Knapp & others v. The Parishioners of St. Mary, Willesden. In June, 1850, a citation issued against the parishioners and inhabitants of the parish of St. Mary, Willesden, in the county of Middlesex and diocese of London, to show cause why a license or faculty, for the purpose of repairing and re-pewing the parish church and chancel aforesaid, should not issue, according to certain plans and specifications brought into the registry. The cause was promoted by the Rev. Dr. Knapp, the vicar, and the church-wardens of the said parish. The Rev. Dr. Knapp, having died since the institution of the proceedings, they were adopted by the present vicar. In answer to the citation, Mr. Joseph Nicoll, one of the parishioners, appeared and gave in an act on petition, in which he alleged, that, in 1819, he became possessed of a certain mansion-house and lands, called "Neasdon House," in the said parish, and that he, his lessees, or under tenants, had ever since occupied the said house, and enjoyed the use of a certain pew in the church as appurtenant thereto, and which stood separate and apart from the other pews, and adjoined the chancel, &c.; that the mansion-house and appurtenances were formerly the property of Sir William Roberts, and that, in the year 1743, the same came into the possession of the ancestors of Mr. Nicoll, who, or their lessees, &c., had ever since used and occupied the said pew, which had beyond memory been reputed and considered to be annexed and appurtenant to the said mansion-house; that, previously to 1582, the said pew had been enjoyed and used by Edmund Roberts, Esq., of Neasdon, who died in that year, and that he was an ancestor of the said Sir William Roberts; that on a monumental tablet, dedicated to the memory of Edmund Roberts, he is described as of Neasdon aforesaid, and that his hereditary armorial bearings were engraved on the said tablet, and the same were also carved on the pew in question, and were likewise carved in a part of the mansion-house, and remained there until within the last ten years; that the pew had been in the occupation of several descendants of Edmund Roberts, from 1582 to 1743; that Mr. Nicoll had, from time to time, since he had been the owner and occupier of the said mansion-house, caused the pew to be repaired at his own cost, and especially in 1820; in 1840, he caused a new seat to be fixed, and at various times had the lock repaired; that the pews and sittings of the church had, within the memory of divers parishioners, been repaired, altered, and re-arranged, but the said pew had been left undisturbed and in its original state; that, on the death of Mr. Nicoll's uncle, an achievement had been placed on the pillar within the pew, without any demand for fees on the part of the vicar and church-wardens; that the pew was not of a height to intercept the view of the pulpit or reading desk from any of the parishioners who might be seated either in the nave or chancel, and would not interfere with the intended re-pewing of the church; that, notwithstanding the premises, Mr. Nicoll had offered to renovate the pew, and to treat with the vicar and church-wardens for the purpose of carrying into effect the objects in view, subject only to the conditions that no alteration should be made in the size or situation of the said pew; but they declined to treat with him, subject to the said conditions. Knapp & others v. The Parishioners of St. Mary, Willesden. The act on petition concluded by praying that the court would not grant the faculty without a special proviso inserted therein; that nothing contained in the said faculty should authorize the vicar and church-wardens to remove or alter the pew appurtenant to the said mansion-house, or to molest the said Joseph Nicoll and his successors, &c., being the occupiers of the said house, in the peaceable and undisturbed enjoyment and use of the said pew. The answer, on behalf of the vicar and church-wardens, alleged the dilapidated condition and insufficient accommodation of the pews in the said church, and that the plans and specifications for the alterations had been submitted to the dean and chapter of St. Paul's, the patrons of the living, and the impropriators of the chancel, and they had given their consent; that they had also been approved of by the Bishop of London; that, according to the present arrangement of pews and sittings, there was only accommodation for three hundred and thirty-two persons, of which only fifty-nine were free seats, but that in the plan proposed there would be accommodation for four hundred and twenty-seven, and there would be one hundred and thirty-seven free sittings. The answer then admitted that Mr. Nicoll became pos sessed of the mansion-house and appurtenances in 1819, and that, in 1743, they came into the possession of his ancestors, but by purchase only; that the said pew had been used and occupied by Nicoll ever since he had been the occupier of the said mansion-house, as it had been by his ancestors and the family of Sir William Roberts, but denied that the said pew was, by prescription or faculty, in any way appurtenant to the said mansion-house, or that Nicoll had repaired it; that the consent of the lord bishop of this diocese to the proposed repewing of the church was given on the express condition that the regulations of the Church Building Society, in respect of the shape of the pews, should be observed, neither of which conditions could be fulfilled if the said pew was left in precisely its present state; that Nicoll had been offered the use and enjoyment of a new pew, to be erected in the situation of that in question, and the largest in the church, and to contain accommodation for at least eight persons, but that he refused such offer, and would not allow the said pew to be in any way interfered with. Twiss, (Bayford, who was with him, was absent,) on behalf of Mr. Nicoll, contended that there was a prescriptive right to the pew in question; and although no faculty could be produced, yet, after so long an occupancy, the court would infer it, especially as there was evidence to show that the owner of the mansion-house had always possessed the pew. Again: there was evidence showing the repairs of the pew by Nicoll and his predecessors - acts which were inconsistent with any supposition, except that it was appurtenant to Neasdon House. Pettman v. Bridger, 1 Phillim. 316. The court, therefore, in directing the faculty now asked for to issue, was bound to reserve to Nicoll his legal right to the pew. Addams, for the vicar and church-wardens, stated that the proposed Knapp & others v. The Parishioners of St. Mary, Willesden. alterations were not to be effected at the expense of the parish. The re-pewing of the body of the church was to be paid for by voluntary contributions, assisted by a grant from the Church Building Society, and the re-pewing of the chancel was to be done at the charge of the dean and chapter of St. Paul's. Mr. Nicoll was the only party opposing the issuing of the faculty; and if his pew was retained in its present form, it would totally derange the whole plan, and prevent the laudable scheme from being carried out. Mr. Nicoll was bound to set up his right and prove it, but he had failed so to do. Instead of proceeding by act on petition, the form ought to have been by plea and proof, when direct evidence would have been afforded that the repairs were trifling, and that on the occasion relied on, when the rest of the pews were repaired, with the exception of Nicoll's pew, Nicoll was himself church-warden, and had, for the express purpose of setting up a claim to this pew, given directions that it should not be repaired with the rest of the church. The claim was made out neither by faculty, prescription, or the indirect proof of repairs. DR. LUSHINGTON. The plans for re-pewing this church have been submitted to, and appoved by, the bishop of the diocese, and by the patrons of the living; the expenses are to be defrayed by voluntary subscription, and great increased accommodation will be afforded to the parishioners. These are reasons exceedingly strong to incline the court to grant the faculty, and to declare its opinion at once, that a faculty so much for the benefit of the parishioners should issue; but the court must take care, in all these proceedings, that it does not exceed its authority, well observing where no legal rights or objections interpose, and where such rights and objections do interpose. If I were to grant this faculty, and then it should turn out that there was a prescriptive right, the faculty would be of no use, it would be void, and Mr. Nicoll would have a full right to call upon the parishioners to reinstate his pew, as occurred in the case in Fortescue. Therefore I must consider, not what I would wish to do, or what I might think a benefit to the parishioners, but what the law will allow. In opposition to the issuing of this faculty, Nicoll alleges himself to be in possession of a pew; and if this is sufficiently alleged and proved to be by prescription, I have no discretion or course but to grant his prayer. If the pew be held by prescription or by faculty, I cannot touch it. But it is said he should have proceeded, not by act on petition, but by plea and proof. I know no authority for that objection; on the contrary, I believe the ordinary course, where the parishioners are cited, is by act on petition, and I see no reason or principle why they should proceed by plea and proof. I cannot, therefore, dismiss Mr. Nicoll because he has conducted his case in the manner in which it is now brought before the court. Secondly, has he sufficiently stated his prescriptive right? The word "prescriptive" is not used. As a general rule, it is inconvenient not to use the right legal word. A pew may be held by prescription, which presumes a faculty; or by a faculty, which may be produced; but when it is intended that 48 VOL. V. Knapp & others v. The Parishioners of St. Mary, Willesden. it is held by prescription, I do not see why the word should not be used. It is true, to a certain extent, that this court cannot try the question of prescription, yet it has jurisdiction till prohibited propter defectum triationis; there is no inherent defect, and the court has jurisdiction over the subject matter. In point of fact, however, is the title by prescription sufficiently set up? A pew may be said to be held by prescription where it has been enjoyed for many years constantly; and the first evidence in support of that title is use and occupation; the next evidence, which, however, is not indispensably necessary, but desirable, is the fact of the pew having been repaired; and it would be conclusive evidence against the claim if the parish had at any time repaired the pew, or in favor of the claim if, when the parish repaired the other pews, the particular pew was excepted. [Dr. Lushington then referred at length to the proceedings set forth in the pleadings above.] The answer admits, as to the first point, the occupation of this pew as appurtenant to Neasdon House for one hundred and fifty or two hundred years; after that it is superfluous to look at the evidence; the fact of possession is admitted. But it is averred that the mansion-house came to the present family by purchase only. I do not think that material, for the pew would go with the house, to which it is appurtenant, whether the property passed by purchase or by descent. The evidence sufficiently establishes the fact of repairs, though the repairs were slight; and the ingenious attempt, in argument, to take off the effect of the pew having been excepted from the parish repairs on a former occasion, can have no weight as the case now stands. I think the prescriptive right is made out, and that I ought not to interfere with it. I candidly confess that I would have rejected Mr. Nicoll's prayer if I could, but I am bound to pronounce for it. Twiss asked for costs. DR. LUSHINGTON. I hope you will not ask for costs. The question should not be settled; but if you press for them, I must, upon principle, give them. The costs were pressed for and given. The guardian of a minor, a married woman, in a matrimonial suit, is bound to exercise due caution before instituting proceedings against the husband, and is not exempt from liabil ity to condemnation in costs if the suit proves a mere fishing suit. But the wife, on coming of age and adopting such suit, will not be condemned in the costs incurred by her. THIS was a cause of divorce by reason of adultery, promoted by the wife against the husband. The citation issued and was served on the husband on the 23d August, 1848. On the 6th September a proxy was exhibited under the hand and seal of the wife, and an appearance given for the husband, and the proctor for the wife was assigned to libel on the 4th October, on which day the assignation was continued at his petition. On the 10th November, it having been ascertained that the wife was a minor, her proctor exhibited a proxy under her hand and seal, with a proxy of acceptation of guardianship for suits of William Puddephatt, the lawful uncle and next of kin of the wife, and an act of court sped thereon, and appeared for the said William Puddephatt, and exhibited a proxy under his hand and seal. The libel was brought in on the 8th December, and admitted, after opposition and reformation, on the 28th, when the marriage was confessed, and a negative issue given. Additional articles were brought in and admitted on the 30th January, and further additional articles, after opposition, were admitted on the 24th February. On the 8th June the husband personally appeared, and gave in his answers to the libel, and additional and further additional articles, and, without revoking the appointment of his proctor, personally gave in an allega tion subscribed by him, and this allegation was admitted, after refor mation, on the 27th June. On the 5th September the answers of the guardian were brought in; and on the 29th November, publication not having passed, the proctor for the husband brought in additional articles, excepting to the character of one of the witnesses examined on the further additional articles; and this allegation was admitted, after opposition, on the 19th December. On the 28th January, 1850, an allegation, setting up a case of conspiracy and tampering with witnesses against the husband, his attorney, and others, was admitted after reformation. Witnesses were examined on these pleadings at great length. Publication passed on the 28th May. On the 7th June the proctor for the guardian, and who had appeared originally for the wife, alleged her to have attained the age of twenty-one years, and exhibited a proxy under her hand and seal; and on the 15th June the cause was concluded and assigned for informations and 1 14 Jur. 768. |