpit stairs."

Batnors continued in the possession of the Faringdon family from 1709 to 1820; when a Mr. James Faringdon, its then proprietor, and the great grandson of Mr. Antony Faringdon, the first grantee of the pew, if he may

be so called, sold the estate to Mr. Kelsey. Such was the origin of Mr. Kelsey's supposed claim. Now to

that of Mr. Lane. Mr. James Faringdon, it seems, has two sistersthe one, unmarried; the other, the wife of Mr. Lane, who, I should say, is an attorney, in London. Up to 1820, the Faringdons are adınitted to have had the exclusive use of the pew; in which, from the time of his marriage, in 1807, Mr. Lane, of course, sat with his wife, occasionally, as a visitor at Batnors; but, I presume, as a visitor only. In 1816, indeed, some repairs were done to the pew, apparently at the expense of Mr. Lane: but he, Lane, at that time, was the actual mortgagee, and was in treaty for the purchase of Batnors.

Upon the sale of Batnors to Kelsey, in 1820, the question as to the (sup

VOL. XVI. NO. IX.

posed) ownership of this pew, to. which I have already adverted, 'immediately arose. Kelsey claimed it, as an appurtenant to the mansion; obviously without any legal foundationas the facts stated, the order of vestry, &c., are conclusive against any annexation of this pew to Batnors, by prescription; a title, the only legal foundation of which is immemorial usage. On the other hand, Mr. James Faringdon maintained, upon equally untenable grounds, that the pew was still, absolutely, and exclusively, his— claiming it as the immediate descendant and representative of Mr. Antony Faringdon, the first donee; in which capacity, and not as the mere owner of Batnors, he insisted that the right had, all along, vested in him. Accordingly, he both claimed to occupy the pew, exclusively, during his continuance, for about nine months, in the parish, after leaving Batnors; and, upon finally quitting it, affected to convey, or assign, his interest in the pew to his brother-in-law, Mr. Lane; he, Lane, having purchased twelve or fifteen acres in the parish, upon which he had began to build a house at that time, which has since been finished, and which he now inhabits. Such was the origin of Mr. Lane's asserted title, persisted in (like that of Kelsey), up to the hearing of the appeal: as, also, indeed, that the pew was his, in right of his wife, in virtue of her descent from Mr. Antony Faringdon, independent of any conveyance, or assignment, from his brother-in-law, Mr. James Faringdon; for this also was set up, in the allegation filed on his part, in the commissary of Surrey's Court. I need scarcely say that, upon this shewing, Lane had no right to the pew any more than Kelsey. The last person who had a vested right to the pew, of any description, was Mr. James Faringdon: but even his right was a mere possessory right; as such it was liable to defeazance by the ordinary, and by the churchwardens, as officers of ordinary, even during his continuance in the parish: it ceased and determined, ipso facto, upon his ceasing to be a parishioner; when the pew reverted to the parish at large, and became as liable as any other

4 E

pew in the church to the disposal of the ordinary, and of the churchwardens again, in the first instance; still as officers of the ordinary. However, Mr. Lane, and Mr. Kelsey, mutually, assert their right to the pew, from the time of Mr. James Faringdon quitting the parish, in January, 1821; but without any legal step taken, till the month of June in that year-when Mr. Lane applies to the Ordinary (the commissary of Surrey) for a faculty, appropriating to him (or rather confirmatory to his alleged title to) the pew in question. The subsequent proceedings, both in the Court below, and in this Court, and the true state of the question here, have already been stated. It only remains to add, that Mr. Lane still insists that the faculty prayed should issue, ex gratia, though he no longer claims it, ex debito justitia, as, partly at least, in the first instance; submitting, also, that it may issue, as prayed, without any prejudice to the parish. The minister and churchwardens deny this; maintaining, that a grant of the faculty prayed (of the validity of Mr. Lane's pretensions to which they leave the Court to dispose) would be manifestly inconvenient- -as with reference to the increasing population of Lingfield, and even to the present want of accommodation for those who are authorized, and disposed, to attend divine service at its parish church. Such have been the several proceedings up to the present time-such are the cases severally undertaken to be made and such is the whole question of which the Court has now, finally, to dispose.

The general law, with respect to pows and sittings in churches, is little understood; erroneous notions on this subject are current, at least, in many parts of the country, and have led to much practical inconvenience. It is necessary that the Court should briefly advert to these topics; in order to dispose, intelligibly to the parties, of the question at issue.

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 en

titled to be seated, orderly, and conveniently, so as best to provide for the accommodation of all. The distribu-" tion of seats rests with the churchwardens, as the officers, and subject to the control of the ordinary. Neither the minister, nor the vestry, have any right whatever to interfere with the churchwardens, in seating and arranging the parishioners, as often erroneously supposed: at the same time, the advice of the minister, and even sometimes the opinions and wishes of the vestry, may be fitly invoked by the churchwardens; and to a certain extent, may be reasonably deferred to, in this matter. The general duty of the churchwardens is to look to the general accommodation of the parish, consulting as far as may be, that of all its inhabitants. The parishioners, indeed, have a claim to be seated, according to their rank and station; but the churchwardens are not, in providing for this, to overlook the claims of all the parishioners to be seated, if sittings can be afforded them. Accordingly, they are bound, in particular, not to accommodate the higher classes, beyond their real wants, to the exclusion of their poorer neighbours; who are equally entitled to accommodation with the rest, though they are not entitled to equal accommodation; supposing the seats to be not all equally convenient.

Such, then, are the general duties of churchwardens, in seating and arranging the parishioners in their several parish churches. But the actual exercise of their office, in this particular, is too frequently interfered with by faculties, appropriating certain pews to certain individuals, in different forms, and with different limitations; and by the prescriptive rights to pews of which these faculties have been the occasion. Faculties of this description have, certainly, been granted, in former times, with too great facility; and, by no means, with due consideration and foresight. The appropriation has, sometimes, been to a man and his family, 66 so long as they continue inhabitants of a certain house in the parish." The more modern form is, to a man and his family, "so long as they continue inhabitants

of the parish," generally. The first of these is, perhaps, the least exceptionable form. It is unlikely that a family continuing in the occupation of the same house in the parish, shall be in circumstances to render its occupation of the same pew in the church, very objectionable. The objection which applies to the other class of faculties is, that they often entitle parishioners to the exclusive occupancy of pews, of which they, themselves, are no longer in circumstances to be suitable occupants at all, whatever their ancestors might have been. A third sort of faculty, not unusual after churches had been new pewed, either wholly or in part, appears to have been, a faculty for the appropriation of certain pews to certain messuages, or farm houses; the probable origin (the faculties themselves being lost) of most of those prescriptive rights to particular pews, recognized, as such, at common law-the parties claiming which must shew the annexation of the pews to the messuages, time out of mind; and the reparation, from time to time, of the particular pews, by the tenants of such houses or messuages, in order to make out their prescriptive titles. Some instances there are, too, of faculties at large; that is, appropriating pews to persons, and their families, without any condition annexed of residence in the parish. But such faculties are, so far at least, merely void, that no faculty is deemed, either here, or at common law, good, to the extent of entitling any person who is a non-parishioner to a seat even in the body of the church. As to an aisle, or chancel, that, indeed, may belong to a non-parishioner; for the case of an aisle, or chancel, depends upon, and is governed by, other considerations. But whenever the occupant of a pew in the body of the church ceases to be a parishioner, his right to the pew, howsoever founded, and how valid soever during his continuance in the parish, at once ceases, and determines; though the contrary is very often supposed; as, for instance, that he may sell, or assign it, or let it to rent, as part and parcel of his property in the parish. So, 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 messuage: 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. The result, upon the whole, however, of these faculties, is, that in many churches the parishioners at large are deprived, in a great degree, of suitable accommodation, by means of exclusive rights to pews, either actually vested in particular families, by faculty, or prescription, or, at least, and which is the same thing as to any practical result, supposed to be so vested. I add this last, because, in very many instances, these exclusive rights are merely suppositious; and would turn out, upon investigation, to be no rights at all. In this very case, for instance, there are two claims, as of right, set up to this identical pew, neither of which, it now seems, is legally valid; I mean Kelsey's asserted prescriptive right, and that of Mr. Lane, derived through the Faringdons; whose right itself was a mere possessory right, that actually ceased and determined upon Mr. James Faringdon ceasing to be a parishioner, in

1821.

With this experience of the mischief that has resulted from a too lavish grant of these faculties in former times, it is the duty of the ordinary to prevent its recurrence by proceeding in this whole matter with the utmost prudence and circumspection. It is especially thus incumbent upon every ordinary looking to the timeswith which he is bound to keep pace, in all matters appertaining to his jurisdiction, so far as the same is compatible with his positive duties. Faculties of this sort might issue, a century or two ago, without much, or without any, impropriety; the issue of which, at the present day, would be in the highest degree improper. The population of the country, throughout, has immensely increased of late, and is still increasing. Dissent from the Church, too, especially among the lower classes, has also increased

and partly, no doubt, from the lower classes being indifferently accommo→ dated with church room, and even being precluded, in many instances, from attending divine worship in their parish churches at all. It is to remedy this want of church room, which is much felt generally, that parliament has granted the vast sum of a million and a half, expressly for building new churches. By aid of this parliamentary fund, ninety-eight churches have already been built-accommodation has already been provided for 150,000 persons and the present applicants for similar accommodation, by means of similar aid, are probably as many more. Large funds have also been raised, in the way of voluntary contribution, by a Society for Enlarging Churches: 370 parishes have been assisted, accordingly, at an expense of 80,000l.; and 110,000 additional sittings in churches have actually been provided. The funds, too, of that Society are failing, though new calls upon them are still being made. In the actual expenditure of the funds to which I have just alluded, attention has been paid, in both instances, to the accommodation of the poor, no less than to that of the higher, and middle, orders of society. In the new churches, to be built by aid of the parliamentary funds, a fifth, at least, of the room was positively to consist of free sittings for the poor, by an express provision of the legislature: practically, and in fact, a third of the room, taking the new churches throughout, has consisted of free sittings. Of the additional sittings, again, to be provided by aid of the Church - Enlarging Society, it was a condition expressed that one-half should be free sittings. But here, again, practically and in fact, the proportion of free sittings to the other has been still greater; for, of the 110,000 sittings actually provided, 80,000 are free sittings; about threefourths of the whole. These are strong features of the times in this particular -of the want of church room, generally, and of the propriety of affording additional church room, especially to the poor; and they are not to be overlooked by ordinaries, when ap

plied to on occasions like the present, for obvious reasons. With respect to the poor, indeed, every possible reason exists why no concessions should be made at all likely to infringe upon their due accommodation in their several parish churches. It is

to be presumed that they are the persons most in want of religious instruction; and their title, as such, in particular, to receive it, is expressly recognized by the Divine Founder of Christianity himself. If disabled from receiving it, by want of room in their parish churches, they are almost driven to seek it in places of dissenting worship-a circumstance exceedingly to be deplored; although they are clearly entitled, and should freely be allowed, to resort to such places of worship if they prefer it; provided, that is, they are really dissenters, in opinion, from the doctrine, or discipline, of the Church.

Following then the times, and taking all these circumstances into due consideration, a strong case should be made out to induce the Ordinary, in the exercise of a sound discretion, to appropriate any pew, by faculty, to a particular parishioner, and his family, at the present day. True it may be that, at the particular time when the faculty is applied for, its issue may not be generally inconvenient: the parishioners at large may be sufficiently accommodated after, and notwithstanding, its issue. But in this even, the most favourable, case, there are obvious reasons for inducing the ordinary to entertain such applications with a good deal of reserve. For instance, additional room may be soon, or at some time, wanted, suggesting the propriety of new arrangements in the church: but such future arrangements may be formidably obstructed by the actual issue of the faculty then prayed; being, as it is, if once issued, good and valid, even against the ordinary himself. This consideration alone, might well induce the ordinary to pause, when applied to for a faculty of this nature, though no present inconvenience should seem to result from its concession to the applicant. ›

What then, in the first place, is the case set up by Mr. Lane, to induce