N. S. 175. See Purnell v. Wolverhampton New Waterworks Company, 10 C. B. 576; Hildreth v. Adamson, 8 W. R. 470; Busby v. Chesterfield Waterworks, &c. Company, 1 El., Bl. & El. 176.)

6. OF THE RIGHT TO PEWS.

Of common right, the soil and freehold of the church is the parson's; the Right to pews use of the body of the church, and the repair of it, common to the parishion- founded on ers; and the disposing of the seats therein the right of the ordinary. (Hob. faculty or pre69; Gibs. Cod. tit. 9, c. 4.) scription.

According to the common law the rector, whether endowed or spiritual only, is entitled to the chief seat in the chancel unless some other person be in a condition to prescribe for it from time immemorial. The ecclesiastical court, in the exercise of its ordinary authority, would allot to him such sitting and protect him against the disturbance of such right. (Spry v. Flood, 2 Curt. 357.)

An exclusive title to pews and seats in the body of the church may be maintained in virtue of a faculty, or by prescription, which is founded on the presumption that a faculty had been heretofore granted. All other pews and seats in the body of the church are the property of the parish; and the churchwardens, as the officers of the ordinary, and subject to his control, have authority to place the parishioners therein. No precise rules are prescribed for the government of churchwardens in the use of this power, for its due exercise must depend on a sound judgment and discretion applied to the circumstances of the parish. (Report of Eccl. Commrs., Feb. 1832, p. 48.)

By the general law, and of common right, all the pews in a parish church Disposal of pews. are the common property of the parish; they are for the use in common of the parishioners, who are all entitled to be seated orderly and conveniently, so as best to provide for the accommodation of all. The distribution of seats rests with the churchwardens, as the officers, subject to the control of the ordinary. (12 Rep. 105; 3 Inst. 202; 3 Hagg. Eccl. Rep. 733.) By the general law, the use of all the pews belongs to the parishioners; they are to be seated therein, in the first instance, by the churchwardens; the power of the latter, however, is subject to the control of the ordinary, who is to see that the churchwardens exercise their authority discreetly, for the proper accommodation of the parishioners at large. This is the law, not merely to be found in ecclesiastical authorities, but is the common law of the land, as laid down by the highest common law authorities. (Blake v. Usborne, 3 Hagg. Eccl. R. 733.) It will be sufficient to refer to Lord Coke. (12 Rep. 105; 3 Inst. 202.) The churchwardens have a discretionary power to appropriate the pews in the church amongst the parishioners, and may remove persons intruding on seats already appropriated. (Reynolds v. Monkton, 2 M. & Rob. 384.) The parishioners cannot prescribe to dispose of pews in exclusion of the ordinary. (1 Salk. 167, pl. 7.) Neither the minister nor the vestry have any right whatever to interfere with the churchwardens in seating and arranging the parishioners, as often erroneously supposed; at the same time the advice of the minister, and even sometimes the opinion and wishes of the vestry, may be fitly invoked by the churchwardens, and to a certaint extent may be reasonably deferred to in this matter. The general duty of the churchwardens is to look to the general accommodation of the parish, consulting, as far as may be, that of all the inhabitants. The parishioners, indeed, have a claim to be seated according to their rank and station; but the churchwardens are not, in providing for this, to overlook the claims of all parishioners to be seated, if sittings can be afforded them. Accordingly they are bound, in particular, not to accommodate the higher classes beyond their real wants, to the exclusion of their poorer neighbours, who are equally entitled to accommodation with the rest, though they are not entitled to equal accommodation, supposing the seats to be not all equally convenient. (2 Addams, R. 425, 426.)

The incumbent has no authority in the seating and arranging the parishioners beyond that of an individual member of the vestry, and which his

station and influence in the parish naturally give him. He may properly object to a plan which is generally inconvenient, which diminishes the accommodation in the church, which disfigures the building, which renders it dark and incommodious. In every case of this description, it is very proper he should make a representation to the ordinary; but as to the mere arrangement of seats, if the parishioners can settle that among themselves, and to their own satisfaction, and can agree about the expense, there seems but little necessity for the interference of the incumbent; the expense is that of the parishioners; the churchwardens are bound to repair with the consent of the vestry; it is not the vicar, but the vestry which appropriates the seats: the general superintendence and authority in allotting them rests with the ordinary. (1 Phill. R. 233.)

The general right then being in the parish and the ordinary, any particular rights in derogation of these are stricti juris; it is the policy of the law that few of these exclusive rights should exist, because it is the object of the law that all the inhabitants should be accommodated; and it is for the general convenience of the parish that the occupation of pews should be altered from time to time, according to circumstances. A possessory right is not good against the churchwardens and the ordinary: they may displace, and make new arrangements, but they ought not without cause to displace persons in possession; if they do, the ordinary would reinstate them the possession therefore will have its weight,-the ordinary would give a person in possession, cæteris paribus, the preference over a mere stranger. (1 Phill. R. 324.) The churchwardens are not justified in dispossessing any one of a sitting which he has enjoyed for a time, without giving notice of their intention, and offering an opportunity for explanation. (Horsfall v. Holland, 6 Jur., N. S. 278.)

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A possessory right is sufficient to maintain a suit against a mere disturber. (Spry v. Flood, 2 Curt. 356.) The fact of possession implies either the actual or virtual authority of those having power to place. The disturber may show that he has been placed there by this authority, or must justify his disturbance by showing a paramount right,-a right paramount to the ordinary himself; namely, a faculty by which the ordinary has parted with the right; or if there be no proof of a faculty, there may be proof of prescription, and such immemorial usage as presumes the grant of a faculty. (1 Phill. R. 324.) Where the prescription is interrupted, the jury are not bound to presume a faculty from long undisturbed possession. (Morgan v. Curtis, 3 M. & R. 389.) On the expiration of a faculty, as where one was granted for ninety-nine years, the right of the parishioners to the use of the pew revives. (3 Hagg. Eccl. R. 733.) A faculty (for annexing a pew to a messuage) obtained by surprise and undue contrivance may be revoked. (2 Hagg. Eccl. R. 417.)

A prescriptive right must be clearly proved; the facts must not be left equivocal; and they must be such as are not inconsistent with the general right. In the first place, it is necessary to show that the use and occupation of the seat have been from time immemorial appurtenant to a certain messuage, not to lands; the ordinary himself cannot grant a seat appurtenant to lands. Secondly, it must be shown that if any acts have been done by the inhabitants of such messuage, they maintained and upheld the right. At all events, if any repairs have been required within memory, it must be proved that they have been made at the expense of the party setting up the prescriptive right. The onus and beneficium are supposed to go together; mere occupancy does not prove the right. What might be the effect of very long occupancy, where no repairs have been necessary, does not appear to be decided. It is a common error to suppose that by mere occupancy pews become annexed to particular houses. In country parishes the same families occupy the same pews for a long time, but they still belong to the parish at large: if, however, it is shown that the inhabitants of a particular house have repaired, that fact establishes that the burthen and benefit have gone together, and is inconsistent with the right of the parish still to claim the benefit, and is evidence of the annexation of the pew. Thus the uniform and exclusive possession of the inhabitants of a particular messuage connected with the burthen of maintaining and repairing the seat is evidence sufficient to establish a prescriptive title. (1

Phill. R. 325-6.) To exclude the jurisdiction of the ordinary from the disposal of a pew, it is necessary, not merely that possession should be shown for many years, but that the pew should have been built and repaired time out of mind. (1 T. R. 428.) The strongest evidence of that kind is the building and repairing time out of mind; but mere repairing for thirty or forty years will not exclude the ordinary. The possession must be ancient, and going beyond memory, though on this subject the high legal memory, even before the act 2 & 3 Will. 4, c. 71, was not required. (1 Hagg. Cons. R. 322.) Twenty years' adverse possession seems to bar the right to a pew. (1 Phill. R. 328.)

On application for a faculty to repair and repew a church, a parishioner appeared to the decree and prayed a faculty might not be granted without a proviso that a pew claimed to be held by him by prescription should not be removed or altered. The prescription was denied. It was held, that a prima facie title by prescription was established, and that the faculty should be issued with the proviso. (Knapp v. Parishioner of St. Mary, Willesden, 2 Rob. Ecc. Rep. 358; 15 Jur. 473.) Evidence of repair to a pew claimed by prescription is not absolutely necessary, as no repair may have been made within the period of any one living. (Ib.)

Where the members of a corporation have as such occupied a particular pew in the parish church, the repairs of it may be properly charged on the borough fund. (Reg. v. Mayor, &c. of Warwick, 10 Jur. 262; 15 Law J., Q. B. 306.)

Extra-parochial persons cannot establish a claim to seats in the body of a parish church without proof of a prescriptive title, and therefore if they sue in the ecclesiastical court to be quieted in the possession of such seats, the court of K. B. will grant a prohibition, although it seems that such persons cannot establish such a claim even by prescription. (Byerly v. Windus and others, 5 B. & C. 1; S. C., 7 Dowl. & Ryl. 564. See Hallack v. University of Cambridge, 1 Gale & D. 100; 1 Q. B. 593, as to prohibition against granting a faculty.) A pew in an aisle or chancel may belong to a non-parishioner, for the case of an aisle or chancel depends upon, and is governed by, other considerations. (2 Addams, R. 427.)

A pew annexed by prescription to a certain messuage cannot, as is often erroneously conceived, be severed from the occupancy of the house, but passes with the messuage, the tenant of which for the time being has de jure the prescriptive right to the pew, (1 Hagg. Cons. R. 319; 1 T. R. 430; 3 M. & R. 334; 2 Add. 428,) which cannot be sold nor let without a special act of parliament, (1 Hagg. Eccl. R. 319, 321,) or under the provisions of the Church Building Acts. (See 58 Geo. 3, c. 45, ss. 65, 66, 75–79; 59 Geo. 3, c. 134, ss. 26, 32; 8 & 9 Vict. c. 70, s. 11.) Where an occupier of a pew ceases to be an inhabitant of the parish, he cannot let the pew with, and thus annex it to his house, but it reverts to the disposal of the churchwardens. (1 Hagg. Eccl. R. 34.) A person who has permission from the churchwardens to sit in a pew temporarily, and in order, by keeping possession for the future tenant, to carry into effect the conditions of sale of a house with which the pew has for above a century been held under an expired faculty, has no possession on which he can bring a suit for perturbation of seat against a mere intruder, such permission by the churchwardens being illegal, as confirming the sale of the pew. (Blake v. Usborne, 3 Hagg. Eccl. R. 726.) Customs pleaded, "that pews are appurtenant to certain houses, and are let by the owners to persons who are not inhabitants of the parish," are bad. (1 Hagg. Cons. R. 317.) Custom, "that persons who had not pews appurtenant pay rent for seats, which is applied in payment of the parish rate," is a practice which has been constantly reprehended by the ecclesiastical courts, and discouraged as often as set up. (1 Hagg. Cons. R. 317.) But if a house to which a pew is appurtenant be let to a parishioner, in that character he is clearly entitled to the pew. (2 Add. 428.)

It was held, that sect. 51 of the local statute 51 Geo. 3, c. 151, which enacts, that the said vestrymen (of St. Marylebone) shall set out and appropriate such a number of seats for the gratuitous accommodation of the poor of the said parish for the time being, and also of such other pews

Action for dis

or seats for the use of the parishioners of the said parish as the said vestrymen shall think necessary, proper and convenient, is imperative upon the vestrymen, and empowers them to set out and appropriate the pews (other than those of the poor) without restriction, and not subject to the superintendence of the ordinary. (Spry v. Flood, 2 Curt. 362.)

It was held, that by the 52nd sect. of 51 Geo. 3, c. 151, which enacts, that it shall be lawful for the vestrymen of St. Marylebone, if they shall think proper, to let the pews, &c., or any of them, except the pews or seats to be appropriated for the gratuitous accommodation of the poor of the said parish for the time being as before mentioned, to such persons only who shall be inhabitant householders within the said parish, the vestrymen were empowered to let all the pews save those for the poor, and consequently to remove the rector from one of two pews of which he had been in possession from the time of his induction, and to let it to another inhabitant householder. (Spry v. Flood, 2 Curt. 364.)

Where a pew is claimed as annexed to a house by faculty or prescription, turbance of pews. the courts of common law exercise jurisdiction, on the ground of the pew being an easement to the house, and the proper remedy for a disturbance is an action on the case. (Mainwaring v. Giles, 5 B. & Ald. 361.) Where the pew is in a chancel, the freehold of an individual, the right to it is triable at common law. (May v. Gilbert, 2 Bulstr. 151.) The ecclesiastical court has jurisdiction in all suits respecting pews; but where prescriptive rights come in question, prohibition will be granted on the application of either party, for the purpose of having the prescription tried by a jury. (Report of Eccl. Commrs., p. 49.) If a man claiming title by prescription to an aisle, chancel, &c., as his freehold, or to a pew or seat in the body of the church, or in an aisle, &c., as appurtenant to a house in the parish, is disturbed therein by the parson, ordinary, or churchwardens, by a suit in the spiritual court, he may have a prohibition, if he suggest as grounds for it that he or those whose estate he hath, built, or time out of mind repaired, and therefore had the sole use of such aisle, or of such pew or seat; for the party has a right to a trial of the prescription in a temporal court. (See 1 Burn's Eccl. Law, 8th ed., 366, 367; Witcher v. Cheslam, 1 Wils. 17; Corwen v. Pym, 12 Rep. 105; Jacob v. Dalton, 2 Raym. 1755; Boothby v. Bailey, Hob. 69; Francis v. Lee, Cro. Jac. 366; Day v. Beddingfield, Noy's Rep. 104; Buxton or Bunton v. Bateman, 1 Sid. 89; S. C., 1 Lev. 71; Sir T. Raym. 52; Crook v. Sampson, 2 Keb. 92; Brabin v. Tradum, Poph. 140; 2 Roll. Abr. 287, 288.)

The uninterrupted possession of a pew in a church for twenty years affords a presumptive evidence of a legal title by prescription, or by a faculty against a wrong-doer. (Darwin v. Upton, 2 Wms. Saund. 175 c.) But if the right was claimed as appurtenant to an ancient messuage the claim would, before the stat 2 & 3 Will. 4, c. 71, be rebutted by proof that the pew began to exist within time of legal memory. (Griffith v. Matthews, 5 T. R. 296.) In an action on the case for disturbing the plaintiff in the possession of a pew in a church, which the plaintiff and those under whom he claimed had been in the uninterrupted enjoyment of for thirty-six years, but which appeared in evidence to have been an open pew before that period; the judge recommended the jury to presume a title in the plaintiff after so long a possession as thirty-six years, and the Court of King's Bench afterwards, on a motion for a new trial, held the direction of the judge proper. (Rogers v. Brookes, 1 T. R. 431, n.) A pew in a parish church was claimed in respect of an ancient messuage; and it was proved, that, so far as living memory extended, the pew in question had been one of three pews adjoining each other, and under one and the same claim of right, viz., in respect of the said ancient messuage: it was held, that proof of repairs done to one of the pews, not that in question, was evidence as to all, and therefore as to that in question. (Pepper v. Barnard, 12 Law J., N. S., Q. B. 361; 7 Jur. 1128.) The pew must be laid in the declaration as appurtenant to a messuage in the parish, otherwise a bare possession of the pew for sixty years and more is not a sufficient title to maintain an action on the case for disturbing the plaintiff in his enjoyment thereof, but he must prove a prescriptive right or faculty. (Stocks v. Booth, 1 T. R. 428.) So where a pew

in a chancel, claimed in right of a messuage, was shown to have been erected on the site of old open seats in 1773, and there was no evidence of any faculty or search for one at the proper places; it was held, that the judge rightly directed the jury, that the evidence of the former open state of the seats destroyed the prescription, and left it to them to say whether, upon the evidence merely of long undisturbed possession, any faculty existed; and a new trial was refused. (Morgan v. Curtis, 3 M. & Ry. 389.)

The grant of part of the chancel of a church by a lay impropriator to A., his heirs and assigns, is not valid in law, and therefore such grantee, or those claiming under him, cannot maintain trespass for pulling down his or their pews there erected. (Clifford v. Wicks, 1 B. & Ald. 498.)

But the churchwardens have not, as against the incumbent of a church or chapel, a joint possession of it, so as to disable him from maintaining trespass against them for acts of violence in pulling down pews; and a chapelwarden of a parochial chapelry has not, by virtue of his office, any authority to enter the chapel and remove the pews without the consent of the perpetual curate. (Jones v. Ellis, 2 Y. & J. 265.) The perpetual curate of an augmented parochial chapelry has a sufficient possession whereon to maintain trespass for breaking and entering the chapel and destroying the pews. (Ib.)

As well priority in a seat as a seat itself in the body of a church may be claimed by prescription, as belonging to a house, by the inhabitants of it, who have repaired the seat time out of mind, and an action on the case for a disturbance lies at common law. (Carleton v. Hutton, Noy, 78; Gibs. 221.) And a pew in the body of the church may be prescribed for as appurtenant to a house out of the parish. (Davis v. Witts, Forr. R. 14; Lousley v. Hayward and another, 1 Younge & Jerv. 583.)

Where the action is brought against a stranger, the plaintiff is not bound to state in his declaration that he has repaired the pew, though it is otherwise when the action is brought against the ordinary; in which case a title or consideration must be shown in the declaration and proved, as the building or repairing of the pew. (Kenrick v. Taylor, 1 Wils. 326; Ashley v. Freckleton, 3 Lev. 73; see Fiske v. Rovitt, Lofft, 423; Com. Dig. Action upon the Case for Disturbance, (A. 3); Gibs. 197, 198.)

The right to sit in a pew may be apportioned, and therefore where by a faculty, reciting that A. had applied to have a pew appropriated to him in the parish church in respect of his dwelling-house, a pew was granted to him and his family for ever, and the owners and occupiers of the said dwelling-house, which was afterwards divided into two: it was held, that the occupier of one of the two (constituting a very small part of the original messuage) had some right to the pew, and in virtue thereof might maintain an action against a wrong-doer. (Harris v. Drewe, 2 B. & Ad. 164.)

It seems that a bill in equity will not lie to be quieted in the possession of a pew, though there is a decree for it before the ordinary. (Baker v. Child, 2 Vern. 226.)

A bill was filed by a single parishioner against some of the churchwardens of the parish, alleging an intention on the part of the defendants to execute work in the church which would be injurious to himself, and praying an injunction; the plaintiff did not allege that he was a parishioner and that he was in the habit of attending Divine Service in the parish church. It is questionable whether this is a private nuisance, and whether such a bill can be sustained by a single parishioner against the churchwardens. (Woodman v. Robinson, 2 Sim. N. S. 204.) See Cardinall v. Molyneux, 7 Jur., N. S. 854, as to proceedings against an incumbent who removed pews and substituted chairs in the church.

A man may prescribe that he is tenant of an ancient messuage, and ought to have a separate burial in a particular vault within the church. (Com. Dig. Cemetery, (B.).) It seems that the same rules are applicable to vaults as to pews. (Bryan v. Whistler, 8 B. & C. 293; S. C., 2 M. & Ryl. 318; see Francis v. Ley, Cro. Jac. 366; Gibs. Cod. 542.) As to Rights of Burial, see Har. Index, tit. Ecclesiastical Law, XVII., Burial.