Statement in the Declaration.

Disturbance of an Aisle.

should exist; it being the object of the law, that all the inhabitants should be accommodated. (a)

In an action against the Ordinary for disturbing the plaintiff in his Pew, he should claim it, in his Declaration, as appurtenant to a house or messuage in the Parish. (6) He should also allege that he repaired it, but this is not necessary in a dispute with a stranger. (C)

In actions on the case for disturbance, resting on Prescription for an Aisle, it has been held, that it need not be alleged or proved that the owners were accustomed to repair ; for, by common law, the owners are bound to repair Aisles, and so need not show repair, or may have them for other reasons than repairing, as being Founders, or contributing to the building them. (d)

If two pretend to have title to a Seat by Prescription, and thereupon jointly bring an action on the case for a disturbance, and declare upon a joint right and Prescription ; if upon the evidence it shall appear that they are not Joint-tenants, but Tenantsin-common, they cannot recover, but must be nonsuited. Because such evidence does not maintain the title upon which they bring their action, and as Tenants-in-common they cannot make a joint Prescription, but ought to prescribe severally. (e)

It is impossible to determine a priori what Evi

A joint Prescription.

Necessary
Evidence.

(a) Pettman v. Bridger, i Phill. 324.

(6) Stocks v. Booth, 1 T. R. 428.

(c) Kenrick v. Taylor, 1 Wils. 326; 3 Lev. 73.

(d) Buxton v. Bateman, 1 Keble, 370; Tyrr. Prid. 104.

(e) See Snelgrave v. Brograve, Palm. 161; Watson's Clergyman's Law, 394.

a

as laid.

Evidence.

а

dence will or will not be sufficient to support a prescriptive right to a particular Pew. (f)

When a Prescription is alleged in bar, it is one Prescription entire thing, and must be proved as laid. (g)

must be proved The amount of Evidence of possession and use Amount of necessary to establish a claim to a Seat or Pew in Church varies in each particular case. (h)

As, for instance, it is for the jury to say upon the Question for evidence whether they will presume a Faculty ; but

the Jury. it would take very strong Evidence to induce a belief that the Bishop would grant a Faculty to erect a Seat in a Chancel belonging to a lay or clerical Rector. (*)

A prescriptive right, however, must be clearly The right proved, the facts must not be left equivocal, and must be clearly they must be such as are not inconsistent with the general right. (k)

But in very many instances these exclusive rights As it is often are merely supposititious; and would turn out,

supposititious. upon investigation, to be no rights at all. (1)

A person claiming a prescriptive right to a par- Pew must have ticular Pew, must show its annexation to the house been imme

morially apor messuage time out of mind. (l) Therefore an occu- purtenant to a pation by a person and his ancestors, even for 110 years, has been held insufficient, it appearing that at the commencement of that time, the Pew was annexed by an agreement with the Vestry. (m)

(f) Griffith v. Matthews, 5 (k) Pettman v. Bridger, 1 T. R. 298.

Phill. 325. (9) Ricketts v. Salwey, 2 B. (1) Fuller v. Lane, 2 Add. & A. 366, 367.

428 ; Pettman v. Bridger, 1 Phill. (h) Pepper v. Barnard, 7 Jur. 325.

(m) Fuller v, Lane, 2 Add. (i) Morgan v. Curtis, 3 M. & Ry. 390.

house.

And not to lands only.

a

Whether it be appurtenant to a house is a question for the Jury. Occupation alone not sufficient,

Lapse of time.

Because a Prescription for a Pew as an annexation to an estate is a legal absurdity, as it can only be for a house, and never for lands only; and he who occupies the house is entitled, and not he who possesses the land ; and that though reparation has been pleaded. (n)

And whether a Pew, under all the circumstances of the case, is appurtenant to an ancient house, is a question for the consideration of the Jury. (0)

But as a Pew would generally go with a house, mere occupation alone is not sufficient to force the Jury to find a right. (p)

Lapse of time, however, is a circumstance which the Jury may consider, and which may fairly be pressed upon them. (p)

Possession of a Pew in a Church for above sixty years is not a sufficient title to maintain an action on the case for disturbance in the enjoyment of it; the plaintiff must prove a prescriptive right, or a Faculty, and should claim it in his Declaration as appurtenant to a messuage in the Parish. (9)

The reason why a Pew has for a long time been unoccupied by the owner, may be explained to the Jury. Thus, where the plaintiff was of the Roman Catholic religion, and her servants had frequently been of the same persuasion, the use of two Pews belonging to the house was much less than, under other circumstances, would have been expected;

Sixty years' possession.

Non-user accounted for.

.

(n) Woolcombev. Ouldridge, 3 Add. 7.

(0) Griffith v. Matthews, 1 T. R. 297.

(p) Morgan v. Curtis, 3 M. & Ry. 394.

(9) Stocks v. Booth, 1 T. R. 428.

and this was stated as accounting for the nonuser. (9)

Where a Pew was prescribed for in respect of a Possession House, affidavits were made that the person so pre- habitancy.

without inscribing, was not nor is an inhabitant there; but it was held that possession only, without living there, is enough. (s)

The fact of a Pew having formerly been open The Pew would operate very strongly against any claim to formerly open. a Prescription, because the difference between an open and a closed Pew is so strong, that the probability is, that, so soon as the party had ascertained his rights, he would enclose; therefore Mr. Justice Parke was of opinion that the fact of the Seat having formerly been open, destroys the Prescription. (t).

In Pepper v. Barnard, (u) the Court would not Proof of decide whether, in an action against Churchwardens Repairs. for disturbance of a Pew, proof of Repairs is necessary.

But Sir John Nicholl has laid it down, that parties Done from claiming prescriptive rights to particular Pews, must time to time. plead and prove the reparation of them from time to time, by the tenants of the respective houses or messuages, in order to make out their prescriptive title. (x)

And it must be shown, that if any acts have been By the inhabidone by the inhabitants of such house, they have tants of such

(r) Pepper v. Barnard, 7 Jur. (u) Pepper v. Barnard, 7 Jur. 1129

1129. (8) Vin. Abr. “Prohibition"

(x) Fuller v. Lane, 2 Add, (G); S. C. Anon. 12 Mod. 40.

427 ; Woolcombe v. Ouldridge, (t) See Morgan v. Curtis, 3 3 Add. 6. M. & Ry. 390, 392.

.

Repair of one Pew evidence as to all.

always 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 must go together-mere occupancy does not prove the right. (y)

An action on the case was brought against the Churchwardens of Great Dunnow, in Essex, for disturbing the plaintiff in the use of a Pew in the Parish Church, claimed in respect of an ancient messuage in the Parish. It was proved by evidence, that the house in respect of which the claim was made was ancient; and it further appeared, that, so far as living memory extended, there had been three Pews adjoining each other—one used by the family, another by their servants, and a third by a farmer residing on a farm, the house belonging to which was the ancient mansion of the family. It was held that proof of Repairs done to one of these Pews, was evidence as to all, and, therefore, included the Pew in question. (2)

What might be the effect of a very long occupancy, where no Repairs have been necessary, does not appear to have been decided. (a)

It has been held a good Prescription to say, “ that time out of mind THE CORPORATION did repair such an Aisle of the Church, ratione cujus, the Mayor and Alderman sat there.” For though the

Where no Repairs have been necessary. Repair by a Corporation.

(a) See Pettman v. Bridger, 1 Phill. 325.

(y) Pettman v. Bridger, 1 Phill. 325.

(2) Pepper v. Barnard, 7 Jur.