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Woodhouse and Duller, Court of Arches, 25 July, 1792, on appeal from the Decanal Court of Wells as to the grant of a faculty for the erection of seats, the Judge observed, " There is one clause in the faculty which is illegal ; a permission to the parties erecting seats to sell the same : this is a practice which may have prevailed frequently, but whenever it has appeared before the Court it has been constantly discountenanced. " The cases of Kensington v. Fryer; Harford v. Jones; and Hole v. Burnet ; show that even where the order has been made to defray expences, it has always been held ille- gal. It is said, hewever, that former cases have been in- stances of old pews, but that the agreement here is for build- ing new pews. This cannot influence the court or make the act legal. It may be true, as it has been remarked in the argument, that this is frequently done, particularly in cha- pels, but they are private property. This is an old parish church; and I am of opinion, that neither the parishioners, by their consent, or the ordinary, or any power but the legis- ture, can deprive the inhabitants of a parish of their general right ; and that such acts are contrary to the law of the land." And the faculty was pronounced illegal. Cited in the Consistory Reports, 1. 318, under the Report of the Case Walter v. Gunner and Drury. 135 8tk Nov. 1811. Pettman, by his Guardian, v. Bridger. 1 Philliraore's Reports, 316 lu this case it was decided that a possessory right in a pew is sufficient to maintain a spiritual suit against a mere disturber. And the judgment herein of Sir John Nicholl throws so much light upon the law on the subject, that Mr. Anderdon (Duties of Churchwardens, p. 99.) thinks it worthy of being transcribed at length. This is a suit technically termed for perturbation of seat : it is promoted by Mr. Pettman, who sets up only a posses- sory right ; that his grandfather had the estate and pew for twenty years ; that he succeeded to it, and has been disturbed in the possession of it by Mr. Bridger. Bridger admits the fact of the dispossession, but sets up a prescriptive right to the pew. By the general law and of common right, all pews be- long to the parishioners at large for their use and accommo- dation, but the distribution of seats among them rests with the ordinary. The churchwardens are the officers of the or- dinary : they are to place the parishioners according to their rank and station, but they are subject to the control of the ordinary if any complaint should be made against them. The vestry as such has no authority whatever on the sub- ject ; the churchwardens are not bound to follow their direc- tions, at the same time the sense and opinion of the vestry ought to have weight with them ; The general right then being in the parish and ordinary, any particular rights in deroga- tion of these are slricti juris; it is the policy of the law that few of these exclusive rights should exist, because it is the ob- ject of the law that all the inhabitants should be accommo- dated, 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 dis- place and make new arrangements, but they ought not, with- 1 3(i out due 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 pos- session cceteris paribus the preference over a mere stranger. A possessory right is sufficient to maintain a suit against a mere disturber, the fact of possession implies either the ac- tual or the virtual authority of those having power to place. The disturber must 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 itself, namely, a faculty by which the ordinary has parted with his right ; or if there be no proof of a faculty, there must be proof of prescription and such immemorial usage as presumes the grant of a faculty. A prescriptive right must be clearly proved ; the fact must not be left equivocal, and they must be such as are not incon- sistent with the general right. In the first place, it is necessary to show that use and occupation of the seat has been from time immemorial ap- purtenant 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 main- tained 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 expence 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, I am not called upon now to say ; 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 I apprehend they still belong to the parish at large. If, how- ever, it is shown that the inhabitants of a particular house have repaired, that fact establishes that the burden and be- nefit have gone together, and is inconsistent with the right of the parish btill to claim the benefit, and is evidence of the 137 annexation of the pew. Thus the uniform and exclusive pos- session of the inhabitants of a particular messuage connected with the burden of maintaining and repairing the seat, is evi- dence sufficient to establish a prescriptive title. To apply these principles to the present case, Mr. Pett- man sets up no prescriptive right : his grandfather first sat there in 1789, and continued in the occupation of it till his grandson succeeded him. This would be no good title against the churchwardens and ordinary, if they thought fit to remove him. It appears that a vestry was held soon after the dis- pute between the parties in this suit, at which it was decided by a majority of ten to two votes, that Mr. Pettman was to have possession of the pew, and the churchwardens were di- rected to put a lock on it. This is strong against the state- ment that general reputation was in favour of the right of Mr. Bridger. Mr. Bridger did not bring an action to sup- port his prescriptive right, but on his own authority took off the lock and resumed possession. The vote of the vestry is of itself no authority as to the question of right : but it marks the opinion of the parish, that Mr. Pettman was entitled in opposition to any common in- truder. Mr. Bridger does not set up that Mr. Pettman is an impro per person to occupy the seat, or that the pew is necessary for his own accommodation, for he has another pew in the church sufficiently large for the occupation of himself and his family ; the parish is increasing, and pews are wanted for the use of the parishioners. Mr. Pettman very properly offered to give up this pew to the disposal of the parish : this proposal was rejected by Mr. Bridger, who stands on his paramount right ; and the question now is at issue on this right between Mr. Bridger and the parish at large as to their accommodation. Now, though these considerations cannot weigh at all supposing Mr. Bridger can make out his right, yet still they have some weight in ascertaining the burden of proof which is imposed upon the parties. Mr. Bridger pleads that two pews, the one he siU in and 138 . the one adjoining to it, which is the pew in question, have been from time immemorial annexed to his house, Eastry Court ; and I think, according to the practice of these courts, the averment is sufficient : it must be considered as including the averment that the pew had been used, occupied, and re- paired from time immemorial. The right is put in this shape : the two pews appertain to the mansion for the use of the family, their tenants and ser- vants ; the family always sat in one, the tenants and servants in the other, being the pew in question. But for the last twenty years the servants have not sat in the pew, nor in- deed have they ever sat in it; from the time of building of this pew, they have occupied a pew in another part of the church. How stands the case as to tenants ? No tenant of the house has sat in it for the last twenty years. Mr. Pettman was tenant of part of the land, but not of the house. A pre- scription for a seat, as annexed to a messuage for the use of the tenants of lands belonging to the proprietors of that mes- suage, would be a bad prescription ; it can only be good for the inhabitants of a messuage. If it could be extended to tenants of the lands, mere lands might be held by the inhabit- ants of another parish, and the pew would then be for the use of persons not dwelling in the parish, which would be con- trary to law. The pew therefore has been occupied for the last twenty years by persons who were not inhabitants of this messuage, and who, as mere tenants of land belonging to the owner of the messuage, could support no personal right ; and this fact alone would be nearly, if not quite, conclusive against the right claimed. It is, however, unnecessary for the court to decide on this point simply, for the history disclosed in the evidence must be examined ; and in examining it, the court must keep in mind that the burden of proof rests with Mr. Bridger, and that proof of mere occupancy without main- taining and repairing, is insufficient. It appears from the evidence of the oldest persons, that this pew was built near sixty years ago, previous to that time there stood on the site of the two pews one large pew and a small slip ; the mansion was then divided into two tenements with a hall common to both : the mansion and estate were held under lease by the Bargrave family from the see of Canterbury. Mr. Bargrave occupied one tenement of the mansion, Mr. Sayer the other ; the two families occupied the large pew together, the servants sat in the open slip. Now what is there to show that the large pew was annexed to the mansion ? There is mere occupancy, but no attempt to prove maintaining or repairing at that time; Some time between 1750 and 1756 an alteration was made, the large seat and slip were converted into their present form, i. e. two seats of nearly equal size : Mr. Bargrave had one seat, Mr. Sayer the other, and the maid servants were placed in a different part of the church : this was a material altera- tion, a considerable expense was incurred, and this, in truth, must be considered as the building of the present seat : has it been attempted to be proved that this was done at the ex- pense of Mr. Bargrave ; not only the presumption of law, but the strong probability of fact is, that it was done by the parish. Just before the alteration was made, a Mrs. Lawson left a sum of money to the parish to repair and beautify the church : many alterations were made, Mr. Bargrave's pew and slip were altered at the same time, and four new pews were made ; they were uniform in appearance and painted alike. Now though it is possible that Mr. Bargrave, notwith- standing these circumstances, may have done this at his own expense, yet being done at the same time and in the same manner and like the opposite pews, the probability is that it was all done by the parish. If this building was done by the parish there must be a complete end of the question, it would 'be a cession of the pew to the parish, unless some express agreement to the con- trary could be shown, there is no proof that it was done by Mr. Bargrave, on the contrary, there are several witnesses who say they believe it was done by the parish, or with Mrs. Luwson's money, there arc none who venture on a contrary 140 belief, so that the weight of evidence is against Mr. Bridget-, though the burden of proof lies on him. The pews have been since repaired, and the belief of the witnesses is, that the repairing was also done by the parish, and it is the more probable, because one or two pews, to which the occupiers had an exclusive right, were not painted. Mr. Sayer was succeeded by Mr. Reynolds, who married his daughter, and who of course continued to occupy the seat: in 1782, Mr. Reynolds gave up the house and farm and quitted the parish ; another very material circumstance then occurred, a part of the mansion was pulled down, and the two tenements were united, perhaps restored, into one. In 1784 portions of the land were let to different tenants, and among the rest to Pettman, but so far from the notion that the pew was for the use of the tenants of the lands, not one of these tenants at that time sat in it, and Pettman 's sitting in the pew neither commenced nor ended with his being such tenant. It was in 1788 or 1789 that Pettman first sat in the pew, there was then a general alteration and a new arrangement of the church, the parish was increasing in inhabitants, and many pews were altered and divided so as to accommodate a greater number of persons. Several of the witnesses state that it was left to the churchwardens, as properly it should be, to seat the inhabitants. Mr. Hadden and Mr. Pettman were the churchwardens, and now it was that for the first time Mr. Pettman was put in possession of this pew. Mr. Hadden deposes, and so do others, that he was placed there by the authority of the churchwardens as a matter of right. Mr. Bargrave suggests that it was a matter of sufferance, or as his tenant, this suggestion is not very consistent with itself, for if he was entitled as tenant, permission would not have been necessary. I have already said that as tenant of the land he could have no right, but if. Mr. Bargrave had intended to have retained his right, supposing him to have had any, surely he would have taken care to have recorded in some way that 141 this was mere sufferance that Pettman was only to sit there as long as he continued his tenant, or during his pleasure ; some written acknowledgment from the churchwardens, some entry in the parish books, some resolution of vestry would have been required. Mr. Bargrave however soon after lined and put cushions into both pews, and this is the great fact relied upon to prove repairs, and the only proof of any. I do not consider this as repairs, but as mere ornament : it proves nothing, for this reason, that it is in no degree inconsistent with the fact of the pews belonging to the parish. Lining and cushioning are not usually done by the parish, these are things which each individual does for his own convenience and comfort. The use Mr. Bargrave made of Mr. Pettman 's pew is ac- counted for, he had occasionally many visitors at his house, and when his own pew overflowed, some of them went into his neighbour's pew ; this is an usual accommodation in all churches, Mr. Pettman being his tenant, would of course admit his visitors ; Mr. Bargrave choosing, as he said, that his friends should be as well seated as himself, lined and put cushions into Pettman's pew, who being his tenant, would have no objection to this measure. But this circumstance, thus accounted for, the only one, and in opposition to all the other facts in the case, does not appear to amount to repairs, to be any act of ownership, or any proof that the burden of this pew lay on the owner of Eastry Court, and not on the parish. Pettman continued in the occupation of the pew till his death, though he ceased to be Bargrave's tenant three years before that event. It has been said that this was sufferance ; Mr. Bargrave might so consider it, he might suppose that he had the right to the pew ; but did Mr. Pettman acknowledge it as suffer- ance so as in any manner to bind himself, or to deprive the parish of this pew ? Quite the reverse. Pettman's family considered that he had the possessory right, and therefore attempted to continue the possession after his death, and the parish upon hearing the statements and the whole ques- 142 tion, decided by a majority of ten to two thrxt Pettman 's notion was right, and that Mr. Bridger was not entitled to the pew. Upon the whole I am of opinion that Mr. Bridger has not proved this seat to be legally annexed to his mansion. Considering also that this right is claimed after a dispos- session of twenty years, that it is a special right set up in derogation of the general principle and policy of the law, that the pew was not wanted for the accommodation of Mr. Bridgets family, that it was wanted by the parish, that this right was set up in opposition to the opinion of his fellow parishioners, that it was enforced by taking off the lock and placing his livery servants in the pew, that he refused to accede to any proposals of accommodation that were made to , him, but stood and insisted upon his extreme rights ; while Mr. Pettman being thus ejected has contested the right, not so much for his own benefit, or for the sake of triumph, as for the accommodation of the parish ; I think the court is bound to condemn Mr. Bridger in the costs. In doing this however the court means to throw no impu- tation on Mr. Bridger's conduct, it is probable that he was strongly impressed with the opinion that he had the exclu- sive right to the pew ; but having asserted that right, and failed to establish it, the expense must fall upon him, and not upon the party who was disturbed in his possession, and compelled to resort to the protection of the law. The court monishes Mr. Bridger to refrain in future from disturbing Mr. Pettman and his family in the possession of the pew in question, and condemns Mr. Bridger in the costs of the suit. TIM. END. LONDON : IBOTSON AND PALMER, PRINTERS, SAVOY STREET, STKVM>. BOOKS RECENTLY PUBLISHED BY JOHN HATCHARD AND SON. IRELAND in PAST TIMES ; an Historical Retrospect, Ecclesiastical and Civil, with Illustrative Notes. 2 vols. 8vo. II. 4s. boards. 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