right be in the whole body, the enjoyment may be and enure to a select number. (b)

Lining a Pew, and putting in cushions, has been Lining not a held not to be a repairing, it being a mere question repairing. of comfort. (c)

strongest Evi

The strongest Evidence of a Faculty by Prescrip- What is the tion, is the building and repairing time out of mind; dence. for mere repairing for thirty or forty years will not exclude the Ordinary. The possession must be ancient, and going beyond memory, though not the high legal memory. (d)

Thus where a house had been built eighty years, and the Pew had been exclusively used by the owner, this title was held bad against the Ordinary. (d) For we have seen that even 110 years' occupation is insufficient. (e)

House built

Eighty years.

a wrong-doer.

In an action against a wrong doer, it is not neces- Action against sary to set forth so strict a title as in an action against the Ordinary. It is sufficient to lay the Pew to be appurtenant to a house, but that must be taken to be legally appurtenant, which can only be by Prescription or by a Faculty. (ƒ)

Declaration.

And it is sufficient to say that the defendant dis- Statement in turbed him, without mentioning specially how the disturbance was, (g) and no title need be shown; (h) and the plaintiff may declare upon his possession,

(b) Jacob v. Dallow, 6 Mod. 230.

(c) Morgan v. Curtis, 3 M. & Ry. 393; Pettman v. Bridger, 1 Phill. 316; and see p. 60, post. (d) Walter v. Gunner and Drury, 1 Hag. C. C. 322, 323.

(e) Fuller v. Lane, 2 Add. 422.
(f) Stocks v. Booth, 1 T. R.

430.

66

(g) Com. Dig. Action on Case for Disturbance" (A. 3); Bridg. 4.

(h) Fiske v. Rout, Lofft. 425.

Usual mode of declaring.

Presumption

by Jury.

Thirty years' possession.

Pew locked.

without alleging usage to repair, Prescription, or other ground of action, for that may be proved in evidence. (i)

The usual mode of declaring in an action on the case for disturbance is, "that the plaintiff was possessed of a certain messuage, and, by reason thereof, ought to have for himself and family, inhabiting the said messuage, the use and benefit of a certain Pew." (k)

The Jury ought to presume everything they fairly can presume against a wrong-doer, unless all ground of Presumption be taken away by the facts disclosed at the trial. (7)

It has been held that uninterrupted possession of a Pew in the Chancel of a Church for thirty years is presumptive evidence of a prescriptive right to the Pew in an action against a wrong-doer, till rebutted by proof that prior to that time the Pew had no existence, its site being occupied by an open Seat, and that it was not built at the expense of the owner of the messuage, to which it was claimed as appurtenant, but by another person. (m)

Where the plaintiff was put into possession by the Clergyman and Parish officers when the Church was rebuilt forty years back, and had locked up the Pew for thirty-six years, the Court presumed that he had a legal title, and relied upon the locking up as

Evidence of a pre-existing right, so as to show the new Pew had been built under an old right, (»)

Where a Pew has been rebuilt by the Parish, there Pew built by would be a cession of the Pew to the Parish, unless

some express agreement to the contrary could be shown. (0)

the Parish.

The fact of enlarging a Pew, though it would not Pew enlarged, of itself destroy the prescriptive right, may operate

on a Jury as to the existence of such prescriptive right; since, if it existed, the party would have put it in hazard by the enlargement. (p)

When an Aisle has been used to be repaired at Aisle repaired the charge of all the Parish in common, the Ordi- by the Parish. nary may appoint whom he pleases to sit in it, not

withstanding any usage to the contrary. (q)

In an action for disturbing the plaintiff's enjoyment Entry in the of a Pew claimed in right of a house, an old entry Vestry-book. in the Vestry-book, signed by the Churchwardens, stating that the Pew had been repaired by the then owner of the house (under whom the plaintiff claimed), in consideration of his using it, was admitted by Lord Ellenborough as Evidence, showing the reputation of the Parish upon the right; besides, as having been made by the Churchwardens, upon a subject within the scope of their official authority. (r)

Upon a Libel in the Consistory Court for dis- Judgment of turbance of the plaintiff's right to a Pew, the Court Consistory adjudged the right to be in the plaintiff, and admon

(n) Rogers v. Brooks, cited Stocks v. Booth, 1 T. R. 431n; Morgan v. Curtis, 3 M. & Ry. 394.

(0) Pettman v. Bridger, 1 Phill. 329.

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

Ry. 393.

(q) Frances v. Ley, Cro. Jac, 366,

(r) Price v. Littlewood, 3 Camp. 288.

Court.

Specification in title-deeds.

Abandonment

of a Pew.

Payment of a
Pew-rate.

ished the defendant not to sit in the Pew. The Arches Court reversed the sentence, but admonished the defendant not to use the Pew again. It was held that whatever weight these sentences might have, they were not conclusive evidence of the plaintiff's right, in an action on the case for a disturbance between the same parties. (s)

It is no uncommon thing to introduce the specification of a Pew into title-deeds, and this is done with two objects—to have a sort of warranty of the right from the vendor, and to possess documentary evidence of the right. Therefore, in trying a Prescription, old title-deeds should be searched. (t)

A Pew annexed to a mansion by a prescriptive title, and formerly used by the servants of the family, had been occupied upwards of twenty years by a tenant of some of the land belonging to the Estate. This tenant continued to use the Pew until his death, which took place three years after the expiration of his tenancy. The owner of the mansion had lined. and cushioned the Pew to accommodate his visitors, when that in his own occupation was full. It was held that the fact of another person having had possession for so long a time, was virtually an abandonment of the right to the Pew. (u)

And the payment of a Pew-rate after the repairing of a Church, though an irregular proceeding, would, at all events, show that the party paying it had no exclusive title either by Faculty or Prescription. (x)