tains to the Churchwardens, to whom the authority of the Ordinary is in this respect delegated. (f)

Because the right to dispose of Pews, though vir- Exercised by tually in the Ordinary, is, as a matter of convenience, the Churchand for the preservation of peace and quiet, exercised by means of the Churchwardens, and they place the Parishioners in the different Pews. (g)

But this right is not to be exercised arbitrarily, Not arbiwithout considering whether another party has any trarily. legal or equitable title. (g)

But the real duty of the Churchwardens in such But for the case, is to look to the general accommodation of the general accomParish, consulting, as far as may be, that of all its

inhabitants. (h)

modation.

Therefore the Churchwardens must exercise a just With a just discretion in the allotment of Pews, subject to the discretion. correction of the Ordinary. (¿)

So that if a question arises concerning a Seat in Subject to the the body of the Church, the Ordinary shall decide Ordinary's t. (k)

The Common Law never meddles with these matters, except where a Seat is claimed by Prescription. All other Seats it wholly leaves to the disposing and ordering of the Bishop; and so long as he has the decision of all controversies about them, this will always be a proof of his right in the matter. Therefore, whatsoever usage the Churchwardens

decision.

Churchwardens, officers of

the Bishop.

Right inde

pendent of the Ordinary.

Cannot be prescribed for.

Pym and

may pretend to for the disposal of the Seats in any Church, they must be understood to do this solely by the authority of the Bishop, as officers acting under him. (1)

It seems doubtful whether the Churchwardens have, under any circumstances, a right to dispose of Seats independent of the Ordinary. Dr. Prideaux held that how much soever it may have been the usage in any place for the Churchwardens to dispose of the Seats in the Church, it can never amount to a Prescription to exclude the Bishop; because, they being officers under him, whatsoever they do in this kind, must always be supposed to be done by an authority derived from him, either positively granted, as by his Faculty, or else tacitly allowed. (m)

And it has been held that Parishioners cannot prescribe to dispose of Pews exclusive of the Ordinary, because the Ordinary not acting, might be because there had been no occasion for his intermeddling; but that cannot vest the right in them who are only a Corporation capable of goods, but not of inheritance. (n)

Though it is said to have been held in Pym and Gorwyn's case. Gorwyn's case, (o) that Seats in the body of the

Church are disposable by the Parson and Churchwardens, this must be understood of the usual cases, where there is no dispute about the matter, and the Ordinary does not interfere because none com

(1) Prid. 114.

(m) Prid. 113.

(n) Presgrave v. Churchwardens of Shrewsbury, 1 Salk. 166;

Such prescriptive right void,Com.
Dig. "Esglise" (G. 3).

(0) Pym and Gorwyn's case, Moor, 878.

plain. (p). But in this same case, (q) according to other reporters, it was held that the Ordinary had primarily the disposal.

It is stated in Gibson's Codex, (r) that a custom, Custom cited time out of mind, of disposing Seats by the Church- by Gibson. wardens and major part of the Parish, or by twelve

or any particular number of the Parishioners, is a good custom; and that, if the Ordinary interpose, a Prohibition will be granted. (r)

bad.

But where a Prohibition was prayed, on a sugges- Custom held tion that time out of mind there had been a custom that the Churchwardens, with the major part of the Parishioners, may order the Seats in the Church, Chief Justice North said-" A Prohibition shall not be granted, because the Ordinary hath jurisdiction, and the Churchwardens cannot jostle out his authority." (s)

And this must hold in London as well as every- Rule holds in where else. For although in that City the Church- London. wardens take it wholly upon them to dispose of Seats, yet no usage can give them a title to do this exclusive of the Bishop; for when any controversy arises, they have nowhere to go but to him for a decision upon it. (t)

If the Churchwardens neglect or go beyond their duty in the seating of the Parishioners, they may be cited in the Ecclesiastical Court. (u)

(P) Watson's

Law, 388.

Clergyman's

(q) Corven's case, 12 Coke, 105; Garven and Pym's case, Godb. 200.

(r) Gibs. Cod. 198.

(s) Langley v. Clarke, Sir
Thomas Raymond, 246.
(t) Prid. 113.

(u) Walter v. Gunner and
Drury, 1 Hag. C. C. 314.

Churchwardens may be

cited for not doing their duty.

May be called upon to shew

cause.

A sufficient return.

Want of space.

Permission to erect a Pew.

On condition to pay the Parish.

The Churchwardens of Teddington were cited in the Ecclesiastical Court, calling upon them to show cause why they had not seated, or caused to be seated, the plaintiff and his family in the Parish Church, according to his station and condition, he being a principal Inhabitant and Parishioner, and having duly applied to them to be so seated. Sir W. Scott thought the process had issued very properly, and that this was a convenient mode of proceeding. (x)

It would be a sufficient return if the Churchwardens were to aver that they were unable to comply with the request, on the ground of there being no vacancies. (r)

If that return were made and duly established, it might be entitled to much consideration, as, in the enlarged population of many Parishes, it may really not be in the power of the Churchwardens to make immediate additions to the Fabric, or to build Chapels at once for the accommodation of the inhabitants. (y)

But if there are existing Pews improperly occupied, the mere offer of a permission to erect a Pew is not a good return. (z)

And a return was held bad, which stated that notice of a Vestry had been given, and an offer made that the party might erect a Pew, on condition that he should pay the Parish for it. (z)

If the Churchwardens interfere to take away a Seat, and, a fortiori, to take it to themselves, the

(x) Walter v. Gunner and Drury, 1 Hag. C. C. 314,

(2) Walter v. Gunner and Drury, 1 Hag. C. C. 317.

Ordinary will interfere, as by a suit of perturbation Where
of Seat, although it were not originally meant for
that purpose. (a)

Every housekeeper has a right to call upon the Parish for a convenient Seat; and if an inhabitant wants a Pew, the Churchwardens ought not to permit an occupancy by a non-inhabitant. (b)

When you have an inhabitant in a Parish, the probability is that he will have some permanent place for himself and his family to sit in. A person occupying a respectable station is not, each time he comes to Church, to wait till the Clerk or Sexton allots a Sitting to him. (c)

Churchwardens take away a Seat.

Every housekeeper has a

right to a Seat.

Must have one allotted to him.

new house in Parish.

It seems doubtful whether a person begins to be a Building a Parishioner at the time of building a new house in the Parish in which he intends to, and afterwards does, reside. (d)

must be en

But as every man who settles as a householder Where Church has a right to call on the Parish for a convenient larged. Seat, if the Church is insufficient to the due accommodation of the Parishioners, it is highly proper it should be enlarged, as this is an inconvenience against which the Parish is bound, and may be compelled by Ecclesiastical censures, to provide. (e)

Generally speaking, most undoubtedly, the Church- Allotting wardens act more correctly in allotting vacant Pews vacant Pews.

(a) Drury v. Harrison, cited in Parham v. Templar, 3 Phill. 516.

(b) Groves v. Rector of Hornsey, 1 Hag. C. C. 194, 314, cited Byerley v. Windus, 5 B. & C. 20.

(c) Morgan v. Curtis, 3 M.

& Ry. 393.

(d) See Fuller v. Lane, 2 Add. 432.

(e) Groves v. Rector of Hornsey, 1 Hag. C. C. 194.