partisan, the ( TAT E D HE' = them but by preser OL 1 26 Tre 150 ML IT utmost : f credit a

forty years, Cate & Jer. 4 S Fresc tionilus C. ad ties mitte LETRAS DAS Quadragenas brzegia inteR DE SUS POLO tollit, i. e. A forty years prescrit, da takes ExRJ all action.) after they have been disesed so Aggi the Church has lost its claim to them by the same prescription

taxations; and the licence of the Bishop is required to secure the Church from having any nuisance or unfitting incumbrance erected in it, whereby the decent performance of the divine offices may be impeded, or the people any way hindered from fully partaking of the benefits of them. But if the thing that is added be not in the Church, nor is added to the fabrick or its appurtenances for any religious use, but only for the benefit, convenience, or curiosity of the parishioners, as a clock, a dial, chimes, a supernumerary bell, &c. in this case the licence of the Ordinary is not requisite, but it will be sufficient if the major part of the parish be consenting thereto. But if the new erection be in the chancel, the leave of the Parson is also necessary, because the chancel belongs to him, and is as part of his glebe; and therefore if the Church-wardens set up any new seat in the chancel, or place rails there at the altar, they must have not only the consent of the parish, but also the leave of the Parson as well as the licence of the Ordinary, before it can be legally done.

Whenever any thing is thus legally added to the fabrick of the Church, utensils, Church-yard, or appurtenances, by such consent and licence as are requisite thereto, it thenceforth becomes the chargeof the Church-wardens to take care of it, and they are obliged to repair, amend, and renew it, as need shall be, in the same manner as other particulars belonging to the said Church.

If any of the particulars of the fabrick, utensils, Church-yard, or appurtenances, which either the

does not encroach upon or interrupt the meetings of the Church wardens about such things as belong to them; 'nor draw the cognizance of them into a different frum. Lord MANSFIELD. The ground we go upon is, that a prohibition will not be material.

A rate cannot be made to reimburse a Church-warden. Cas. Temp. Hardw. 381. And. 11. 2 Ld. Raym. 1009.

law,

law, or the nature of the things themselves make necessary to every Church, have been omitted or let down for any time, the Church-wardens are empowered to restore them, how many years soever may have been past, since they were last in use, without any consent of the parishioners, or licence of the Ordinary to authorize them thereto; because the duty of their office always obligeth them to this, and they are guilty of the breach of it as long as they omit it.

But if any of the particulars omitted or let down be not of those parts of the fabric, utensils, Churchyard, or appurtenances, which either the law, or the nature of the things themselves make necessary to every Church, but are only such as have been added by the consent of parishioners, or other licence requisite, for the more decent and orderly administration of the divine offices, or greater ornament of the Church, or only for the benefit, conveniency, or curiosity of the parishioners, if they have been out of use for above forty years, the Church-wardens have no more any authority to restore them, nor can any ecclesiastical jurisdiction enjoin it on them, or legally require it to be done, but they become then of the same nature in law, as if they had never been in the Church at all. For there being no law or absolute necessity for those particulars, the Church can have no other right to them but by prescription and former usage; but the utmost limit of ecclesiastical prescription being forty years, (Coke 2 Inst. 653. Extra' de Præscriptionibus C. ad Aures nostras; where it is decreed, Quadragenalis Præscriptio omnem prorsus actionem tollit, i. e. A forty years prescription takes away all action.) after they have been disused so long, the Church has lost its claim to them by the same prescription

prescription against them, by which it first gained a right to them; and therefore they cannot after this time elapsed, be again restored without the consent of the parishioners, and other licence requisite, in the same manner as if they had never belonged to the Church at all.

And therefore for example, the rails at the altar being not required by any law, or of themselves absolutely necessary in any Church, as they cannot be first erected without the consent of the parish and Parson, and the licence of the Ordinary first had thereto, so neither after forty years disuse can they be again restored without the same consent and licence to authorize the Church-wardens to do the thing, and levy a rate upon the parish for it, And therefore tho' it be very decent and fitting that there should be rails in every Church to keep the communion table, at which the highest mystery of our holy religion useth to be celebrated, from that profanation, which it may otherwise be exposed to (and which is all that is intended by them) yet since this is a matter which often raiseth great contests and disturbances in parishes among weak and serupulous persons, it is proper that Church-wardens have this advice given them, that they enter on no such attempt, unless in such a legal way, as may justify them in the doing of it.

But here it is to be observed, that the consent of the parish is not required as necessary to authorize the thing, but only to oblige them to pay for the doing of it. Whether it be fitting to be done or no, belongs only to the Ordinary to judge; but whether the parish will pay any thing towards it, being wholly in their power, this is all the reason that makes their consent requisite to the thing, And therefore if the Parson with the licence of the Ordinary,

Ordinary, or any other person with the consent of the Parson and the licence of the Ordinary, have a desire to set up rails at the altar at their own proper cost and charges, without concerning the parish to give any thing towards it, the parish is no way con, cerned either to give or deny their consent thereto.

The Church-wardens, in order to make the said repairs, are authorized by law to make a rate, and levy it upon the inhabitants and owners of the parish, 5 Coke, 67. Popham, 197. 1 Bulst. 20. Noy, 41, Latch, 203. Hell. 61. 130. Degge, P. 1. ch. 12. Sheppard Abr. Title Church-wardens.) But before they can do this, they must be legally chosen and legally sworn into the said office.

The Church-wardens are to be chosen every year in Easter week, (by Canon 90.) on the day which the Minister shall appoint, and give public notice of it in the Church the Sunday before, (unless where there is an immemorial custom for another day.) And at the time appointed, the Minister and parishioners being met together", the Church-wardens shall be chosen by the joint consent of both; but if they

The Parson or Vicar cannot adjourn the vestry, but the majority of the parishioners may. Fort. 168. Str. 1045.

Of common right the parishioners shall chuse one and the Parson the other. Stra. 1246. Cro. Jac. 532. Cro. Car. 551. Noy 31. 1 Vent. 267.

A Curate stands in the place of the Parson, for the purpose of nominating one Church-warden, and a Curate may make a presentment. Stra. 1246. and 2 Vent. 41.

If the Parson and parishioners neglect to appoint Church-wardens, yet the Ordinary has no jurisdiction; Stutter v. Freston, Str. 52. and if the Bishop or Ecclesiastical Court make an order that a select vestry shall choose, this does not exclude the other parishioners if they will be present at the vestry. Lane 21.

But by custom the election may be by a select vestry and not by the whole parish. Hard. 379. And where there is a custom for chusing Church-wardens, and it cannot take place, they must resort to the Canon. Stra. 145.

cannot