who granted in fee, so that he might lawfully grant it *to the said priory; on the ground that every thing ought to [ *108 ] be presumed to be done which would make the ancient impropriation good. The doctrines laid down in that case were fully recognized and confirmed in The Mayor of Hull v. Horner, where a possession of upwards of 350 years, namely, from 1441 to 1772, was held sufficient ground for presuming a charter or grant from the crown. Lord Mansfield there cites a case of R. v. Brown, where possession and enjoyment for 100 years was held by him to be evidence against the crown of right in the defendant, if the claim could have had a legal commencement, although no such claim could be shewn. "In questions of this kind," continues his lordship, "possession goes a great way; but there is no positive rule which says that 150 years' possession, or any other length of time within memory, is a sufficient ground to presume a charter." On this principle, in the case of Gibson v. Clark, (d) it was considered by Lord Eldon that a grant from the crown of an advowson, which had been excepted out of the general words of a former grant, might be presumed from a possession by the grantee of 133 years, coupled with three presentations by him and none by the crown. In the case also of Powell v. Milbanke, (e) where it appeared that a chapel had been granted by letters-patent in 1618, with an exception of the right of presentation. The premises having, in 1629, come into the Hedworth family, they presented to the curacy in 1694, and also in 1735. On this evidence, Lord Mansfield left it to the jury to say, whether, from the two adverse nominations, and possession under them, by the Hedworth family, they would not presume a grant from the crown of the right of *presentation to the curacy; and the jury found accordingly. This case has, however, [ *109 ] been severely animadverted on by Lord Eldon and Chief Baron Eyre.(f) In the case of Roe d. Johnson v. Ireland,(g) it was held, that the enfranchisement of a copyhold might be presumed against the crown, from possession coupled with other circumstances; and in Goodtitle d. Parker v. Baldwin(h) Lord Ellenborough said, that "The courts were in the daily habit of presuming grants from the crown, as of markets and the like, upon an interrupted user of twenty years."

§ 92. The same rule holds in the case of public rights, where it is a principle, that, in order to acquire a right in derogation of that of the public, a longer period of user and enjoyment is necessary than against private individuals.(?) Thus, it has been expressly held, that twenty years' possession of the water of a public navigation at a given level is not conclusive, against the public.(k) So, in the case of Weld v. Hornby,() where it appeared by documentary evidence, that a party, who had been entitled for two centuries to a weir of brushwood for taking fish in a public river, in 1766, erected a stone weir instead thereof across two-thirds of the stream, and, in 1784, carried it across the remaining part of the river, an action for obstruction having been brought between nineteen and twenty years from 1784, the judge told the jury that the length of possession by the defendant, and acquies

(d) 1 Jac. & W. 159.

(e) Cowp. 103, note.

(f) Harmood v. Oglander, 8 Ves. jun. 130, note; Gibson v. Clark, 1 Jac. & W. 161, note (a) (g) 11 East, 280. (h) Id. 488. (i) Greenl. L. E. 51, art. 45. (2) 7 East, 199.

(k) Vooght v, Winch, 2 B. & A. 662.

[ *110 ] cence by the plaintiff, were evidence of title in the defendant from which, connected with some other slight circumstances, they might infer a legal commencement of the right, and the jury found accordingly; the court set aside the verdict. Lord Ellenborough there says, "The right of the defendant to have a stone weir is plainly founded on encroachment. Weirs across rivers were from the earliest times considered public nuisances; and however twenty years' acquiescence may bind parties whose private rights only are affected, yet the public have an interest in the suppression of public nuisances, though of longer standing." Again, in the case of Chad v. Tilsed, (m) it was considered that forty years' usage, unsupported by other evidence, would not be sufficient to establish an exclusive right over an arm of the sea; but such usage, coupled with the general language of an ancient grant, might be presumptive evidence of user previous to that time, and, through it, of an ancient right. And, in R. v. Montague, (n) where a public road, erected so as to obstruct a channel once navigable, had continued so long that the precise state of the channel at the time of the construction of the road could not be shewn, it was held that the right of navigation might be presumed to have been extinguished either by act of parliament, writ of ad quod damnum, with inquisition under it, &c., or by natural causes, such as the recess of the sea, or accumulation of mud, &c.

§ 93. The case of pews will require a separate consideration. By the general law, and of common right, all pews belong to the parishioners at large, for their use and accommodation; but the distribution of seats among them rests with the ordinary, whose officers the *churchwardens are, and whose duty it is to place the [ *111 ] parishioners according to their rank and station, subject, however, on complaint, to the control of the ordinary.(o) In furtherance of these principles, it is held that the ordinary can only grant a faculty for a pew or seat to a parishioner, or to be held as appurtenant to a messuage within the parish. If the grantee in the former case. ceases to be a parishioner, the right ceases.(p) For the same reason, a faculty to a man and his heirs, (q) or to hold a pew as annexed to land, is void.(r) So, a right to a pew as appurtenant to an ancient messuage may be claimed by prescription, which presupposes a faculty;(s) and it is only in this light, namely, of easements appurtenant to a messuage, that the right to pews is considered in courts of common law.(t) It is said that a pew in the body of a church may be prescribed for as appurtenant to a house out of the parish;(u) and it is certain that an aisle or chancel may belong to a non-parishioner.(x)

§ 94. The right to pews is either possessory or absolute. The eccle(m) 2 B. & B. 403. (n) 4 B. & C. 598, (10 Eng. Com. Law Reps.) (0) Pettman v. Bridger, 1 Phil. 323; Fuller v. Lane, 2 Add. 425; Blake v. Usborne, 3 Hagg. N. R. 733; Corven's case, 12 Co. 105–6, 3 Inst. 202; Byerley v. Windus, 5 B. & C. 1, (11 Eng. Com. Law Reps.)

(p) Fuller v. Lane, 2 Add. 425; Hawkins v. Compeigne, 3 Phill. 16; Byerley v. Windus, 5 B. & C. 1, (11 Eng. Com. Law Reps.); Hallack v. The University of Cambridge, 1 Gale & D. 100. (9) 1 Burn's Eccl. L. 360. (r) Pettman v. Bridger, 1 Phill. 325.

(s) Pettman v. Bridger, 1 Phill. 324; Walter v. Gunner, 1 Hagg. C. R. 317; Wyllie v. Mott, 1 Hagg. N. R. 39. (t) 3 Stark. Ev., tit. Pew, 861, 3rd ed. See Byerley v. Windus, 5 B. & C. 1, (11 Eng. (*) Fuller v. Lane, 2 Add. 427.

(u) Lowsley v. Hayward, 1 Y. & J. 583. Com. Law Reps.)

siastical courts will protect a party who has been for any length of time in possession of a pew or seat against a mere disturber, so far at least as to put him *on proof of a paramount title.(y) And where the right is claimed as appurtenant to a messuage [ *112 ] within the parish, a possession for twenty years or more will give a title against a wrong-doer in a court of common law. (2) Thus, in the case of Rogers v. Brooks, (a) where the plaintiff set up an immemorial right to a pew, as appurtenant to an ancient messuage, and it appeared by evidence, that, until within forty years before action brought, the pew had been an open one, and that at that period the church had been pulled down, and on its being rebuilt the rector and churchwarden put the plaintiff in possession of the pew, who put a lock on it, and did some acts of ownership; it was held that thirty-six years' possession, coupled with the above circumstances, was evidence from whence the jury might, as against a wrong-doer, infer a prescriptive right in the plaintiff. So, in Stocks v. Booth, (b) Buller, J., seems to think that a possession for sixty years would have been sufficient evidence against a wrong-doer of a prescriptive right to a pew, if laid or annexed to a messuage within the parish; and in the subsequent case of Griffith v. Matthews, (c) a possession of between thirty and forty years was deemed sufficient. But where the origin of the pew is shewn, or the presumption rebutted by circumstances, the prescriptive claim is at an end.(d)

*§ 95. But, in order to raise the presumption of a right [ *113 ] by prescription or faculty against the ordinary, much more is required; and the general principles on the subject are thus clearly laid down by Sir J. Nicholl in his judgment in the case of Pettman v. Bridger :(e)" A prescriptive right must be clearly proved-the facts must not be left equivocal. In the first place it is necessary to shew that use and occupation of the seat have been from time immemorial appurtenant to a certain messuage-not to lands; secondly, it must be shewn, that, if any acts have been done by the inhabitants of such messuage, they have 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 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 on now to say." With respect to the length of occupation necessary for this purpose, it is difficult to lay down any general rule. "It is impossible to determine à priori what evidence will or will not support such a right: it must vary in each particular case."(g) "The possession," says Lord Stowell, in the case of Walter

(y) Pettman v. Bridger, 1 Phill. 324; Spry v. Flood, 2 Curt. 356. Proceedings for this purpose are technically called "suits for perturbation of seat." 1 Phill. 323.

(z) Darwin v. Upton, 2 Wms. Saund. 175 c; Kenrick v. Taylor, 1 Wils. 326; Stocks v. Booth, 1 T. R. 428; Rogers v. Brooks, Id. 431, n.; Griffith v. Matthews, 5 T. R. 296; Jacob v. Dallow, 2 Ld. Rayın. 755.

(c) 5 T. R. 296.

(e) 1 Phill. 325.

(a) 1 T. R. 431, note.

(b) Id. 428.

(d) Ib., and Morgan v. Curtis, 3 M. & Ry. 389.

(g) Per Buller, J., in Griffith v. Matthews, 5 T. R. 228; recognised by the Court of Queen's Bench in Pepper v. Barnard, 12 L. J., N. S., Q. B., 361.

JANUARY, 1845.-6

v. Gunner,(h)" must be ancient, and going beyond memory; though, on this subject, I do not mean the high legal memory." That case seems an authority to shew that a possession of eighty years, unsup[ *114 ] sufficient to exclude the ordinary. ported by proof of *building or repairing, would not be

§ 96. It is said to be necessary, in order to support a prescriptive claim to a pew, to shew that it has been repaired time out of mind at the expense of the party setting up the right, or those under whom he claims. (2) In the case of Woollocombe v. Ouldridge,(k) Sir J. Nicholl is reported to have said, that " Reparations from time to time are absolutely necessary to be pleaded and proved, in order to make out a prescriptive title."() And in Walter v. Gunner(m) Lord Stowell says, "The strongest evidence of this kind is the building and repairing time out of mind; for mere repairing for thirty or forty years will not exclude the ordinary." Undoubtedly, proof that the pew had been repaired by the parish or others would go far to negative the claim, if not be absolutely conclusive against it; but it seems hard to defeat an occupancy of centuries on the ground that there was no evidence to shew who had repaired the pew during the continuance of that occupancy, or even that it had required any repair at all. However this may be, it has been held, in a very recent case, that, where several pews are used under one and the same claim of right, proof of repair done to some is evidence of repairs as to all.(n)

§97. We now come to consider the statutes 2 & 3 Will. 4, c. 71, and 2 & 3 Will. 4, c. 100. Notwithstanding all that had been done, by facilitating the proof of prescriptive rights, and allow[ *115 ] ing the pleading a non-existing grant, cases still occurred in which the length of the time of prescription operated to the defeat of justice. On this subject the Real Property Commissioners express themselves as follows :(o)—" In some cases the practical remedy fails, and the rule (of prescription) produces the most serious mischiefs. A right claimed by prescription is always disproved by showing it did not or could not exist at any one point of time since the commencement of legal memory, &c. Amid these difficulties, it has been usual, of late, for the purpose of supporting a right which has been long enjoyed, but which can be shewn to have originated within time of legal memory, or to have been at one time extinguished by unity of possession, to resort to the clumsy fiction of a lost grant, which is pleaded to have been made by some person seized in fee of the servient to another seized in fee of the dominant tenement. But, besides the objection of its being well known to the counsel, judge, and jury, that the plea is unfounded in fact, the object is often frustrated by proof of the title of the two tenements having been such that the fictitious grant could not have been made in the manner alleged in the plea: the contrivance, therefore, affords only a chance of justice, and may stimulate the adversary to an investigation, for an indirect and mischievous end, of an

(h) 1 Hagg. C. R. 322.

(i) Ashley v. Freckelton, 3 Lev. 73; Kenrick v. Taylor, 1 Wils. 326.

(k) 3 Add. 6.

(7) See, however, the language of the same learned judge in Pettman v. Bridger, 1 Phill. 325, cited supra, art. 88. (m) 1 Hagg. C. R. 322.

(n) Pepper v. Barnard, 12 L. J., N. S., Q. B., 361.
(0) First Report of Real Property Commissioners, 51.

66

cient title-deeds, which, for every fair purpose, have long ceased to be of any use." Besides the above, there was this inconvenience, that the evidence necessary to support a claim by lost grant would not support a claim by prescription; so that a plea of the former might "If," says, [ *116 ] miscarry from the evidence going too far. Littledale, J., in the case of Blewett v. Tregonning,(p)" the evidence establishes an user as far back as memory goes, and there does not appear to have been any time at which it did not exist, that is proof of a prescription; and, supposing the evidence sufficiently strong, a prescription is what the jury would find, and they have no right to find a grant unless more be shewn. Supposing the evidence in such a case to leave it doubtful whether the right existed sixty or seventy years ago, it may be protected under the plea of a non-existing grant; but if the evidence of user goes far enough to prove a prescription, such evidence cannot be relied on to prove a grant." In addition to all which, it was well observed, that the requiring juries to make artificial presumptions of this kind amounted, in many cases, to a heavy tax on their consciences, which it was highly expedient should be removed.(q) In a word, it at length became apparent that the evil could only be remedied by legislation, and the statutes in question were passed for that purpose.

§ 98. The former of these statutes, the 2 & 3 Will. 4, c. 71, intitled, "An Act for shortening the Time of Prescription in certain Cases," after reciting that "the expression, 'time immemorial, or time whereof the memory of man runneth not to the contrary,' is now by the law of England in many cases considered to include and denote the whole period of time from the reign of king Richard the First, whereby the title to matters *that have been long enjoyed is sometimes

defeated by shewing the commencement of such enjoy.[117]

ment, which is in many cases productive of inconvenience and injustice," for remedy thereof proceeds to enact, in the first section, that "No claim, which may be lawfully made at the common law, by custom, prescription, or grant, to any right of common, or other profit or benefit, to be taken and enjoyed from or upon any land of our sovereign lord the king, his heirs or successors, or any land being parcel of the Duchy of Lancaster or Duchy of Cornwall, or of any ecclesiastical or lay person, or body corporate, except such matter and things as are herein specially provided for, and except tithes, rents, and services, shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or destroyed by shewing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years; but nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated; and when such right, profit, or benefit shall have been so taken and enjoyed as aforesaid for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by

(p) 3 A. & E. 583, 584, (30 Eng. Com. Law Reps.)

(q) 3 Stark. Ev. 911, n.(1), 3rd ed.; per Parke, B., in Bright v. Walker, 1 C.. M. & R. 217, 218.