expired since the conviction. But the Court said, they had no discretionary power in this case, but were bound to award restitution on quashing the conviction (a).

How punishable as a Riot.—If a forcible entry or detainer shall be made by three persons or more, it is also a riot, and may be proceeded against as such, if no inquiry have before been made of the force (3). For Precedents of the Forms, see 2 Burn's Justice.

(a) Rex v. Jones. 2 Str. 474.

(6) Dalt. c. 44.

CHAPTER XXIII.

Of Remedies against third Persons; wherein of Obstruction of a Right of Way.

A

WAY, or a right of going over another man's ground, has been before noticed in Chap. V. Sect. II. among other incorporeal hereditaments.

In such private ways a particular man may have an interest and a right, though another be the owner of the soil (a).

This may be grounded on a special permission; as when the owner of the land grants to another a liberty of passing over his grounds, to go to church, to market, or the like; in which case the gift or grant is particular and confined to the grantee alone; it dies with the person, and if the grantee quit the country he cannot assign over his right to any other, nor can he justify the taking another person in his company (a).

A way may also be by prescription, as if all the inhabitants of such a hamlet, or all the owners and occupiers of such a farm, have immemorially used to cross such a ground, for such a particular purpose; for this immemorial usage supposes an original grant, whereby a right of way thus appurtenant to lands or houses may be clearly created (b).

A right of way may also arise by act and operation of law; for if a man grant me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it; and

I may cross his land for that purpose without trespass; for when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same (a). Therefore when one, (even as trustee) conveys land to another to which there is no access but over the grantor's land, a right of way passes of necessity as incidental to the grant. So also, if the owner of the closes, having no way to one of them but over the other, part with the latter without reserving the way, it should seem that it will be reserved for him by operation of law. So also, under a grant of a free and convenient way for the purpose of conveying oats, among other articles, the grantee has a right to lay a framed waggon-way (b).

Disturbance of ways principally happeneth when a person who hath a right of way over another's grounds, by grant or prescription, is obstructed by enclosures or other obstacles, or by ploughing across it; by which means he cannot enjoy his right of way, or at least not in so commodious a manner as he might have done (c).

If this be a way annexed to his estate, and the obstruction be made by the tenant of the land, this brings it to another species of injury; for it is then a nuisance for which an assize will lie (c).

But if the right of way, thus obstructed by the tenant, be only in gross (that is, annexed to a man's person, and unconnected with any lands or tenements), or if the obstruction of a way belonging to a house or land be made by a stranger, it is then in either case merely a disturbance for the obstruction of a way in gross is no detriment to any lands or tenements, and therefore does not fall under the legal notion of a nuisance which must be laid ad nocumentum liberi tenementi, and the obstruction of it by a stranger can never tend to put the right of way in dispute (c).

The remedy therefore for these disturbances is not by assize or any real action, but by the universal remedy of action on the case to recover damages (d).

Case and trespass for disturbing a right of way.-A right of way, however, is as often contested in an action of trespass.

In an action on the case for spoiling the plaintiff's way with the defendant's carriages, the defendant may justify going along the way with the carriages of a third person having a right to go along the way (e).

But under a right of way over a close to a particular place, a man cannot justify going beyond the place.

Therefore if a defendant justify passing along a private way under a right of way to a close called A. the plaintiff may reply that he went beyond A (e).

(a) 2 Bl. Com. 36.

(6) Howton v. Frearson. 8 T. R. 50.

(c) 3 Bl. Com. 341.

(d) Ibid. 242.

(e) Laughton v. Ward, Lutw. III. S. C. 1 Ld. Raym. 75.

So, it is not a good justification in trespass, that the defendant has a right of way over part of the plaintiff's land, and that he had gone upon the adjoining land, because the way was impassable from being overflowed by a river: for he who has the use of a thing ought to repair it; and in the principal case, for aught that appeared, the overflowing might have happened by the neglect of the defendant; and it did not appear that the defendant had no other road (a).-Highways, however, are governed by a different principle: they are for the public service, and if the usual tract be impassable, it is for the general good that people should be intitled to pass in another line (b).

A man may prescribe for a way for himself and all those whose estate he hath, without shewing that the way is appurtenant to his estate and if he state that he was seised of two closes, and that he and all those, &c. had a right of way "tanquam ad tenementum spectantem," the Court will reject these words as surplusage (c).

In trespass, where no evidence appeared to shew that a way over another's land had been used by leave or favour or under a mistake of an award which would not support the right of way claimed, such an usage for above twenty years exercised adversely and under a claim of right, is sufficient to leave it to the jury to presume a grant which must have been made within twenty-six years, as all former ways were at that time extinguished by the operation of an Inclosure Act (d).

A claim of a prescriptive right of way from A. over the defendant's close into D. is not supported by proof that a close called C. over which the way once led, and which adjoins to D. was formerly possessed by the owner of close A. and was by him conveyed in fee to another, without reserving the right of way; for thereby it appears that the prescriptive right of way does not, as claimed, extend unto D. but stops short at C. (e).

But where in trespass quare clausum fregit the defendant prescribed for an occupation way from his own close "unto, through and over,” the locus in quo "to and unto" a certain highway, &c. such plea may be sustained, though it appeared that one out of several intervening closes was in the possession of the defendant himself (ƒ).

However, under a grant of a way from A. to B. " in, through and along" a particular way, the grantee is not justified in making a transverse road across the same (g).

Quare obstruxit.-Another remedy which the law affords in cases of a similar kind, is by writ of quare obstruxit.

(a) Taylor v. Whitehead. Doug. 745. (b) Senhouse v. Christian. 1 T. R. 560570.

(c) Laughton v. Ward. 1 Ld. Raym. 75. (d) Campbell v. Wilson. 3 East. R. 294.

(e) Wright v. Rattray. 1 East. R. 377. (ƒ) Ibid. 381. (cited.) Weaver v. Bush. 8 T. R. 78-80.

(g) Senhouse v. Christian. 1 T. R. 560.

This writ lay for him who, having a liberty to pass through his neighbour's ground, could not enjoy his right, because the owner had so obstructed it (a).

It lies in the nature of a writ of right close, de recto clauso, directed to the lord or bailiffs of a manor of antient demesne (b).

(a) Fleta. L. 4. c. 26.

(6) F. N. B. 11. J. L. Com. Dig. in voce.

CHAPTER XXIV.

Of Liability to repair a Church, and of Right to Pews

OF

therein.

F common right, that is, by the ancient canon and civil law, the parson ought to have repaired the whole church; and it is by the custom of England only that the parish repairs the body (a). In one case the Court said, that the repairing of the church is a real charge upon the land, let the owner live where he will (b).

But in a subsequent case it was holden, that the occupier of land in a parish shall be rated to the repairs of the church, and not the landlord living out of the parish. So it was said, if a man take a lease of a stall in a market-town, where he uses once a week to sell his wares, but live in another parish, he shall not be charged towards the repairs of the church in that market-town (c).

So, church ornaments are a personal charge upon the inhabitants, and not upon those who live elsewhere, though they occupy lands in that parish (b).

The paying towards the repairs of a chapel of ease will not prevent the churchwardens from proceeding in the Spiritual Court for non-payment of a rate for repairing the mother church (d). The making of church-rate is a subject of ecclesiastical jurisdiction; wherefore a mandamus to the churchwardens to make such rate was refused (e).

A libel was entered in the Episcopal Court at Exeter, against one for not paying a church-rate at Totness. Plea that the corporation of T. was bound to repair, and it appeared that this was the first rate ever made. A prohibition had been moved for on the ground that the plea put in issue matter of prescription. Gibbs shewed cause.

(a) Price v. Rouse. 11 Mod. 83.
(b) Woodward's Case. 3 Mod. 211. Paget

v. Crumpton, Cro. Eliz. 659.

(c) Anon. 4 Mod. 148.

(d) Ibid. 264.

(e) Rex v. Churchwardens of St. Peter's, Thetford. 5 T. R. 364.

Lord Kenyon said, an individual may be subject to the repairs of the aisle, or any other part of a church, by prescription; so com, semb. of the whole church, so that the parishioners may not be rateable, and so of a corporation (a).

An individual may have a prescriptive right to a seat, &c. in a church which might be in respect to his house, and its inhabitants, even though it be situated in another parish; and not in respect to his lands, and the sheep and horses thereon: but the right to repair a part or the whole of the church, may well be in respect of lands (b). A person may prescribe for a pew in the chancel of a church (c). But there cannot be a gift of a pew without a faculty: and faculty to a man and his heirs is bad (d).

However, if a faculty be annexed to a messuage, it may be transferred with the messuage to another person (d).

A faculty may be granted even for exchanging seats in a church (c). A seat in a church may be annexed to a house either by a faculty, or by prescription; and from long uninterrupted usage a faculty may be presumed (c).

It is impossible to determine à priori, what evidence will or will not be sufficient to support such a right; it must vary in each particular

case.

Evidence of continued possession for thirty-six years, where the pew was claimed as appurtenant to a messuage, was deemed good presumptive evidence of a faculty (d).

So, uninterrupted possession of a pew in the chancel for twentyeight years, unexplained, is presumptive evidence of a prescriptive right to the pew, in an action against a wrong-doer; which presumption, however, may be rebutted by proof that prior to that time the pew had no existence (c).

So in an action for disturbing plaintiff's enjoyment of a pew claimed in right of a messuage, an old entry in the vestry book signed by the churchwardens stating that the pew had been repaired by the then owner of the messuage, (under whom the plaintiff claimed,) in consideration of his using it, is admissible evidence to prove the plaintiff's right to the pew (e).

But possession alone of a pew in a church, though for above sixty years, was, in an antecedent case, holden not to be a sufficient title to maintain an action on the case even against a wrong-doer, for disturbance in the enjoyment of it: but that the plaintiff must prove either a prescriptive right or a faculty, and should claim it in his declaration as appurtenant to a messuage in the parish. For bare possession can never give a right; because every parishioner has a right

(a) MSS. East's T. 30 G. 3.
(b) Frances v. Ley. Cro. Jac. 366.
() Griffith v. Matthews. 5 T. R. 296.

(d) Storks v. Booth. 1 T. R. 428. 432(e) Price v. Littlewood. 3 Campb. 288.