pew, and the other pews in the Chancel, were not taken down or interfered with during the reparations. That at such time the steeple of the Church was not disturbed, and that the foundations for the present north and south side walls were placed precisely on the site or situation of the old walls, and that the Church was no wider or narrower than it was previous to the reparation aforesaid; and the Respondent alleged, that it was not needful that the Church of Waddington should be re-consecrated in consequence of the reparations made therein as aforesaid; and he prayed that the Court would reject the Appellant's plea, and pronounce for its jurisdiction in the cause with respect to the Church, and condemn the Appellant in costs. These allegations the Appellant denied, whereupon the Respondent prayed for a Monition against the Appellant and the Churchwardens of the Parish of Waddington, to bring in the specification and estimate for the works contracted for and agreed to by the Vestry at Waddington in the year 1824. Affidavits were filed by the Appellant in support of the averments contained in his protest. The Respondent also filed Affidavits in answer to the Appellant's averments. The questions thus raised were argued by Counsel, when the Judge of the Chancery Court of York (Granville Harcourt Vernon, Esq.) overruled the protest against the jurisdiction, and decided that no re-consecration was necessary. Against this judgment the present appeal was interposed. Mr. A. J. Stephens, Q.C., and Mr. R. A. Bayford, for the Appellant This is primarily a question of jurisdiction. It is pleaded and proved that in the year 1824, the Parish Church of Waddington was pulled down, the foundations removed, and the altar taken away; since which there has been no consecration of the Church, and in consequence of such want of consecration, the Chancery Court of York had no jurisdiction with respect to the Church. If that objection be well founded, the other point raised relative to the title to the pew in question will not arise, namely, whether it be in Mrs. Ramsden, the owner of the Mansion in respect of which the pew is claimed, or in the Respondent, Leach, who is only her tenant, and has no VOL. I. 3 2 B J. C. 1866 PARKER v. LEACH. J. C. 1866 PARKER V. LEACH. title himself to the pew; and, therefore, the right to sustain a suit for perturbation will not arise. First, then, as to this Church being a new building, and, therefore, requiring re-consecration. In making the repairs in 1825, it appears from the evidence that there was nothing left of the original fabric but the Tower, and a portion of the old walls, which have been so added to or raised as entirely to destroy the identity of the building, and to render, therefore, reconsecration necessary. In Battiscombe v. Eve (1), a re-consecration was required, the whole Church, except one arch, having been pulled down and rebuilt. So in Warner v. Gater (2), a Churchrate for defraying the expense of the consecration of a Church rebuilt under the Statute, 59 Geo. 3, c. 134, s. 40, was held valid, although no Faculty had been granted. It has been decided that if a Church is entirely taken down and rebuilt re-consecration is necessary; Turner v. The Parishioners of Hanwell (3). Though there is no authorized form for the consecration or the re-consecration of a Church in our Book of Common Prayer, there is such in the Irish Book (Dublin Ed., 1723), where the following services are to be found. First, there is "An Office to be used in the Restauration of a Church," the Rubric of which is thus: "Where the Fabrick of a Church is ruined." The form for consecration usually adopted is to be found in Burns' Ecclesiastical Law, vol. i., tit. "Church," p. 327 [9th Ed.]; but the special form, where the Church has been repaired, is only to be found in the Irish Prayer Book, already cited, and we produce copies of two Deeds of consecration, extracted from the Provincial Registry of Armagh; one dated the 29th of September, 1863, of the Parish Church of Loughgilly, in the Diocese of Armagh, and the other, dated the 1st of September, 1865, of the Church and Churchyard of Tullaniskin, in the same Diocese; the first of which recites that the Church of Loughgilly "has recently been altered, improved, and enlarged, including in the said enlargements a new Chancel;" and the second, of the Church of Tullaniskin, recites, that that Church has recently been altered, improved, and enlarged." These precedents shew at once the practice, and the necessity for (2) 2 Curt. 315 (1) 7 L. T. (N. S.) 697. (3) 1 Notes of Cases, 368. The re-consecration where alterations and improvements have been made, and a new Church is built on the same foundation. Rubric for the "Restauration," proceeds: "The Bishop, attended by his Clergy, shall enter into the Church-yard, and go in procession round about the Church new built, and recite alternately Psalm 74;" after which, in the service, follows the Lord's Prayer, then the Collect "For Direction and Success in all Undertakings," from the post Communion service, then a prayer taken from the 9th chap. of Ezra, 6th verse, and then the 144th Psalm, "After which" (the Rubric directs) "the Bishop, attended with the Clergy, shall go to the Font, and use the same Office as is appointed for the Consecration or Dedication of Churches; and so to the end; omitting the words (place or places), because the place was consecrated before, and so was the Cemetery, in other things proceed without change." There is also in the same Book "A Short Office for Expiation and Illustration of a Church Desecrated or Profan'd," that is by "Murther and Bloodshed, by Uncleanness, or any other sort of Prophanation." The old Ecclesiastical law in such a case required, if not a re-consecration, a reconciliation; but where the fabric of the Church was destroyed, a re-consecration was necessary, as the new fabric of a Church is not the same Church. Gibson's Codex, p. 189, Tit. ix. c. 1, s. viii. Van Espen, Jus. Ecclesiasticum Universum, Vol. I., Part II., Tit. I.; Cap. iv., v., and vi. Secondly, as to the title to the pew. The Respondent is but the tenant of the alleged owner, Mrs. Ramsden, he has clearly no right to the pew, his occupation being merely permissive and on sufferance; and the libel does not disclose a sufficient cause of action, and is not, therefore, admissible. To give a title to this pew, there must either have been a Faculty granted to Mrs. Ramsden, or her predecessors, or a permissive occupation by her; in either case, she alone is competent to institute such a suit as this. Co. Litt. Vol. I., B. 2, c. II., sec. 184, p. 122 a., 6; Woollocombe v. Ouldridge (1); Byerley v. Windus (2); Clifford v. Wicks (3); Walter v. Gunner (4); and the cases there referred to in the notes: Pettman v. Bridger (5). The Appellant, as incumbent of the Chapelry, J. C. 1866 PARKER v. LEACH. (2) 5 B. & C. 1, 18. (4) 1 Hagg. Con. Rep. 314, 318.. (5) 1 Phil. 316, 325. J. C. 1866 PARKER V. LEACH. had power to remove the pew: Jones v. Ellis (1); Griffin v. Digh ton (2). Dr. Deane, Q.C., and Dr. Spinks, for the Respondent: There is no pretence for saying this is a new Church, neither the Tower nor the eastern end of the Church were ever removed and the new side walls were erected on the old foundations. The repairs, moreover, were done under a Faculty. It is in evidence that the services of the Church were never entirely suspended Marriages were celebrated, and it appears from the Churchwarden: accounts, that the Holy Communion was administered, for ther is a charge for the bread and wine. How, then, can it be con tended that this is a new Church? In Co. II. Inst., Stat. We 2nd, c. 5, p. 363 [Ed. 1571], it is stated that "when the question was whether it were Ecclesia aut Capella pertinens ad matrios Ecclesiam, the issue was, whether it had baptisterium et sepulturas: for if it had the administration of the sacraments and sepulture it was in law judged a Church, and Lord Coke cites Ric. de Smithes' Case, Trin. 20, Ed. I., and other cases. What condition are the Parishioners of this Parish in, if the argument of the Appellant is well founded, and this Church has been no Church for the last forty years? Has the Reverend Incumbent reflected on the consequences if he were successful in his contention? There is no service either in the Book of Common Prayer, or elsewhere, for the re-consecration of a Church repaired or restored. Each Prelate frames, or may frame, his own form for consecration of a Church, and it is probable that, from general use, the one cited from the Irish Book of Common Prayer has become general in Ireland; but there is no authority for its forming a part of the Book of Common Prayer, or for its general use. In the case of Warner v. Gater (3), where the Church was rebuilt under the Statute, 59 Geo. 3, c. 134, Sir Herbert Jenner is represented as saying, that the Church could not be a Parish Church until it was consecrated. That is, however, but an obiter dictum, for the question of the neces sity of consecration was not before the Court, and the Church, moreover, was altogether a new Church, which was not the case here. The case of Turner v. The Parishioners of Hanwell (4), must (1) 2 Y. & J. 265. (2) 33 L. J. (N.S.) Q. B. 29. (3) 2 Curt. 315. be wrongly reported, the learned Judge of the Arches never could have said, as he is there represented, that if the altar had been taken down there must be a re-consecration. That has been done over and over again, and very recently in Westminster Abbey itself, without any such re-consecration being required. The case of Battiscombe v. Eve (1), so much relied on by the Appellant, is not an authority binding on this Court, it was a decision of the Chancellor of Rochester, in the Consistory Court of that Diocese, and though entitled to great weight from the learning and ability of the learned Judge, Dr. Robertson, who delivered it, is, we insist, not warranted by the authorities relied on, and not supported by any legal precedent. There is, moreover, this essential difference, that in that case there was no Faculty for the repairs or rebuilding of the Church. There cannot be a partial consecration of a Church, every portion of the Church must be included; the Vestry as well as the body of the Church: Wilson v. M Math (2). In the very same passage cited from Van Espen, Jus. Ecc., the question is asked, What if the altar is removed, does that require a re-consecration of the Church? and the reply is-The altar is made for the Church, and not the Church for the altar; and, therefore, no fresh consecration is requisite. Even if the law were as reported in Turner v. The Parishioners of Hanwell (3), here the Church would not require re-consecration, for neither the Tower nor the altar have been disturbed. The interference by the Incumbent with the pew, was wholly illegal, and unwarrantable; the Churchwardens are the only persons having a legal right to alter or remove the pews, and they must act under the authority of the Ordinary: Pettman v. Bridger (4). The suit was properly instituted by the Respondent, he had a possessory right in the pew: Stocks v. Booth (5); and if any objection was intended to be made to his title to sue, it should have been taken on the admission of the libel; it is too late now, even if tenable, which we submit it is not. LORD WESTBURY : The Appellant in this case is the perpetual Curate and Incumbent (1) 7 L. T. (N. S.) 697. (2) 3 Phil. 67. (4) 1 Phil. 316, 323. J. C. 1866 PARKER v. LEACH. |