majority of the parishioners assembled for the purpose, and that that not having been done here, the rate is bad. I think, further, that the doctrine of votes being thrown away is inapplicable to the case of a body of persons assembled to make a bye-law; and even if the analogy was much closer than it appears to me to be, still the authorities show it cannot prevail in this case; for it appears, from the remotest time, a contumacious majority refusing to make a rate might be punished till the majority did concur, a state of things inconsistent with the notion that their concurrence is not essential to the validity of the rate; and lastly, the proposal of the commissioners in the reign of Edward the Sixth providing for the mode of assessing a rate by the churchwardens, and the consent of the four parishioners, shows that, according to their understanding of the law, the churchwardens had in effect, no such power by simply convening the parishioners, and, in case of contumacious opposition, imposing the rate by the will of the minority. I am, therefore, of opinion, the judgment below should be reversed.

1825. Hil. Term. By-day.

pews in parish

Report of the case of FULLER V. LANE.

[On appeal from the Commissary of Surrey's Court.]

[Reported 2 Addams, 419.]

Faculties ap- This was a question respecting the appropriation of a pew in propriating a parish church by faculty; in which the law respecting the appropriation of pews by faculties, and the principles by which ordinaries should be governed in disposing of applications for the issue of such faculties, especially as with reference to the circumstances of the times, were fully entered into, and were stated by the court, at large, in its judgment.

churches to particular families, in different forms, and under different limitatations, too lavishly granted by ordinaries in former times--the

numerous

exclusive rights to particular pews, vested,

JUDGMENT.

Sir John Nicholl:

This is a question respecting the appropriation, 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 applied for this faculty to the comor supposed missary of Surrey, within the limits of whose jurisdiction Lingfield to be vested, in particular is situate. Accordingly, a citation issued from the commissary of families, to

which this has given

Surrey's court, in June, 1821, calling upon the minister, churchwardens, and parishioners, of the said parish of Lingfield in special,

sances to parishes at

and all others having, or pretending to have any right, title, or rise, nuiinterest in the premises, in general, to appear and show cause why a licence and faculty should not issue for confirming and ap- large—it is propriating the use of the said pew to Mr. Lane and his family, ordinaries to the duty of so long as he and they should continue parishioners and inhabi- prevent, as far as may tants of Lingfield-with the usual intimation.

tions for such

be, their An appearance was given to this citation, as well by the minister continuance or increase, and churchwardens, as by a Mr. Kelsey, a parishioner of Lingfield, by treating' both as opposing the grant; and two several allegations were filed, all applicanominally, on the part of both, but, really, on the part of Kelsey faculties only; it being the purport of those allegations to set up an ex- with great reserve; and clusive right to the pew sought to be appropriated in Kelsey, as by suffering appurtenant to a mansion in the parish called Batnors, which he, none to issue Kelsey, had then recently purchased. In point of fact, the minis- very parter and churchwardens took no step in the cause, during its ticular cirpendency 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 connection with the former proprietors of Batnors, 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 becaine, 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 licence or faculty, ex gratiâ, to the respondent, upon the

but under

cumstances.

grounds stated in and pursuant to the tenor of the orginal 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, that 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 Batnors, 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 Surrey, 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 sisters, the one unmarried; the other, the wife of Mr. Lane, who, I should say, is an attorney in London. Up to 1820, the Faringdons are admitted 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 (supposed) 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 foundation; as 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 Farringdon 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 Farringdon, the first donee; in which capacity, and not as the mere owner of Batnors, he insisted that the right had long 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 begun 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 showing, Lane has 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 the 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 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 Farringdon 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 gratiâ, through he no longer claims it ex debite justitiæ, 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, 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 pews 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 the 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. The distribution 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