held that the lay rector is not entitled as of right to make a vault, or affix tablets in the chancel without leave of the Ordinary; nor is he entitled to a faculty for such purposes without laying before the Ordinary the particulars, so as to satisfy him that the vaults or tablets will not interrupt the parishioners in the use and enjoyment of the chancel. In giving judgment, Sir John Nicholl observed, p. 170, "Though the freehold of the chancel may be in the rector, lay or spiritual, as by a sort of legal fiction the freehold of the church is in the incumbent, and though the burthen of repairing the chancel may rest on such rector, yet the use of it belongs to the parishioners for the decent and convenient celebration of the Holy Communion, and the solemnization of marriage; *108] and, by the Rubric, that portion of the communion service, *which forms a part of the regular morning service, is directed to be read from the communion table which is appointed to stand in the body of the church, or in the chancel."

In the case of Jarratt v. Steele, 3 Phillim. 167, which was a suit instituted in the Arches Court of Canterbury by a vicar against the lessee of the great tithes for having forced open the door of the chancel, on which the vicar had placed a lock, and pulled down part of two pews, with a view to the erection of new ones, Sir John Nicholl in giving judgment said, p. 169, " All persons ought to understand that the sacred edifice of the church is under the protection of the ecclesiastical lawsas they are administered in these" (i. e. the Ecclesiastical) "Courts; that the possession of the church is in the minister and the churchwardens;-and that no person has a right to enter it when it is not open for Divine Service, except with their permission." It evidently did not occur to the mind of the learned Judge to doubt that the vicar was entitled to the possession of the chancel, or that the suit was rightly instituted by him.

On these grounds we are of opinion that our judgment should be for the defendants. Judgment for the defendants. The plaintiff having brought error on this judgment, the case was now heard before ERLE, C. J., WILLIAMS and WILLES, JJ., and CHANNELL, B.

*Bridge for the plaintiff.-The vicar of a parish where there *109] is also a rector has no possession of the parish church, far less of the chancel, farther than is indispensable for the performance of Divine service. The rights which a vicar has over the parish church are either by prescription or by statute, as, for instance, 4 H. 4, c. 12, 27 H. 8, c. 28, 31 H. 8, c. 13, the two latter of which introduced lay rectories. [He cited Johnson's Clergyman's Vade-Mecum 265, 26970.] But subject to these rights the freehold of the church is in the rector: Burton Real Property 376, 1209 n., 8th ed.; Stocks v. Booth, per Buller, J., 1 T. R. 428, 430. Besides, the door in question here was in the chancel, the repair of which lies on the rector. In Walwyn v. Awberry, 1 Mod. 258, North, C. J., says, p. 261, "It has been said, that the parishioners have a right in the chancel; but I question that: it is called cancellum, a cancellis; because the parishioners are barred from thence." [WILLIAMS, J.-In Watson's Clergyman's Law, c. 39, 3d ed., are these passages. At p. 391: "I conceive, that (although that the freehold and soil of the chancel may be in the appropriator, or im propriator, especially where they repair the same, either by composition

or prescription, which is in most places in England, except in London) the freehold and soil of the body of the church is in the vicar, as a part of his glebe, for thereof he takes possession at his induction, by which he is seised of all the profits of the vicarage; which way of taking possession would be very strange, if the church itself was not a part of that to which he hath a right by *institution, and of which he is seised by his induction, also this appears from the vicar's being [*110 obliged of common right to repair the church: Roll. Abr. 2, p. 337. Also the trees in a churchyard are said to belong to the vicar, so that if they be cut down by the parson, or any other, and a suit be in the Court Christian not only to punish the fact, but also for damages, a prohibition lyeth." And at p. 382, "Though the freehold of the body of the church be in the incumbent thereof, and the seats therein be fixed to the freehold, yet because that the church is dedicated to the service of God, and is for the use of the inhabitants, and the seats are erected for their more convenient attending upon Divine service, the use of them is common to all the people that pay to the repair thereof: And for this reason, if any seat, though affixed to the church, be taken away by a stranger, the churchwardens (and not the parson) may have their action against the wrongdoer," for which he cites 8 H. 7, 12.] In Degge's Parson's Counsellor, 202, 7th ed., it is said, "The freehold of the whole church, and churchyard are in the parson or rector, and therefore the parson may have an action of trespass against anybody that shall do any trespassable act in the church, or churchyard; as in breaking seats annexed to the church, in breaking the windows, cutting the trees, or taking away the leads, or any of the materials of the church, or for breaking windows, the party may be indicted and fined, and bound to his good behaviour." Clifford v. Wicks, 1 B. & A. 498, and Jones v. Ellis, 2 Y. & J. 265, which were relied on in the Court below to show possession in the vicar, only establish that he has a sufficient *possession to support an action against a wrongdoer. But so has [*111 the erector of a tombstone, who may maintain an action against any person who interferes with it, Spooner v. Brewster, 3 Bing. 136 (E. Č. L. R. vol. 11); and this even against the parson: Co. Litt. 18 b; Wyche's Case, 9 Edw. 4, 14 a, pl. 8, Garven and Pym's Case, Godb. 199-200.

Even if the vicar's right of access to the church at all reasonable times be conceded, it does not follow that he has the right claimed by this plea of entering it by any particular door. Besides, the plea justifies a trespass on the ground that it is to prevent a repetition of misconduct, a thing which ought not to be presumed. At all events, if the plaintiff was wrong in locking this door, the remedy against her lies in the Ecclesiastical Court.

Manisty (Beresford with him), contrà.-The freehold of the church is in the rector, but the vicar is by his induction put bodily in possession of it for the use of the parishioners: Lee v. Matthews, 3 Hagg. Eccl. R. 169, 173; Rich v. Bushnell, 4 Id. 164; Jarratt v. Steele, 3 Phillim. 167, 169-170; Jones v. Ellis, 2 Y. & J. 265. In Degge's Parson's Counsellor, p. 213, 7th ed., "Though the freehold of the church be in the parson, yet he cannot pull down any of the seats anciently erected, or of late erected, but by license from the bishop, or by the consent of the churchwardens." No sound distinction exists in this respect be

tween the chancel and the other parts of the church: Corven's Case, 12 Co. 105; *Clifford v. Wicks, 1 B. & A. 498, 507, per Holroyd, *112] J. The notion that the parishioners can be excluded from the

former is unfounded; for most important duties, especially the administration of the Holy Communion, are performed in it; and before the Reformation, service was performed there every day, 1 Burn Eccl. Law 363, 9th ed.; and although the rector is bound to repair it, and not the rest of the church, 2 Inst. 489, this is not because it is his freehold, but because such is the custom of England: Gibs. Cod. Jur. Eccl. Angl. 233; Watson's Clergyman's Law 388; Com. Dig. Esglise (G 2); and the power of the Ordinary extends to all parts of the church, Gibson, Cod. Jur. Eccl. Angl. 224; Oliphant on Pews, p. 8, where the authorities are collected. [CHANNELL, B., referred to Morgan v. Curtis, 3 Man. & R. 389, there cited.]

Bridge, in reply.-Jarratt v. Steele, 3 Phillim. 167, 170, only establishes that the Ecclesiastical Court will protect the right of the vicar as against a wrongdoer who interferes with the fabric of the church. Rich v. Bushnell, 4 Hagg. Eccl. R. 166, merely shows that the lay rector's rights over the chancel may be limited as regards the Ordinary. It is not correct to say that by custom the rector repairs the chancel and the inhabitants the church, for in ancient times the repair of the whole church was in the person who received the tithes. [ERLE, C. J.-That was in the time when the tithes also maintained the poor.] When the parishioners obtained a right to seats in the body of the church, it naturally became their duty to repair it, but *the original right of *113] the rector to repair the chancel remained as in the earliest times. Rex v. Hickman, 2 East, P. C. 651,(a) is an authority that, on an indictment for stealing lead from the body of a church, the property may be laid in the vicar; but it appears that many of the Judges thought that, under the stat. 4 G. 2, c. 32, on which that indictment was framed, the property need not be laid in any one.

ERLE, C. J.-This is an action of trespass by a lay rector against a vicar for taking the lock off a door leading into a parish church, which lock is claimed by the rector as his property; and the substance of the plea I take to be, that the defendant, as vicar, claims a right to go into all parts of the church and pass in and out through any of its doors at all times; and as the rector put a lock on one of them in order to prevent his passing through what I call one of the public doors of the church, the vicar had a right to put an end to that obstruction, so as to have free ingress and egress. This was ruled a valid defence in the Court below, and we are of opinion that their judgment ought to be affirmed.

In coming to this conclusion, I do not mean to go into the questions which have been raised as to the rights of the rector relative to the freehold which he may have in the chancel, or into the various rights of property which he may have in the church, or into the different customs in different parishes on these subjects. No such matters are involved in the consideration of the plea before us. For that plea is *114] founded on a claim of *right on the part of the minister who has duties to perform in the church: and I do not think that I can express his rights better than in the language of Sir John Nicholl in (a) And more fully 593; s. c. 1 Leach C. C. 318.

the case of Jarratt v. Steele, 3 Phillim. 167, 169, 170, which was referred to by the Court below:-"All persons ought to understand that the sacred edifice of the church is under the protection of the Ecclesiastical laws as they are administered in these" (i. e. the Ecclesiastical) Courts; that the possession of the church is in the minister and the churchwardens;-and that no person has a right to enter it when it is not open for Divine service, except with their permission, and under their authority." That is a perfectly sound exposition of the law in the temporal as well as in the Ecclesiastical Courts. The domus mansionalis Omnipotentis Dei, 3 Inst. 64, is not to be turned from the purpose which that name expresses, and the minister and churchwardens are entitled to possession of the church and to have free access to it at all times. It is not necessary to consider what would be the rights of the vicar if part of the fabric were wilfully damaged; my judgment proceeds entirely on the principle laid down by Sir John Nicholl to which I have referred.

And no doubt, taking into consideration the history of the church, if any one part of the fabric be more subject to the rights of the vicar than another it should be the chancel, seeing that it was peculiarly dedicated to the performance of the Divine offices.

WILLIAMS and WILLES, JJ., and CHANNELL, B., concurring,

Judgment affirmed.

[*CATOR v. Board of Works for the LEWISHAM
DISTRICT. [Nov. 28.]

[*115

Metropolis Local Management Act, 18 & 19 Vict. c. 120.-District Board.-Pollution of water in land of another person.-Action.—Compensation.

1. A District Board of Works, constituted under The Metropolis Local Management Act, 18 & 19 Vict c. 120, are not empowered by that Act to pollute water flowing through the land of another person, and are therefore liable to an action at the suit of the owner of the land through which it flows, who is consequently not bound to proceed for redress by seeking compensation under that statute. Per the Exchequer Chamber, consisting of Erle, C. J., Byles and Keating, JJ., and Channell and Bramwell, BB.; diss. Pollock, C. B., and Pigott, B.

2. It makes no difference in this respect that the works executed by the District Board were necessary for the abatement of a nuisance, even in the land of the party injured. Id.

3. Nor that the water thus polluted lay outside the district over which the authority of the District Board extended. Id.; reversing the decision of the Queen's Bench, consisting of Cockburn, C. J., and Blackburn, J.

4. Quere, whether the Metropolitan Board of Works are so empowered by the Act?

THIS action, commenced on the 3d June, 1862, was for permanently fouling and polluting a certain stream and a certain watercourse, in the county of Kent, called The Poole River and The County Bridge Stream respectively, flowing through certain land the reversion of which was in the plaintiff, to his injury as such reversioner.

The defendants pleaded not guilty: that the plaintiff was not possessed of the reversion: that he was not entitled to the flow of the stream and watercourse without being fouled or polluted: and a justification under The Metropolis Local Management Act, 18 & 19 Vict. c. 120.

The plaintiff joined issue on the first three pleas: and to the fourth new assigned for grievances committed in excess of the alleged rights and powers in that plea *mentioned and on other occasions, and for other purposes than those therein referred to.

[*116

The defendants pleaded not guilty to the new assignment, and issue was joined upon it.

At the Kent Summer Assizes in 1862, a verdict was by consent entered for the plaintiff, subject to a case to be settled by a barrister, by whom the following special case was settled accordingly.

The plaintiff is owner of the reversion of certain lands through which flows a stream called The Poole River, and of a watercourse which is known by the name of The County Bridge Stream. The defendants are the Board of Works for the Lewisham District, constituted, on the 1st of January, 1856, under The Metropolis Local Management Act, 18 & 19 Vict. c. 120.

The Poole River is a natural stream of considerable width and depth. The County Bridge Stream flows in a deep dike or ditch, and except in wet weather is narrow and shallow. The plaintiff's lands are not within the defendants' district, nor within the area to which The Metropolis Local Management Act applies.

The injury of which the plaintiff complains is the pollution of the County Bridge Stream and the Poole River, by the discharge through sewers constructed by the defendants of large quantities of filth into the watercourse called the County Bridge Stream, which joins the Poole River at a point about 400 yards from the outfall of the sewers. It is admitted that the flow of filth into the plaintiff's watercourse and stream is such an injury to the reversion as would entitle him to maintain this action if the remedy by action be not taken away by The Metropolis Local Management Act, 1855.

*117] *Prior to the year 1852, but few houses had been built in the district over which the jurisdiction of the defendants as a Board of Works now extends. The sewage from some of those houses escaped either by open drains cut for the purpose, or by percolation through the soil into open watercourses. These watercourses had a common outfall through a culvert, which has existed for more than twenty years, into The County Bridge Stream, and a small quantity of the sewage which escaped into the watercourses was carried into The County Bridge Stream and thence into The Poole River, but without fouling either to any appreciable extent.

In the year 1852, the erection of the Crystal Palace at Sydenham was commenced, and in that and the following years a great number of new houses were built within the defendants' district. A great portion of the sewage from The Crystal Palace and from the new houses was carried off in the same manner as the drainage of the houses previously built, viz., through the open watercourses and thence through the culvert before mentioned into The County Bridge Stream. The flow of sewage into The County Bridge Stream was in consequence increased, and the effect was to pollute the latter and also The Poole River to an appreciable, but not to a serious extent.

The open watercourses continued to be used for the drainage of a large number of buildings within the defendants' district down to the year 1859. About that time the condition of the watercourses had become a serious nuisance to the inhabitants of the district. Large quantities of filth accumulated in them, the effluvia from which were of the *118] worst description, and in many places *the adjacent soil was overflowed and saturated with offensive matter.