V.C. W.]

[V.C. W.

THIS was a demurrer.

The bill was filed by the plaintiff on behalf of himself and all other the inhabitants of the parish of St. Mary Extra, Hants, in order to restrain the defendants from granting a portion of the common land belonging to the parish, for the purposes of a burial ground.

The defendants were the Ecclesiastical Commissioners, who were the lords of the manor, and the vicar of the parish. The land in question was within the manor of Bitterne, and was known as Pear Tree Green; and the bill alleged that there had been, from time immemorial, a custom for all the inhabitants of the parish to enjoy the right of using the green for air, exercise, amusement, recreation, and all lawful village sports, games, and pastimes. In the year 1812 an Act (52 Geo. 3, c. 127) was passed, authorising the inclosure of lands in the parish of St. Mary Extra and the adjacent parish of Stoneham, called Bitterne Common. The Act recited that the Bishop of Winchester was lord of the manor of Bitterne; and by the 23rd section the commissioners were required to set apart one-sixteenth part of the waste lands to the Bishop of Winchester and his successors, in lieu of compensation for the waste lands. By the 25th section the commissioners were further directed to divide the residue of Bitterne Common, Weston Common, Weston Marsh, and all other waste lands between lands thereby intended to be divided, allotted, and inclosed in the parishes of Stoneham and St. Mary Extra (except Pear Tree Green, which consisted of 13a. 3r. 8p.) between the several owners and proprietors.

In 1846 a small portion of Pear Tree Green was annexed to the burial ground of Jesus Chapel, and inclosed for that purpose. In 1867 the necessity for providing more burial ground for the parish of St. Mary Extra being strongly felt by the parishioners, they appointed a committee to consider the best means of carrying out the object; and in June 1871 the committee made their report, recommending the purchase of a certain piece of ground of two and a half acres, which the owner was willing to sell for 501. At a vestry meeting of the parishioners, held on the 15th of the same month to consider the matter, it appeared that a gentleman in the neighbourhood had agreed to give the 501. required, and a resolution was passed that the offer should be accepted.

The resolution, however, was opposed by a few of the parishioners, who applied to the commissioners for leave to enlarge the present burial ground by a further enclosure of about an acre and three quarters of Pear Tree Green. In opposition to this application a memorial was prepared and presented to the defendants by other persons opposed to further encroachments on the green, and this was signed by the principal ratepayers and inhabitants of the parish. The commissioners at first refused to comply with the application; but ultimately the bishop having advised that a portion of Pear Tree Green should be enclosed as a burial ground, the commissioners assented.

A good deal of correspondence between the plaintiff and defendants followed on the subject, and eventually this bill was filed praying that it might be declared that the plaintiff and the other inhabitants of St. Mary Extra were entitled to the right to use the whole of the piece of ground reMAG. CAS.-VOL. VII.

for enjoyment, exercise, amusement, recreation, and for all lawful village sports, games, and pastimes; and that the grant which the defendants, the Ecclesiastical Commissioners, had made for the purpose of enclosure as aforesaid, was wholly void, and that the defendants were not entitled, nor were any of them, under the authority of the Act of 51 Geo. 3, c. 115, or otherwise, authorised to make any enclosure of any part of the said green or in any way to interfere with the said right of the plaintiff and the other inhabitants of the said parish.

That the defendants and every of them, their and every of their agents and servants might be restrained by the order and injunction of the court, from enclosing or granting, or purporting to grant, any authority to enclose any part of the said Pear Tree Green remaining unenclosed, or from in any way interfering with the enjoyment by the plaintiff and the other inhabitants of the parish of St. Mary Extra, of the rights to which they should be entitled as aforesaid.

To this bill the defendant, the vicar of the parish, demurred, for want of equity.

The defendants mainly relied on the provisions of 51 Geo. 3, c. 115.(a)

The defendants further relied on the 17th section of 52 Geo. 3, c. 127, which empowers the lord of the manor to extinguish commonable rights.

The plaintiff, on the other hand, maintained that the provisions of 51 Geo. 3, c. 115, were not intended to extend to the case of a village green so as to enable the lord of the manor to disregard and override the custmary rights of recreation which might exist thereon; and he submitted that the defendants could not, under the authority of the Act (especially having regard to the subsequent Act of 52 Gen. 3, c. 127), inclose any part of the common so as to destroy or interfere with

(a) Sect. 2. It shall be lawful for any person or persons bodies politic or corporate, seised of or entitled to the entire and absolute fee simple of any manor, by deed under the hand and seal, or hands and seals of any such person or persons, and under the seal or seals of any such body or bodies politic or corporate, and enrolled in the Court of Chancery in grant for the rector, vicar, or other ministers of any parish church, and his successors, any parcel or parcels of land not exceeding in the whole the quantity of five statute acres, parcel of the waste of such manor, and lying within the parish where such church or chapel shall be, or shall be intended to be erected, or within any extra parochial district, wherein any such chapel shall be, or shall be intended to be, erected for the purpose of erecting thereon, or enlarging any such church or chapel, or for a churchyard or burying ground, or enlarging a churchyard or burying ground for such parish or extra parochial place, or for a glebe for the rector, vicar, curate, or other minister of any such church or chapel to erect a mansion, house, or other buildings thereon, or make other conveniences for the residence of such rector, vicar, curate, or other minister, freed and absolutely discharged of and from all rights of common thereon, and any statute prohibiting any alienation in mortmain, or other statute, law, or custom to the contrary notwithstanding: Provided always, that no grant whatsoever shall be made of any land whatsoever for any of the purposes authorised by this Act, unless the church or chapel for the benefit whereof, or the minister whereof such grant shall be made, shall be a parochial church or chapel for the service of the United Church of England and Ireland, duly authorised by law, or a chruch or chapel duly consecrated for the service of such church, erected or to be erected for such purpose by and with the license and consent of the ordinary of the diocese wherein the same shall be.

DDD

Q. B.]

The VICE-CHANCELLOR.-The question raised by this demurrer is very simple, but at the same time very important. It is whether the commissioners, who are also lords of the manor, have power under the Act of 51 Geo. 3, c. 115, to discharge commonable lands, not only from ordinary rights, but also from customary rights, which strictly are not manorial. To hold that they have would be to put a forced construction on the Act, and as it were, by a sidewind, to sanction an invasion of the rights of the inhabitants of the parish. I am of opinion that the words of the statute are capable of receiving a perfectly satisfactory interpretation without applying to the custom claimed on behalf of the plaintiff. I must, therefore, hold that the lords of the manor have no power to destroy this custom, if it exists as alleged in the bill. The demurrer must therefore be overruled.

Solicitors for the plaintiff, Lee and Best. Solicitors for the defendants, Shum and Cross

man.

COURT OF QUEEN'S BENCH. Reported by J. SHORTT and M. W. MCKELLAR, Esqrs., Barristers-at-Law.

Tuesday, Nov. 26, 1872.

MOORE v. METROPOLITAN RAILWAY COMPANY. False imprisonment-Implied authority to officer of a railway company to give a passenger in charge -8 Vict. c. 20, ss. 103, 104. Plaintiff had taken a third-class return ticket from Notting Hill Gate to the Mansion House, and he was told by the station-master that, by the rules of the company, he might, if he liked, return from Moorgate-street instead of from the Mansion House. He availed himself of this privilege as far as Edgware-road, three stations short of that from which his return ticket was taken. Here upon giving up the second half of his ticket, the collector demanded 2d. extra payment. The plaintiff offered to pay under protest the sum demanded, if a receipt were given him. This was refused, and the ticket collector, acting under the advice of the station inspector, a railway official, caused the plaintiff to be taken to a police-station. Upon the facts the magistrate dismissed the charge, and in an action for false imprisonment the plaintiff was nonsuited on the ground that no evidence of express authority from the defendants to the inspector having been given, the defendants were not responsible for his mistake of law in taking the plaintiff into custody.

Held, upon a rule for a new trial, that there was evidence for a jury that the inspector was authorised by the company to exercise a discretion, which, by mistake, might include such an act as this, and the company might be liable for such a mistake.

THIS action was tried in Middlesex before Lush, J.,

[Q. B. who nonsuited the plaintiff. (See report of the case at Nisi Prius, 25 L. T. Rep. N. S. 951.)

The declaration stated that the defendants assaulted the plaintiff, and gave him into custody to a policeman, and compelled him to go to a police station, and be kept in prison for a long time, until he could procure bail for his appearance before a police magistrate, and thereupon compelled the plaintiff to appear the next morning before the said magistrate upon a charge by the defendants therein and theretofore made, namely, that he the said plaintiff, being a passenger on the defendants' railway, had refused, on arriving at Edgware-road Station, to deliver up his ticket and to pay his legal fare, and thereby had defrauded the company of twopence. Whereby the plaintiff suffered great pain of body and mind, and was exposed and injured in his credit and circumstances, and was prevented from carrying on his business, and from providing for his family by his personal care and attention, and incurred great expense, to wit, 51. for procuring the said bail as aforesaid, and otherwise in procuring his liberation and discharge from the said imprisonment.

The defendants pleaded not guilty.

It appeared that plaintiff had taken a third class return ticket from the Notting-hill-gate station to the Mansion-house, and the station master told him that by the rules of the company he might if he liked return from Moorgate-street instead of from the Mansion-house. He availed himself of this privilege as far as the Edgwareroad, three stations short of that from which his return ticket was taken. Here, upon giving up the second half of his ticket, the collector demanded 2d. extra payment. The plaintiff offered to pay under protest the sum demanded, if a receipt were given him. This was refused, and the ticket collector, acting under the advice of the station inspector, a railway official, caused the plaintiff to be taken to a police station. The only three offences for which sects. 103 and 104 of the Railway Clauses Consolidation Act 1845, provide detention are, first, "If any person travel or attempt to travel in any carriage of the company, or of any other company or party using the railway, without having previously paid his fare, and with intent to avoid payment thereof:" Secondly, "if any person having paid his fare for a certain distance, knowingly and wilfully proceed in any such carriage beyond such distance, without previously paying the additional fare for the additional distance, and with intent to avoid payment thereof:" Thirdly, "if any person knowingly and wilfully refuse or neglect, on arriving at the point to which he has paid his fare, to quit such carriage." The magistrate dismissed the charge made in the name of the company against the plaintiff. The defendants argued, and the judge at the trial held, that no evidence of express authority from the defendants to the inspector having been given, the defendants were not responsible for his mistake of law in taking the plaintiff into custody.

A rule had been obtained calling upon the defendants to show cause why the nonsuit entered at the trial should not be set aside, and a new trial had on the ground of misdirection, in that the defendants were liable for the false imprisonment by their officials of the plaintiff under sects. 103, 104, 108, 109, 110, and 154 of 8 & 9 Vict. c. 20, and upon the facts proved upon the trial.

M. Chambers, Q.C. showed cause.-Here the

Q. B.]

station inspector acted in opposition to the law, and such a proceeding was not authorised by the defendants. A similar case was Poulton v. The London and South Western Railway Company (L. Rep. 2 Q.B. 534; 17 L. T. Rep. N. S. 11), in which the plaintiff having taken a horse to an agricultural show by the defendants' railway, was entitled, under arrangements advertised by the defendants, to take the horse back free of charge on production of a certificate. The plaintiff accordingly produced a certificate, and the horse was put into a box without payment or booking, and plaintiff having taken a ticket for himself, proceeded by the same train. At the end of the journey the station master demanded payment for the horse, and the plaintiff refusing to pay, was detained in custody by two policemen, under the orders of the station master, until it was ascertained by telegraph that all was right. An action having been brought against the defendants for false imprisonment, it was held that a railway company has power to apprehend a person travelling on the railway without having paid his own fare, but has power only to detain the goods for nonpayment of the carriage; consequently, as the defendants themselves would have had no power to detain the plaintiff on the assumption that he had wrongfully taken the horse by the train without paying, there could be no authority implied from them to the station master to detain the plaintiff on this assumption, and they were therefore not liable for this act of the station master. On this ground the court distinguished the case from Goff v. The Great Northern Railway Company (3 E. & E. 672) and others mentioned in the argument. In Goff v. The Great Northern Railway Company, the evidence for plaintiff showed that he, having travelled on defendants' line with a return ticket from L. to W. and back, at the end of the return journey gave up to defendant's ticket collector at the L. station the return half of another ticket which had then expired, and which he had put in his pocket by mistake for the right one. The ticket collector thereupon took him to the ticket office, where he explained the mistake. Thence the collector took him to defendants' paid inspector of police at the station, and the collector and inspector thence took him to the office, also at the station, of the superintendent of the line, who, refusing to accept plaintiff's explanation, said to the inspector, "I think you had better take him; but first you had better obtain the concurrence of the secretary." The inspector thereupon left, but returned shortly afterwards (whether or not having obtained the secretary's concurrence did not appear), when he directed a police constable, also in defendants' pay, to take plaintiff before a magistrate on the charge. The constable did so, and the magistrate, plaintiff's story proving true, dismissed the complaint. Held, in an action against the company for false imprisonment, that the conduct of all defendants' other officers, in referring to the superintendent of the line as the superior authority, was sufficient evidence to go to the jury that he was an officer having authority to act for defendants in arresting plaintiff; and that the verdict of 50l. found for the plaintiff should stand. There the defendants' officer made a mistake of fact in not believing the plaintiff's story, and the court considered his authority went so far as to exercise a discretion in

[Q. B.

such a matter; but here the officer acted illegally, without mistake of fact, and therefore the defendants, having given him no authority so to do, ought not to be liable. Railway companies hire their servants to do lawful acts only, and they have no implied authority to make an illegal arrest; this is the effect of

Allen v. The London and South-Western Railway Com

pany, L. Rep. 6 Q. B. 65; 23 L. T. Rep. N. Š. 612; Roe v. Birkenhead, &c., Railway Company, 7 Ex. 36; Edwards v. London and North-Western Railway Company, L. Rep. 5 C. P. 445; 22 L. T. Rep. N. S. 656.

Lewis Glyn appeared for the plaintiff to support the rule, but was not heard.

BLACKBURN, J.-We need not trouble counsel for the plaintiff, for when the facts are seen we find them clearly governed by the decision in Goff v. The Great Northern Railway Company. My brother Lush therefore made a mistake at the trial, and should have allowed the evidence to go to the jury. The principle of Goff v. The Great Northern Railway Company has never been deviated from in cases which have been since decided. "In determining whether (p. 678) there should have been a nonsuit or not, we must say, whether, assuming all that was stated to be accurate, it afforded evidence on which the jury might properly find that the imprisonment was the act of some person acting within the scope of an authority conferred on him by the defendants." The court then proceeded to apply the principles laid down by the Exchequer Chamber in Giles v. The Taff Vale Railway Company (2 E. & B. 822) concerning the evidence of authority to deal with goods, and concluded that there was in that case evidence of authority which ought to have been submitted to the jury." By stat. 8 Vict. c. 20 ss. 103, 104, a penalty is imposed on any person travelling on a railway without having paid his fare, with intent to avoid payment thereof; and power is given to all officers and servants on behalf of the company to apprehend such person until he can conveniently be taken before a justice. In the ordinary course of affairs, the company must decide whether they will submit to what they believe to be an imposition, or use this summary power for their protection: and as, from the nature of the case, the decision whether a particular passenger shall be arrested or not must be made without delay, and as the case may be not of infrequent occurrence, we think it a reasonable inference that, in the conduct of their business, the company have on the spot officers with authority to determine, without the delay attending on convening the directors, whether the servants of the company shall or shall not, on the company's behalf, apprehend a person accused of this offence. We think that the company would have a right to blame those officers if they did not, on their behalf, apprehend a person, if it seemed a fit case; and, if so, the company must be answerable if, in the exercise of their discretion, these officers, on their behalf, apprehend an innocent person. The company ought to have a person of prudence to act in the capacity of station inspector, and, if he makes a mistake, the company ought to be responsible. Further, if a person in a responsible position is acting as if with authority from his erployers to do what he is about, that is some evidence of his having been trusted with the autho rity he assumes." "Applying these principles to the

present case, the plaintiff had a ticket which entitled him to go on by a train of the defendants to the Notting Hill Gate Station. He, however, stopped three stations short at Edgware-road; if this were done with any intention to defraud the company, it would have been a plausible proceeding on the part of an agent of the company, if he determined to give the plaintiff in charge under the first head of the 103rd section; as to whether the company's agent was justified in this instance in considering the plaintiff entertained an intention to defraud, that was a question of fact within the discretion which such an agent is employed to exercise. Mr. Chambers argued that the authority conferred by the company upon its officers to give a passenger in charge under this section, existed only when the passenger actually broke the law; but in that case no action of this kind against a company could ever succeed. It is upon the ground that authority must be conferred by the company upon some officer to exercise a discretion in enforcing section 104, that the company should be liable for any improper use of that discretion. The case of Poulton v. The London and South Western Railway Company was relied upon by the defendants, but it will be found upon investigation that the decision there is not opposed to this; for there was no ground whatever for the station master's supposing he had any authority to give a passenger in charge because his goods, with which he was travelling, had not been paid for. In the present case, and also in Goff v. The Great Northern Railway Comthe officer's authority included the exercise pany, of this discretion, and I think the present case is within the decision of the court in Goff v. The Great Northern Railway Company. It has been said that this is a hard case upon the company, but it would be surely harder upon the individuals who were victims, if a company could evade liability by ignoring the authority of their officers whenever those officers made a mistake. I say nothing about section 154, because I think sections 103 and 104 show that the plaintiff ought not to have been nonsuited; and I think that what was done by the station inspector was an act which the jury might infer was within the authority conferred upon him by the company.

MELLOR, J.-I am of the same opinion. I am satisfied there was evidence in this case for a jury to find that the inspector had authority to exercise a discretion which might by mistake result in this arrest. If there were no pretence for an officer's supposing a passenger guilty of a breach of the statute, the company might not be liable for his improper proceeding; but the case of Poulton v. London and South-Western Railway Company is clearly distinguishable from the present, which, I think, is included in the principle established by Goff v. The Great Northern Railway Company.

LUSH, J.-I also am of opinion that the view I took of this case at the trial was erroneous; I cannot now distinguish the facts from those of Goff v. The Great Northern Railway Company. Rule absolute.

Attorney for plaintiff, W. Walters.
Attorney for defendants, Burchells.

[C. P.

COURT OF COMMON PLEAS. Reported by H. H. HOCKING and H. F. POOLEY, Esqrs., Barristers-at-Law.

Wednesday, Nov. 20, 1872.

REGISTRATION APPEAL.

SIMEY (app.) v. MARSHALL (resp.).

Equitable freehold.

-

30 & 31 Vict. c. 102, 8. 5, sub-sect. 1-Freehold tenement-8 Hen. 6, c. 7Hospital, younger brother of-His estate in the lands belonging to the hospital.

J. B. claimed a county vote in respect of freehold land, freehold coal mines, freehold rentcharges, or ground rent. The claimant was one of the younger brethren of a hospital, the master and ancient brethren of which were a corporation seised of freehold lands and tenements within the county. By the constitution of the hospital it was provided that there were to be a certain number of younger brethren, possessed of certain qualifications as to age, character and property, who were to be appointed by the master, and removable for certain faults by the bishop of the diocese. The lands of the hospital, the legal estate in which was in the corporation, were to be under the direction and management of the master, who was to receive and keep account of the revenues thereof, and in the first place pay thereont the land-tax, &c., and all outgoings affecting the same; and after that carry to his own account one-third of the net residue, then pay 251. to each of the ancient brethren, and 401. to the chaplain for his salary, and, after making these payments, was to divide the residue between the younger brethren of the hospital in equal shares, yet so, nevertheless, that no younger brother should receive more than 251. a year. The number of the brethren, younger at the time of the claim being made, was twentythree. The number might be raised by the authorities of the hospital, but in point of fact it never had been raised so as to reduce the share of each younger brother below 241. per annum. Held, that the claimant was not entitled to vote in respect of his rights as a younger brother, he having no estate, legal or equitable, in the lands belonging to the hospital; and his right to receive the annual payment, being not a free tenement, but only a right to a certain share of money in the hands of the master.

ON appeal from the revising barrister for the northern division of the county of Durham, the following case was stated:

:

At a court, &c., holden, &c., James Bennett was duly objected to as a voter for the said division. The claim of the said James Bennett was in the following form :

unknown, and the foundation charter has long been lost.

2. By a refoundation charter dated 4th Jan. 1610, King James the First incorporated the hospital, which then consisted of one master, and three brethren by the title of "The Hospital of King James at Gateshead.'

The charter provides that the rector of Gateshead should for ever be the master of the hospital; that there should be three poor and needy men, bachelors or widowers advanced in life, sustained, maintained, and relieved in the hospital, who should be called the brethren, and should remain, be sustained, and relieved during their natural lives. The charter provides that when and so often as it should happen that any of the brethren should die or be removed from the hospital for any cause prescribed by the ordinances, provisions, and constitutions of the hospital, or in any other manner whatsoever, should be removed from the hospital, or should withdraw of his own accord, that then the master should within fourteen days nominate and place in actual possession any other fit person. The charter further provides that the Bishop of Durham and his successors should from time to time revise the ancient statutes, laws, ordinances, and constitutions of the hospital, and make such good, fit, and wholesome statutes in writing concerning the government and direction of the master and brethren as should not be contrary or repugnant to law. And by the charter, the hospital, with the garden and other lands (the greater part of which still belong to the hospital) were granted to the master and brethren and their successors, to have, hold, and enjoy the same, to the sole and proper benefit and use of the master and brethren and their successors, in free, pure, and perpetual frankalmoign for ever. It was also provided that after the death of the then master his successors should have and enjoy for their own use and benefit one full third part of the rents, revenues, and profits of all and singular the lands, tenements, and hereditaments thereby granted to the hospital, and the brethren and their successors should have and enjoy for their own use and maintenance the other two parts of such rents, revenues, and profits.

3. An Act of Parliament (which is to form part of this case) was passed in 51 Geo. 3 (1811), for enabling the master and brethren of the hospital to grant leases, and to enable the Bishop of Durham to make statutes and ordinances for the government of the hospital. This Act recited the refoundation charter, and that the master and brethren were seised of certain lands in Gateshead (which are specified in the schedule thereto) and that the Bishop of Durham was the patron of the mastership of the hospital, as annexed to the rectory of Gateshead, and that the master of the hospital had the appointment of the brethren in case of vacancy. It also recites that no statutes or ordinances of any kind were then known, and in respect that the estate of the said hospital was capable of considerable improvement, it was also expedient that statutes should be made for the government of the hospital, and that the benefits of the hospital should be extended to a greater number of poor aged men in furtherance of the benevolent intentions of the founder thereof. The Act then, after giving a power of leasing to the master and brethren, proceeds to enact that the Bishop of Durham may from time to time by writing under his hand make and establish such

good, convenient, and wholesome statutes, laws, ordinances, and constitutions, as well concerning the Divine service to be performed in the hospital and the allowance to be made for the same, as touching the government and direction of the master and brethren, and providing for the repairs of the estate of the hospital, as also for increasing the number of the poor and aged brethren, and such statutes, laws, ordinances, and constitutions from time to time to revise, alter, and amend, so as the same be not contrary either to the laws of the realm or to the charter, except as to the increase of the number of the brethren. And it further enacts that all such brethren as should be from time to time added as aforesaid, should be named appointed, and admitted, and from time to time for ever be filled up in the same manner as is prescribed by the charter for naming, appointing, and admitting the three ancient brethren, and all such additional brethren should be called "the younger brethren," and should not be deemed or taken to constitute any part of the said body corporateprovided that nothing in the Act should authorise the making of any statute which should reduce or lessen the income of the then present master and three brethren from the rents and profits of the estates belonging to the hospital, but that they should during their lives receive for their shares of the future rents and profits of the estates, as much as they then actually received from such rents and profits, and that the shares of the younger brethren should always be less than the shares of the master and the three ancient brethren.

4. The schedule to this Act includes the whole of the lands which still belong to the hospital, and in respect of which the chaplain and the younger brethren claim to vote.

means

5. On the 17th Oct. 1811, Shute (Barrington) Bishop of Durham, made certain statutes and ordinances, under the power contained in the Act of Parliament, by which it is ordered (amongst other things) that in addition to three ancient brethren, who, together with the master, then constituted the corporate body, there should be ten younger brethren who should be entitled to the advantages after mentioned; that no person should be capable of being appointed one of the younger brethren except single men, of the age of fiftysix and upwards, not possessing more than 201. per annum, of unexceptionable life and conversstion, regular attenders of the Church of England, and frequenters of the Holy Sacrament; that the brethren should attend divine service regularly when opportunity offers, and should be sober, discreet, and regular in life and conversation; that in case of one or more of the brethren being guilty of drunkenness or any other immorality, the master should certify the same to the bishop, who should proceed, either by himself or by the Archdeacon of Durham, or by other clergymen of the diocese, to examine into the circumstances of the case, and should either remove him from the hospital or subject him to such lesser punishment as he should think fit; that the brethren should from time to time be appointed by the master; that such younger brethren as should reside within a convenient distance of the chapel, should have proper seats prepared and set apart for their accommodation, and should regularly attend divine service, except when prevented by illness or other lawful impediment admitted by the master; that for performance