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the meantime, upon trust, to permit the residue of the said conveyance term to wait upon and attend the reversion, freehold, and AND inheritance of the premises therein comprised, and to protect der of terms. the same from all mesne incumbrances, if any such there be, [covenant by I. K. with S. T., his executors, administrators, and assigns, against incumbrances, see page 253, and note (9), page 249]: AND THIS INDENTURE ALSO WIT- Witnesseth, NESSETH, that, for the considerations aforesaid, he the said L. M., at the request and by the direction of the cond term. said several persons, parties hereto, of the first, second, and third parts respectively, and on the acceptance of the said N. P., (testified &c.), hath surrendered, and by these presents, doth surrender unto the said N. P., ALL such and Parcels of term. so many and such part and parts of the said messuages, lands, and other hereditaments and premises hereinbefore released or expressed, and intended so to be as by the said indenture of the 12th day of November, 1818, were assigned to the said L. M., his executors, administrators, and assigns, for the residue then to come of the said term of 1,000 years, created by the said indenture of the 14th day of June, 1796, and all the estate &c., To The End and in- to be merged. tent that the said last mentioned term of 1,000 years may be merged and extinguished in the reversion and inheritance of the premises therein comprised (c), (covenant by L. M. with N. P., his executors, administrators, and assigns, against incumbrances, see page 253, and note (9), page

249], (covenants by C. D. with N. P., for seisin, “ as to the hereditaments secondly hereinbefore particularly mentioned,” and as to all the hereditamentsfor right to convey

--for quiet enjoyment, free from incumbrancesfor further assurance, pages 201 and 263). IN WITNESS &c.

surrender not

(c) An habendum is sometimes added to a surrender; but as the Habendum to a interest is always intended to be merged, and (if the circumstances surre admit) is merged by the surrender itself, the addition of an habendum

appropriate. of that which has ceased to exist seems incorrect. It is more usual to add a declaration of the intent as is done in the text; but even that is more for the sake of shewing the meaning of the parties than with a view to the legal effect. The merger would ensue without any declaration of intent. (See ante, p. 262, note (f)). The old forms, it may be observed, contain habendums; West's Symbolography, s. 462, 463.






Parties. THIS INDENTURE, made &c. Between A. B., of

&c. [vendor), and E. B., his wife, of the first part; C. D.,

of &c. [purchaser), of the second part; and E. F., of &c. Recital of an (trustee), of the third part: [recites agreement by A. B., nuities agreed to be charged.

on his marriage, to secure to his wife two annuities of £200

and £1,200 respectively, to be charged on all his hereditaRecital, that ments]: AND WHEREAS the said A. B. is seised or entivendor is seised in fee of a ma

tled of or to the manor of D., in the county of S., with its nor;

rights, members, and appurtenances, for an estate of in

heritance in fee simple, in possession, free from incum—that pur. brances : AND WHEREAS the said C. D. is seised or enchaser is seised in fee of copy

titled for an estate of inheritance to him and his heirs, holds; according to the custom of the said manor, of or to the

messuages, lands, and other hereditaments, comprised in

the second schedule hereunder written, or hereunto an-of contract nexed: And whereas the said A. B. hath contracted and for sale, enfranchisement, and agreed WILL

agreed with the said C. D. for the absolute sale to him, release of quit. of the messuages, lands, and other hereditaments, comprised rents ;

in the first schedule hereunder written, or hereunto annexed, with their appurtenances, and of the two pews hereinafter mentioned, and the inheritance of the same premises respectively in fee simple, in possession, free from incumbrances; and also for such enfranchisement to the said C. D., as is hereinafter contained, of the said copyhold, messuages, lands, and hereditaments, comprised in the said second schedule to these presents, with their respective




freeholds and


appurtenances, and also for such grant of common as is CONVEYANCE hereinafter contained, and for such release of quit-rents and chief-rents as is hereinafter contained, at or for the price or AND ENPRANsum of £— : And WHEREAS the said E. B., being satisfied "COPYHOLDS. that the said annuities of £200 and £1,200 are otherwise – adequately secured, hath agreed to join in these presents to release an

2. nuities. for the purpose and in manner hereinafter mentioned : “ NOW THIS INDENTURE WITNESSETH, that, in Witnesseth. pursuance of the said agreements, and in consideration of the sum of £— , at or immediately &c., the receipt &c., [see Precedent XVI. p. 194], he the said A. B. hath Conveyance of granted, aliened, released, and confirmed, and by these presents, doth grant, alien, release, and confirm, and the said E. B., with the concurrence of the said A. B., (testified by his being a party to and executing these presents), and for the purpose of releasing and extinguishing her right of dower of or in the hereditaments next hereinafter mentioned, and of discharging the same from payment of the said annuities of £200 and £1,200, doth, by these presents, release and dispose of unto the said C. D., (in his actual possession &c., (see Precedent XVI. p. 198]), and his heirs, ALL AND Parcels of the SINGULAR the messuages, lands, and hereditaments, com

lands, &c. by

reference to prised and mentioned in the first schedule hereunder written, schedule. or hereunto annexed; and also all those two pews in the Pews. chancel of the parish church of D. aforesaid, numbered four and five, and appurtenant to the messuages aforesaid (a):

(a) The freehold of a parish church is in the parson, whether lay Pews in the or spiritual; but the use of the body of the church is in the parish- body of a

church, ioners, and the disposing of the seats belongs to the ordinary. (Gibson's Codex, tit. ix. chap. 4, art. Rules of Common Law concerning the ordering and repairing of Seats; Pettman v. Bridger, 1 Phil. 323; Fuller v. Lane, 2 Addams, 425). By custom, however, the disposition of the seats may belong to the church wardens. (Burn’s Eccles. Law, (Church), s. 7).

The right to pews in a church may be claimed as an easement ap- Pews may be purtenant to a messuage, either by a grant from the ordinary, (which claimed as ap

purtenant to a is called a faculty), or by prescription, which presumes a grant to house by facul. have been formerly made. (Rogers v. Brooks, 1 T. R. 431 ; Stocks v. ty or prescripBooth, 1 T. R. 428; Mainwaring v. Giles, 5 B & Ald. 356; and cases tion. there cited; Morgan v. Curtis, 3 Man. & Ry. 389; Griffiths v, Mat


CONVEYANCE [general words], TO HAVE AND TO hold the said messuages,

lands, pews, and hereditaments, and all and singular other




thews, 5 T. R. 296). The period and nature of enjoyment formerly Habendum to

required for the presumption of a faculty, may be deduced from the above cases, and the authorities cited in them; but, now, by the stat, 2 & 3 Will. 4, c. 71, s. 2, an enjoyment for twenty years is sufficient to make a right to an easement, unless it be shewn that the right was first enjoyed at some time prior to the period of twenty years; and enjoyment for forty years confers an absolute right. This doctrine must, however, be taken subject to the exceptions made by the 7th and 8th sections of the statute, and to the construction of the statute

established by the cases referred to ante, p. 213, note (h). Right to pews The right to a pew cannot be severed from the messuage to which by faculty and

it is appurtenant; the tenant of the messuage for the time being has prescription.

also de jure, for the time being, the right to the pew. (Per Lord Stowell, 1 Hagg. 319). A pew cannot be claimed as appurtenant to land, but only to a messuage, because it is for the use of the inhabitants; (Burn's Eccles. Law, (Church), vii. 9; Co. Lit. 121. b.); but the messuage may be in another parish, and that whether the pew be in the body of the church or in an aisle. (Davis v. Witts, Forrest, 14; Lousley v. Hayward, 1 You. & Jerv. 583). A faculty may be granted to any man who is a parishioner, but not to a man and his heirs ; (Stocks v. Booth, 1 T. R. 428); and no non-parishioner can claim a pew by any other title than that of prescription. (Byerley v. Windus, 3 B. & C. 1). The right to a pew may be apportioned. (Harris v. Drewe, 2 B. & Ad. 164); and priority in a pew may be prescribed

for. (Carleton v. Hutton, Noy, 78; Latch, 116). Jurisdiction as It is only when a pew is claimed by faculty or prescription that to pews.

the Courts of Common Law have jurisdiction; in other cases, the right to pews is a matter entirely of ecclesiastical jurisdiction. (Mainwaring v. Giles, Byerley v. Windus, ubi supra; Witcher v. Cheslam, 1 Wils. 17). Of course, conveyancers have to deal only with pews

which are claimed by faculty or prescription, Repairs of pews It seems that a person prescribing for a pew, must shew that the prescribed for. owners of the messuage to which he alleges it to be appurtenant, were

used to repair the pew. (Kenrick v. Taglor, 1 Wils. 323; Pettman

v. Bridger, 1 Phill. 316; see, however, Fiske v. Revit, Lofft, 423; Remedies for 2 Rolle's Abr. 288). Tresspass will not lie for a pew, because the disturbance in plaintiff has not the exclusive possession, the possession of the church the use of pews. heing in the narer

being in the parson. (1 T. R. 430; Dawtrie v. Dee, 2 Roll. Rep. 139, Palm. 46; see, however, the remarks of Best, C. J., in Spooner v. Brewster, 3 Bing. 136). The remedy for disturbance is by action on the case; (Noy, 78; 1 Sid. 88; Sir T. Jones, 3; 3 Keble, 745; Wats. Cler. Law. c. 39); or by suit in the Ecclesiastical Court when the

the premises hereinbefore granted and released, or expressed CONVEYANCE and intended so to be, unto the said C. D. and his heirs, of




faculty or prescription is not disputed. (2 Salk, 551; Lord Raym, 755; Byerley v. Windus, ubi supra).

The preceding remarks apply principally to the pews in the body Pews in the of the church; the law, with regard to pews in the chancel, is some- char what uncertain; (Rep. of Eccles. Comm. of 1832, p. 130); although it appears in the main to be the same as for those in the body of the church. The parson is entitled to the chief seat in the chancel; (Hall v. Ellis, Noy, 133; Bulst. 151); but the ordinary may grant to other persons the right to have pews there; (1 B. & Ald. 506); and, consequently, it is apprehended that pews in the chancel may be prescribed for. A grant in fee by the parson of the chancel, or any part of it, is not good, as it is inalienably annexed to the parsonage; and, therefore, the grantee, or those claiming under him, cannot maintain trespass agaiust the parson for the time being for pulling down their pews, (Clifford v, Wicks, 1 B, & Ald. 498; see, however, the observation of Abbott, C, J., 5 B, & Ald. 361). It is said, that a vicar has a right to a seat in the chancel. (Burn's Eccles. Law, (Church), vii. 13; and, for further information on the subject of pews, see the same work, (Church), vii.

An aisle, or a pew in an aisle, may be appurtenant to a house, An aisle may either by faculty or prescription. (Frances v. Ley, Cro. Jac. 366; be claimed hy Barrow v. Kew, 2 Keb. 342; Davis v. Witts, Forrest, 14; Pym v.

faculty or pre

scription. Godwin, Moore, 878; Burn's Eccles. Law, (Church), iv.).

It is apprehended, that as the pews are appurtenant to the mes. Pews pass as suages, and cannot be severed, they would pass with the messuages appurtenances. under the general words, or even without the use of any general words, (See 1 Hagg. 319).

The law with regard to vaults or places of burial, seems to be nearly the same as that in respect of pews. (8 B. & C. 295). The inhabitants of a parish have a common-law right to be buried in the churchyard; (Degge's Parson's Law, part 1, c. 12; Burn's Eccles. Law, (Burial), 258; Comyn's Dig. (Cemetery), B.; Andrews v. Cawthorne, Willes, 536; Rex v. Coleridge, 2 B. & Ald. 806); and the incumbent may permit a person to be buried in the church. (Gibson's Codex, 453).

The right to bury in a separate vault, or in an aisle, or the quire or chancel, may be prescribed for as appurtenant to a messuage; (Comyn's Dig. (Cemetery), B.; Waring v. Griffiths, 1 Burr. 440); and may therefore be granted by faculty. (Bryan v. Whistler, 8 B. & C. 288). But the parson alone cannot grant the separate use of a vault, (S. C.). And a claim to bury in any particular part of a churchyard cannot be supported, otherwise than by a faculty or prescrip

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