his title to receive them is reconciled with the circumstance of their not having formed part of the original endowment, by presuming that the bishop, in exercise of his indisputable right to augment the vicarage, annexed the additional tithes to it by way of augmentation (a). And, in like manner, where a rector proves in himself and his predecessors a perception of tithes appropriated by the endowment to the vicar, this perception, unanswered and unexplained, will be considered evidence that, ať a period antecedent to the disabling statutes, a new agreement was entered into determining what tithes should be accounted rectorial and what vicarial (b).

II. As to Advowsons.-To the time within which actions may be brought to try the title to advowsons, no legal limitation now exists of more recent date than the reign of Henry III. The statute 32 Henry VIII. c. 2, indeed, restricted the prosecution of claims to real property generally to sixty years. But by a subsequent act (c), writs concerning the right of church patronage [*]were excepted from the operation of that statute, because no opportunity of contesting such rights might occur during the prescribed period. This consideration certainly offered a very good reason for extending the period within which writs of right of advowson might be prosecuted: but by leaving the matter at large, an inconvenience has followed of still

greater moment than any which could be apprehended from the occasional hardship and pressure upon individuals of the statute of Henry VIII.; for the title to advowsons is thus rendered less secure than that to any other species of real property. Under this view of the subject, Mr. Justice Blackstone proposed a limitation compounded of length of time and a definite number of adverse presentations. "It would not, for instance, be amiss," says the learned commentator, "if no seisin were admitted to be alleged in writs of patronage after sixty years and three avoidances" (a).

But although the law has provided no other than the limit of six centuries (a limit which is continually shifting and becoming more remote) (1) as a bar to writs of right of advowson, yet in some agreement with Sir W. Blackstone's suggestion it has been determined, that where several successive presentations to a church have been made unopposed, and a great number of years have elapsed without any interfering claim, such unmolested exercise of the right of patronage is to be received as evidence of the right, and as affording sufficient ground for presuming a grant or conveyance of [*]the advowson from some former proprietor, and even from the crown if need be, to the ancestor or

(a) 3 Black. Comm. 251.

(1) As to prescription, see Ackerman v. Shelf, 3 Halst. 125. Arnold v. Mundy, 1 Halst. 67. Chambers v. Furry, 1 Yeates, 167. Young v. Collins, 2 Brown, 293. Dane Ab. vol. 3. ch. 79. art. 20-21.

vol. 5. ch. 172. art. 4. sec. 13. But 125. Rust v. Low, 6 Mass. 91. Cooledge v. Learned, 7 Pick,

Carson v. Brazer, 2 Binn. 490.

Devereux v. Elkins, Dane Ab. see Spear v. Bicknell, 5 Mass. Gayety v. Bethune, 14 Mass. 49.

other person under whom the present possessor claims (a). The inducement to this presumption will be considerably increased, if, since the period of the presumed grant, the advowson has formed a specific subject of conveyance in deeds, fines, or recoveries; or where the apparent owner, in the character of patron, has consented to an augmentation of the living by grant from the governors of Queen Anne's bounty(b).

III. As to Faculties.-The disposal of all seats in the nave of a church(c), and also in the aisles if they have always been repaired at the common charge of the parish (d), belongs to the ordinary, who may place persons there and remove them at his pleasure(e). From the exercise of this power, however, the ordinary may preclude himself by granting licenses, or as the canon-law terms them faculties, enabling the parishioners to appropriate particular seats

(e) "If a lord of a manor, or other person, who hath an house and land in the parish, time out of mind, and hath had a seat in an aisle of the same church, so that the aisle is sole and proper to his family, and they have maintained it at their own charges, it shall be

(a) Bedle v. Beard, 12 Rep. 4; Powel v. Millbanke, Cowp. 103, note; Gibson v. Clark, 1 Jac. and Walk. 159. See also 6 Ves. 673. But see contra, per Eyre, C. B. 1 Jac. and Walk. 161; 6 Ves. 673; and per Lord Eldon, 8 Ves. 130, n. (b) Gibson v. Clark, 1 Jac. and intended that the party's ancestors, Walk. 159, 162.

(c) Corven's case, 12 Co. 105; May v. Gilbert, 2 Bulst. 150.

(d) Frances v. Ley, Cro. Jac. 366; Langley v. Chute, Sir T. Raym. 246.

or those whose estate he hath, erected and built the aisle, with the assent of the parson, patron, and ordinary, to the intent to have it only to themselves." 12 Co. 105. See also Cro. Jac. 366; 2 Bulst. 151.

or pews [*]to the exclusive use of themselves and their families; in return for which privilege the grantees come under an obligation to keep the seats or pews in repair.

Faculties are of two kinds; first, where the grant is to a man and his heirs in gross; and secondly, where it is to a person and his heirs, as appurtenant to a house which he occupies in the parish. The right conferred in the former case is in the strictest sense personal to the grantee; it cannot be assigned over to strangers, and the limitation to the heirs is simply void(a); in the latter case, it is incident to the messuage and not to the grantee, and passes to the successive owners and occupiers of it(b). To this distinction it is material to attend; because, a sa faculty in gross to a man and his heirs will expire with his life, a prescription in gross to the use of a pew— which pre-supposes a faculty in gross-must of necessity be bad. And accordingly, in Stocks v. Booth(c), where there had been possession of a pew for above sixty years, the title was not deemed sufficient to maintain an action against a stranger for a disturbance, as the plaintiff could neither show a prescriptive right to the pew as belonging to a house, nor a faculty granted to himself by the ordinary. But, on the other hand, evidence of a pew having been always considered appurtenant to a particular messuage, and of its having been enjoyed therewith by

(a) 1 Term Rep. 429, in Chambre's argument, and 432, per Buller, J.

(b) Hussey v. Leighton, 12 Co. 106, cited.

(c) 1 Term Rep. 428.

the different [*]owners, will be regarded as sufficient to support the title of the occupier(a).

With regard to the length of possession, which is necessary to establish a presumptive title to a pew as appurtenant to a dwelling-house, no exact rule can be confidently proposed; though it is probable that twenty years, as the common measure of time in like cases, would be held sufficient for this purpose(b). But enjoyment for such period can seldom be relied upon. For if the occupation, though of considerably more remote date than twenty years, began under circumstances which are capable of being ascertained, and which negative the supposition of the occupation having originated in a faculty, the recent peaceable possession will not avail. Hence, where it appeared, that about thirty-five years before, on a dispute which arose between two parishioners res

(a) Rogers v. Brooks, 1 T. R. 431, n. It may here be observed, that when the owner of a seat in his parish church is disturbed in the enjoyment of it by a stranger, he may find redress in the Spiritual Court. Mainwaring v. Giles, 5 Barn. and Ald. 356. If the seat be appurtenant to the plaintiff's dwelling-house, he may also maintain an action on the case at common law and for that purpose he need not prove his ever having made repairs; possession alone is sufficient. (See the last case.) But if the dispute is between the ordinary and the occupant of a pew, the title of the latter must

be shown by the production of the faculty, or by long possession accompanied with the fact of having made reparations when necessary (1 Lev. 71; 3 Lev. 73-4; Kenrick v. Taylor, 1 Wilson, 326; Pettman v. Bridger, 1 Phillim. 324); except, indeed, in the instance of a seat in the chancel belonging to an impropriate rector, in which case, as the rector is bound to repair the chancel, the allegation of amendments may be dispensed with. Noy. 133.

(b) See per Buller, J. in Griffith v. Matthews, 5 T. R. 298; and per Willis, J. in Rogers v. Brooks, 1T. R. 432, n.