1 Sect. 9. R. 219. life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as herein last before mentioned, during the "continuance of such term, shall be excluded in the computa"tion of the said period of forty years, in case the claim shall, "within three years next after the end or sooner determination "of such term, be resisted by any person entitled to any rever"sion expectant on the determination thereof1*” In order to establish a right of way, and to bring the case within this act" observes Mr. Baron Parke, in Bright v. Wal 1 Cr. Mee. & ker2, "it must be proved that the claimant has enjoyed it for the full period of twenty years, and that he has so done" as of right:" for that is the form in which, by section 5, such a claim must be pleaded; and the like evidence would have been required, before the statute, to prove a claim by prescription or non-existing grant. Therefore, if the way shall appear to have been enjoyed by the claimant, not openly and in the manner that a person rightfully entitled would have used it, but by stealth, as a trespasser would have done,-if he shall have occasionally asked the permission of the owner of the land, -no title would be acquired, because it was not enjoyed "as of right." For the same reason it would not, if there had been unity of possession during all or part of the time; for then the claimant would not have enjoyed, "as of right," the easement, but the soil itself. Again, such claim may be defeated in any other way by which the same is now liable to be defeated; that is, by the same means by which a similar claim, arising by custom, prescription, or grant, would now be defeasible; and, therefore, it may be answered by proof of a grant, or of a license, written or parol, for a limited period, comprising the whole or part of the twenty years, or of the absence or ignorance of the parties interested in opposing the claim, and their agents, during the whole time that it was exercised. So far the construction of the act is clear; and this enjoyment of twenty years having been uninterrupted, and not defeated on any ground above mentioned, would give a good title. But if the enjoyment take place by the laches of *No doubt there is a mistake in the 8th section, probably a miscopying in the insertion of the word convenient,' instead of 'easement:' whether we can correct it is another matter." (Per Parke, B., in Wright v. Williams, 1 Mee. & W. 77). one who is tenant for life only, the question is, what is its effect according to the true meaning of the statute?" And in the principal case, the court held, that where a way had been used adversely and under a claim of right for more than twenty years, over land in the possession of a lessee, who held under a bishop's lease for lives, that this user gave no right as against the bishop, and did not affect the see. And also, that, as the user could not give a title as against all persons having estates in the locus in quo, it gave no title as against the lessee and the persons claiming under him; and that no title was gained by an user which did not give a valid title as against the bishop, and permanently affect the see. The right to seats in churches.]—At common law, "all the seats belong to the parishioners at large, for their use and accommoda. tion; but the distribution of the seats among them rests with the ordinary. The churchwardens are the officers of the ordinary. It is their duty to place the parishioners according to their rank and station; and they are subjeect, upon complaint, to the control of the ordinary 1. The churchwardens cannot prescribe to have the power of distribution in exclusion of the ordinary, even in consideration of repairs2. It seems to have been long settled, that a seat may be prescribed for in the aisle as appurtenant to a house either within or out of the parish 3; but as to seats in the body of the church, in the late case of Byerley v. Windus 4, Bayley, J., after an examination of all the authorities, says, upon authority, therefore, and upon principle, I am of opinion that extra-parochials cannot claim a pew in the body of the church otherwise than by prescription, if they could do so by prescription." There is no ground, however, for the doubt here suggested, for it had been previously decided upon very satisfactory reasons, in a case not then reported, that a pew in the body of the church may be prescribed for as appurtenant to a house out of the parish 5. Macdonald, C. B., in delivering *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 You. & Jer. 265); and it seems that such a curate has a 1 Vol. 3, pt. 2, p. 1121, ed. 3725. judgment, said, "The only question which the court has to decide is, whether there can be in law a prescription for a person living out of the parish to have a pew in the nave of the church. There is in the present case an uninterrupted enjoyment; and although the origin of the right to the pew cannot be traced, it is undoubtedly ancient, notwithstanding there is nothing to shew upon what circumstances it was at first assumed or grounded. And in the absence of all evidence against the right, the question is, whether, upon the mere principle of law, the court can say, that, notwithstanding the enjoyment of the right in fact, it could never have had a legal origin. To defeat the claim of the plaintiff, it must be shewn that the creation or assumption of the right was absolutely and of necessity void in origine; and unless the prescription is of itself rotten and bad, from some legal vice, there is nothing else to affect it: but as to the legal possibility or impossibility of the thing, a very short inquiry will serve. It appears from Selden, that in early times, by the Pope's license, churches were founded or built by lords of manors, or other lay founders, and that parishes were not then reduced to the exact circuits and boundaries by which they are now known, and particularly for ecclesiastical purposes; that when churches were first built, a certain district was allotted, over which the officiating minister was to superintend. This was a kind of division, not a parish in the sense in which we now understand it. boundaries of parishes were settled long after the foundation of churches; and those ecclesiastical districts, formerly belonging to churches at their first institution, have been since much varied, and in many cases abridged and narrowed, when new churches were built. How then can we now say, that the owners of the house or the estate in respect of which this pew is claimed, did not build or endow the church, or some part of it; or that this house, though now not within the parish, according to its present boundaries, was not formerly within the ecclesiastical limits of the church? Very probably it was so. But without going farther, it might have been so, and that is sufficient; for we are now only upon the question, whether a person can, for a house out of the parish, prescribe for a pew in the body of the church; or whether the prescription must of necessity be bad in law. The history of churches shews the contrary. The distinction between a prescription in a house out of the parish for a pew in The the aisle, but not in the body of the church, is merely made a doubt or question in some of the books; but there is no case in support of it; and there is no distinction in the reason of the thing itself." The right to a seat 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; and the dwelling-house was afterwards divided into two, it was held, that the occupier of one of the two, (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 1. The right to the pew in question was compared to a right of common of pasture, which may be apportioned. Harris v. Drewe, 2 Barn. & Ad. 164. 140. 3 Fuller v.Lane, 2 Add. 425. • Hawkins v. Phill. 16. 5 Stocks v. 428. The rector is entitled to the principal pew in the chancel, but the rest of the pews in the chancel are in the disposition of the ordinary. The seat does not belong to the person, but to the house2. There- 2 Brabin v. fore a parishioner occupying a seat in the body of the church, and Tradum, Poph. ceasing to be a parishioner, his right to the pew ceases also 3; and on the same principle, a faculty, either in the spiritual court or at common law, which professes to entitle a non-parishioner to a seat in the body of the church, is void: and hence, also, there can be no such thing as personal property in a pew 4; nor can a seat in the body of the church be granted to one and his Compeigne, 3 heirs, even by the ordinary 5, or in the chancel by the rector 6. Trespass does not lie for entering the pew, because the plain- Booth, 1 T. R. tiff has not the exclusive possession, the freehold being in the rector; the proper remedy is an action on the case for the turbance 7. If the action be against the ordinary, the plaintiff & Ald. 507. must prove his title, or consideration, or that he built or re- Kenrick v. paired the pew at his own expense; but this is not necessary if Taylor, 1 Wils. the action be against a stranger, and a mere wrong-doer. No action at common law can be maintained where the pew is not annexed to any house, it being only on account of this annexation that the temporal courts can take any notice of it. When the pew is not annexed to any house, the disturbance is merely matter for ecclesiastical censure: a possessory right in a pew is sufficient to maintain a suit in the ecclesiastical court against a mere disturbers. dis 6 Clifford v. Wicks, 1 Barn. 326. s Pittman v. Bridger, 1 Phill. 324. 16 & 7 W. 4, c. 71. * Sect. 69. * Sect. 70. • Sect. 71. SECT. 5.-OF TITHES. Tithes are now in a course of rapid extinction through the operation of the "Act for the Commutation of Tithes1," and of being converted into a rent-charge. Rent-charges under this act are to be subject to the same burthens, whether parliamentary or otherwise, as the tithes commuted for such rent-charges were liable to2; and the mode of recovering them is provided for3; and they are to be subject to the same incumbrances or other claims which any person had upon the tithes; and they are also to be subject to the same legal incidents as tithes were: and it is enacted, that "no such rent-charge shall merge or be extinguished in any estate of which "the person for the time being entitled to such rent-charge may "be seised or possessed in the lands on which the same shall be charged: provided always, that it shall be lawful for any person "seised in possession of an estate in fee-simple or fee-tail of any "tithes or rent-charge in lieu of tithes, by any deed or declaration "under his hand and seal, to be made in such form as the said "commissioners shall approve, and to be confirmed under their 'seal, to release, assign, or otherwise dispose of the same, so "that the same may be absolutely merged and extinguished in "the freehold and inheritance of the lands on which the same "shall have been charged." The 1 & 2 Vict. c. 64, intituled "An Act to facilitate the merger of tithes in land," after reciting this provision, and also that it is expedient that the same should be extended in manner hereinafter mentioned," enacts, "that from and after "the passing of this act, it shall be lawful for any person or per 66 sons who shall, either alone or together, be seised of or have the "power of acquiring or disposing of the fee simple in possession "of any tithes, or rent-charge in lieu of tithes, by any deed or "declaration under his or their hand and seal or hands and seals, "to be made in such form as the tithe commissioners for England "and Wales shall approve, and to be confirmed under their seal, to "convey, appoint, or otherwise dispose of the same, so that the "same may be absolutely merged and extinguished in the freehold "and inheritance of the lands out of or on which the same shall "have been issuing or charged; and every such deed or declara"tion as aforesaid shall be valid and effectual for the purpose aforesaid, although the same may not be executed or made in 66 |