CONVEYANCE -ASSIGNMENT AND SURREN Witnesseth, thirdly, surcond term. render of se the meantime, upon trust, to permit the residue of the said term to wait upon and attend the reversion, freehold, 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 (g), page 249]: AND THIS INDENTURE ALSO WITNESSETH, that, for the considerations aforesaid, he the said L. M., at the request and by the direction of the 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 herein before 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 (g), page 249], [covenants by C. D. with N. P., for seisin, "as to the hereditaments secondly hereinbefore particularly mentioned," and as to all the hereditaments-for right to convey -for quiet enjoyment, free from incumbrances-for further assurance, pages 201 and 263]. IN WITNESS &c. (c) An habendum is sometimes added to a surrender; but as the interest is always intended to be merged, and (if the circumstances admit) is merged by the surrender itself, the addition of an habendum 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 (ƒ)). The old forms, it may be observed, contain habendums; West's Symbolography, s. 462, 463. Habendum to a surrender not appropriate. XXVIII. CONVEYANCE of FREEHOLDS and PEws in a PARISH CHURCH-ENFRANCHISEMENT of COPYHOLDS AND RELEASE of QUIT-RENTSthe WIFE of the Vendor joins for the Purpose of RELEASING two equitable RENT-CHARGES. 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. [trustee], of the third part: [recites agreement by A. B., on his marriage, to secure to his wife two annuities of £200 and £1,200 respectively, to be charged on all his hereditaments] AND WHEREAS the said A. B. is seised or entitled of or to the manor of D., in the county of S., with its rights, members, and appurtenances, for an estate of inheritance in fee simple, in possession, free from incumbrances AND WHEREAS the said C. D. is seised or entitled for an estate of inheritance to him and his heirs, 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 annexed: AND WHEREAS the said A. B. hath contracted and agreed with the said C. D. for the absolute sale to him, of the messuages, lands, and other hereditaments, comprised 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 CONVEYANCE OF FREEHOLDS CHISEMENT OF nuities. freeholds and appurtenances, and also for such grant of common as is hereinafter contained, and for such release of quit-rents and chief-rents as is hereinafter contained, at or for the price or AND ENFRANsum of £ : AND WHEREAS the said E. B., being satisfied that the said annuities of £200 and £1,200 are otherwise - of agreement adequately secured, hath agreed to join in these presents to release anfor 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 pre- pews. sents, 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, comprised 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 or spiritual; but the use of the body of the church is in the parishioners, 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 appurtenant to a messuage, either by a grant from the ordinary, (which is called a faculty), or by prescription, which presumes a grant to have been formerly made. (Rogers v. Brooks, 1 T. R. 431; Stocks v. Booth, 1 T. R. 428; Mainwaring v. Giles, 5 B & Ald. 356; and cases there cited; Morgan v. Curtis, 3 Man. & Ry. 389; Griffiths v. Mat lands, &c. by reference to CONVEYANCE [general words], TO HAVE AND TO HOLD the said messuages, OF FREEHOLDS lands, pews, and hereditaments, and all and singular other AND PEWS, AND ENFRAN CHISEMENT OF COPYHOLDS. Habendum to uses. Right to pews by faculty and prescription. Jurisdiction as to pews. Repairs of pews prescribed for. Remedies for disturbance in thews, 5 T. R. 296). The period and nature of enjoyment formerly 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). The right to a pew cannot be severed from the messuage to which it is appurtenant; the tenant of the messuage for the time being has 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). It is only when a pew is claimed by faculty or prescription that 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, It seems that a person prescribing for a pew, must shew that the 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; 2 Rolle's Abr. 288). Tresspass will not lie for a pew, because the plaintiff has not the exclusive possession, the possession of the church the use of pews. 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 herein before granted and released, or expressed coNVEYANCE and intended so to be, unto the said C. D. and his heirs, faculty or prescription is not disputed. (2 Salk, 551; Lord Raym, 755; Byerley v. Windus, ubi supra). OF FREEHOLDS AND ENFRAN CHISEMENT OF chancel. 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 somewhat 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 may be claimed by faculty or prescription. An aisle, or a pew in an aisle, may be appurtenant to a house, either by faculty or prescription. (Frances v. Ley, Cro. Jac. 366; Barrow v. Kew, 2 Keb. 342; Davis v. Witts, Forrest, 14; Pym v. 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 appurtenances. with the messuages pass 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 |