necessity of the times may have allowed a different practice to grow up, and it may be competent to them to act without any authority of the Ordinary, previously conferred.”

If the population be increasing, and the Church room already insufficient, and there be a Pew capable of accommodating seven or eight persons, and the family using it be reduced to one or two, it may be proper either to remove such family altogether, or, at least, to seat some other persons in the same Pew. (t)

This, it is true, is not to be done except in a case of strong necessity; but the power of doing so, in order to provide for the convenient attendance of the other Parishioners upon Divine Service, ought not to be taken away from the Churchwardens. (t)

No action at common law can be maintained for a disturbance of a Pew, which is not annexed to any house, if it be in the body of the Church. But it has been suggested that a Chancel is different, as it may be the freehold of an individual. (u)

A bare possession, however, can never give a right As it is a bare of action for the disturbance of a Pew, because every possession. Parishioner has a right to go into the Church. If a person will not take the trouble to apply to the Ordinary for a Faculty, he cannot maintain an action against a wrong-doer. For if bare possession were allowed to be a sufficient title, it would be an encouragement to commit disorders in the Church. (x)

It is matter for
Ecclesiastical

censure.

How a person should assert his right.

Suit for disturbance.

On what it may rest.

Not on purchase, letting, or bequest.

Six years' possession.

Temporary permission to sit in a Pew.

And the mere right to sit in a particular Pew is not such a temporal right as that, in respect of it, an action at common law is maintainable. (y) And the disturbance is matter for ecclesiastical censure only. (z)

A person in asserting his right to a Seat, should not endeavour to gain possession of the Pew by forcible means, as, for instance, by wrenching off the lock, but he ought to sue the occupier as for a "perturbation." (a)

A Possessory right to a Pew, is sufficient to maintain a Seat against a mere disturber; the fact of possession implies either the actual or virtual authority of those having power to place. (b)

A Suit for perturbation of Seat may rest on a Possessory title, and acquiescence of former Churchwardens, and on the fitness of the party, from the number of his family or amount of property, to occupy it. (c)

But a title must not be pleaded as founded on purchase, letting, or bequest, all which are illegal and void. (c)

It was held by the late Lord Stowell, that a six years' possession is not sufficient against a mere disturber. (d)

A person having permission from the Churchwardens to sit in a Pew temporarily, and in order,

by keeping possession for a future tenant, to carry into effect the conditions of sale of a house, to which the Pew had been attached for 99 years, under a Faculty since expired, was held to have no possession on which he could bring a Suit for perturbation against a mere intruder, such permission being illegal, as confirming the sale of the Pew. (e)

The Churchwardens ought not, without cause, to Possession displace persons in possession; and if they do, the gives preferOrdinary will reinstate them; the possession has

its weight, and the Ordinary would give a person in possession, cæteris paribus, the preference over a mere stranger. (f)

ence.

A disturber must shew that he has been placed in How disturber the Pew by the actual or virtual authority of those must justify. having power so to place; or must justify his disturbance by shewing a paramount right—that is, a right paramount to the Ordinary himself, as in the case of a Faculty by which the Ordinary has parted with the right. (ƒ)

Churchwardens may

Where the Churchwardens, in exercise of their what the right, seated a person of respectability, who had a large and increasing family, and who inhabited one plead. of the principal houses, and paid highly to the Parish Rates, it was held that this might properly be pleaded, in defence of their conduct. (g)

The Court will decide upon the admissibility of a Admissibility plea, according only to the facts stated therein. (h)

The Court will not go

(e) Blake v. Usborne, 3 Hag. 733.

(f) Pettman v. Bridger, 1

Phill. 324.

out of its way to confirm

(g) Wyllie v. Mott and French, 1 Hag. 40.

(h) Spry v. Flood, 2 Curt.

356.

of pleas.

The Court will possession, for this might be attended with injurious

not confirm

possession.

Even where the

person has

consequences to the Parish, and it would countenance the idea, which rather ought to be checked, that the Pew is specially appropriated to the house. (i)

Therefore in a Suit for perturbation of Seat, if it appear that the Churchwardens have acted properly by the Church in displacing the plaintiff, the Court will dismiss them;

been seated

wardens.

but will not proceed to confirm the possession of the person seated by them, as it does not form part of the question before the Court. (i)

(i) Wyllie v. Mott and French, 1 Hag. 41.