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Decisions of the Superior Courts of New South Wales, 1788-1899

Hall v Scott (1830) NSW Sel Cas (Dowling) 437; [1830] NSWSupC 29

church pew, church, government of, trespass

Supreme Court of New South Wales

Dowling J., 6 April 1830

Source: Sydney Gazette, 10 April 1830[ 1]


(Before Mr Justice Dowling and a Special Jury)


Hall v. Scott

This was an action of trespass, brought by the plaintiff, Mr. E. S. Hall, against the defendant, the Rev. Thomas Hobbes Scott, late Archdeacon of New South Wales.  The damages were laid at £100.- The defendant pleaded the general issue.

Mr. Keith opened the pleadings.

Mr. Wentworth stated the case to the Jury, and called the following witnesses:-

James Norton Esq. - I am Registrar of the Archdeacon's Court, and was so in the year 1828; in that capacity I addressed one, I believe four, letters to the plaintiff, in reference to the pew, the subject of this action [letters produced]; these letters are in my handwriting, and are addressed by me to the plaintiff; I can't say immediately that I received instructions to write them from the defendant; I used to receive instructions from the late Archdeacon, but I always understood they came, through him, from the Church Corporation, I do not know, except from the report, that the plaintiff was ejected from his pew; I never saw him obstructed; I saw him sitting in the aisle once, and only once; I heard the constables were placed in the church; I gave them no orders; the defendant was frequently in the habit of seeing me at that time; I had frequent conversations with him, and I have no doubt that I have had some conversation with him relative to the subject of this action, but I can't say positively; I am not aware that the defendant had any communication whatever with the constables who were placed in the church, they were there with his knowledge, but I know it was not by his advice; I am quite sure that the acts alluded to might have been committed without his desire; I think the defendant complained of what he considered a grievance, and these steps were taken in consequence; I think, indeed I am sure, that the constables called upon me and asked me if I had any directions to give them, but I declined giving any; I think it very probable that the constables might have been employed without the defendant's seeing them.

Cross-examined by Mr THERRY - I am very frequently consulted about church affairs; I considered the defendant, in his communications with me, as the organ of the Church Corporation; Mr Cowper, the Clerk of Corporation, usually wrote to me in matters which could not be well mistaken, but, on all other occasions, the defendant called on me, or I was desired to attend at the Office of the Corporation.

To a Juror. - There are no such persons as church warden sin the Colony, nor any committee for the regulation of church affairs except the Church Corporation; it is composed of the Archdeacon, the Chaplains, and the Attorney and Solicitor General; I believe minutes of the proceedings are kept.

James Young. - I am clerk of St. James' Church, and was so in the year 1828; I know the plaintiff; he occupied a pew and paid rent for the last 6 months of 1827, and the first 6 months of 1828; I was authorised to receive the rents of pews and there are my receipts; I can't tell the conditions on which the pew had been let to the plaintiff; I should suppose that the letting to the plaintiff was from the Rev. Mr. Hill; I remember when the beadles attempted to prevent the plaintiff from coming to his pew, but I can't say they endeavoured to keep him out of the aisle; I do not know under whose orders the beadles acted; I never heard any conversation between the Rev. Mr. Hill and the defendant on the subject of the plaintiff's pew; I can't say whether the plaintiff's pew was locked on the 6th July; I know it was barred and locked on the 13th of July;' I can't say by whose orders the lock was put on; plaintiff and his family were very regular attendants at church; I never had any conversation with the defendant about the pew; never heard him give any orders about it; the pew was checked over, and I don't know for what purpose, except to keep Mr. Hall out; I don't know when this was; it was some time in the beginning of July, 1828, or it might be later; it remained decked over for several weeks, and had the door secured by a lock and an iron bar; the pew was near the pulpit, and the officiating minister must have had it in his sight if he looked that way.

Cross-examined. - Plaintiff used the pew about twelve months - it was a large pew, and was subsequently divided into two, as was done with all the other large pews, except two or three; the object of the division was to enlarge the accommodations.

Re-examined - Some of the pews were not divided; Mr. Hall, I believe, has nine or ten daughters; Mr. M'Leay's pew is not divided, nor Mr. Hill's.

To a Juror. - I told the plaintiff that he could not be permitted to occupy the pew any longer, but I had no orders to tell him so; I told him I heard so.

To the Judge - When the plaintiff was prevented from going to his pew, service had not begun.

Williams Beale, a carpenter, stated, the he had locked and roofed in the pew at the desire of the Rev. Richard Hill, and was paid for it in the ordinary way.

The Rev. Richard Hill. - I am officiating Minister at St. James', and one of the Committee appointed under the Proclamation of Sir Thomas Brisbane, to let the pews in that Church which was built by the Crown, out of the money of the British Treasury, as I should suppose, and by convict labour; I was in the Colony when the foundation-stone was laid; in July 1827, I let part of a pew to plaintiff; the other half belonged to Mr. Allen, and was occupied by Mr. Richard Allen in the name of his brother; plaintiff paid no rent till after he had notice that he would not be permitted to remain in possession; notice was given when the year had nearly expired; I think I was present at the meeting of the Church Corporation when the first letter was addressed from Mr. Norton to the plaintiff; I believe the defendant was also present; the defendant was Vice-President, and always presided except when the Governor was present; the letters written by Mr. Norton did not proceed from the Corporation, I should conceive the directions with respect to the plaintiff proceeded from me; the pew occupied by the plaintiff was wanted for a public pew, thought it has not since been used for that purpose; it was intended for the civil officers; it is now occupied by Col. Snodgrass; the plan for the alteration of the pews in the church was my own design, and submitted by me to the defendant; I would not have done it without his sanction; I directed the lock to be put upon the pew, in consequence of the plaintiff's refusal to give it up, and the intention expressed by him to occupy it by force; I can't charge my memory  that I had any conversation with the defendant about it, but it is very probable that I might have had; I thought, at that time, that the Archdeacon alone, had the power of apportioning the seats in the church; plaintiff got into the pew by forcing the lock; I afterwards referred the servants of the church for directions to the Attorney General, and he directed them not to allow the plaintiff to go into the pew; I had some conversation with the defendant about it, and he directed me to apply to the Attorney General, and, I think, to Mr. Norton; it certainly was by the advice of the defendant that the pew was decked in.

Cross-examined - The difficulty of procuring accommodations for the various applicants led to the alteration in the arrangement of the pews, and was the sole cause of the plaintiff's being disturbed.

Wm. Hamilton, a constable in the Sydney Police, stated that he was directed to go to St. James's Church on the occasion in question, and to prevent the plaintiff from occupying the pew; there was some altercation between plaintiff and the beadles.

Thomas Bates, beadle of St. James's Church, stated that the plaintiff got possession of the pew, on the morning of the 6th of January, before he and his companions could prevent him; on the 13th constables were stationed at the pew, but witness did not see the plaintiff obstructed by the constables; he attempted to get into the pew, and told me he would knock me down if I insulted him; he had a large screw-driver in his hand which he brought with him to force open the pew; I have seen him prevented from getting into his pew four times; I prevented him once myself, acting under the orders of the Attorney General.

The plaintiff closed his case.

Mr. THERRY addressed the Jury on behalf of the defendant, to the following effect: - Gentlemen of the Jury.  On this occasion I appear, with my learned friend Mr. Norton,, for the defendant; and confidently submit upon the declaration, as well as on the evidence adduced to sustain it, that there is no case whatever against my client.  We certainly did labour under considerable difficult at the commencement of his trial, inasmuch as, we were without any means of communicating with the defendant as to the live of defence he would desire to adopt; - the writ having been only served upon min on the morning of his departure from the Colony.  But, gentlemen, that difficulty has been wholly removed by the total failure of the case this day. Gentlemen, what can be the object of bringing this action, after the lapse of time which has occurred since the commission of the Acts complained of ?  The trespasses alleged in the declaration are laid to have been committed so far back as July 1828; - the defendant was in the Colony many months after that period; and yet, gentlemen, it was only on the very morning of his departure, at the very moment he was proceeding on board the ship which was to convey him from these shores, that he received notice of this action having been commenced against him. Surely, the proper time to have brought forward these proceedings was when the defendant was on the spot, and had an opportunity of meeting his accuser face to face; and I would ask you, gentlemen, what fair motive could have influenced this plaintiff in departing from a line of conduct so obviously the best calculated to bring the real merits of this case fairly before you?  But, gentlemen, what is the nature of this action?- Is it for trespass on the person, or in a pew? Because if it be for trespass in a pew, I contend, upon the evidence that the plaintiff is out of Court, inasmuch as the evidence contradicts the assertion that he had such a possession as would entitle him to maintain an action of trespass.  Gentlemen, what are the circumstances of this case, divested of the exaggerated statements with which it has been introduced to you this day? It is in evidence before you, that it became necessary to make some alteration in the arrangements of the Church, in order to afford accommodation to the various applicants for pews.  Those arrangements were acquiesced in by all parties; and so far from Mr. Hall being excluded, enlarged accommodations were offered to him - a pew which, you have it in evidence, had been previously appropriated to a school, and situated in a part of the Church suitable to his station in society and to the number of his family.  Gentlemen, I ask you, where, then, is the reasonable cause of complaint; particularly when you recollect that the terms upon which he was originally permitted to occupy the pew from which he had been removed, were that he was to hold it subject to any arrangements which it might, at a future period, be found necessary to make in the distribution of the pews? - Gentlemen, this is a very different case from what has been presented to you on the other side, wherein so much was said about ousting the plaintiff from his pew, with beadles and bludgeons. And, gentlemen, I do not know whether this law be good law here, (though I don't know why what is law for the people of England, should not be good enough for us in this Colony) but I find it laid down by Sir John Nichols (3d Phillimere) in a decision on this subject, that the legal possession of pews in a church is in the Ordinary, and that he is entitled to make alterations and amendments suitable to the general convenience of the parishioners. [The learned counsel referred to the case of Clifford v Wicks, Burnwell and Alderson, where it was decided that a person having a right to sit in a pew has not an exclusive possession, and he cannot support trespass against a stranger, the possession of the church being in the parson.] - Gentlemen, you have therefore, to consider whether there was a necessity for affording increased accommodation for the parishioners, whether the pew offered to the plaintiff was suitable to his station, to the wants of his family, and in which a reasonable man ought to have acquiesced, and also the condition on which he was originally permitted to occupy the former pew - namely, that his tenure was to be considered subject to such arrangements in the disposition of the pews as it might be found necessary, at any time to adopt. - Gentlemen, we now come to the contrast which has been drawn between the acts of Archdeacon Scott, and of Mr. Hall.  The learned gentleman on the other side was anxious to represent to you that Mr. Scott's voice was ``all for war", while the meek voice of Mr. Hall was ``all for peace".  You are called upon to mark the hostile spirit which characterised the acts of Mr. Scott; but, gentlemen, I refer you to the letters which have been this day laid before you, as evidence of the hostile spirit which is alleged to have actuated the defendant.  The first of these letters from the Registrar of the Archdeacon's Court (which were written, it should be remembered, not by desire of the defendant, but of a committee) merely contains a simple statement that arrangements were in progress for the purpose of affording increased accommodations to the parishioners, and that the plaintiff, in consequence, could not be permitted to retain possession of the pew he thus occupied, and informing him that another pew had been appropriated to his use.  Well, gentlemen, I don't see any thing very hostile in that.  The second letter contains an intimation, in case the plaintiff attempted to take possession of the pew by force, as he had declared his intention to do, that measures would be taken go preserve the peace. Gentlemen, it was the duty of those who had the Superintendence of the Church to provide for the preservation of the peace of the congregation, when they had reason to suppose it would be disturbed, and they would have been guilty of a dereliction of their duty if they had not done so; but, gentlemen, what evidence of a hostile spirit is to be collected from this, or from the succeeding letter, warning the plaintiff that, if violence were again resorted to, his conduct would be brought under the notice of the police?  Why, gentlemen, where is the hostile spirit here? - or is it not rather to be found in the conduct of this meek plaintiff, who has been represented to you, as such a devoted attendant at church, morning and evening, however inclement the weather (and in a paper which I can't make evidence, he is advertised as such) than in the acts of the defendant? - Gentlemen, look at the plaintiff's conduct as detailed to you by the officers of the church.  Forcing his way, with a burglarous instrument, gentlemen, - seeking to provoke a contest, and make the Church of God, the Waterloo of his fame!  If the plaintiff knew that he had a legal claim to the pew in question, will any one suppose, after the experience we have had in this Court, that he did not know where to seek redress?  Gentlemen, the Ordinary and the officers of the church only acted properly in opposing his forcible attempts to commit a desecration of the Church of God.  He comes, gentlemen, armed with turn-screws and burglarous instruments, to take possession of this pew by force; constables are introduced to preserve the peace, and this is the whole amount of that hostile spirit which you have been told was displayed by the defendant. So much, then, for the contrast between the conduct of Archdeacon Scott and of Mr. Hall.  But, gentlemen, if you attend to the evidence, I confidently submit that you will not find one tittle to shew that the defendant had any thing whatever to do with these transactions.  The plaintiff knew well that it was impossible for him to connect Me. Scott, in any way, with these occurrences; and so gentlemen, the learned Counsel on the other side was under the necessity of bringing in a numerous class of persons, and states to you that the defendant was deprived of his pew by Mr. Scott, or by the Attorney General, or by Mr. Hill, or by Mr. Norton, or by somebody  Gentlemen, I have read a fable, and no doubt you have read it too, which is quite applicable here.  A lamb came to drink at a stream, when a wolf, who was drinking higher up, anxious to seek a cause of quarrel, accused the lamb of muddying the water.  The poor lamb submissively replied that it could not be, as she was too far down the stream.  ``O, said the wolf, if it was not you it was your father, or your grandfather, or (as the learned gentlemen on the other side told you) somebody" and immediately pounced upon his victim.  Gentlemen, I will venture to say, that you cannot find one tittle of evidence to shew that the defendant at app participated in the acts done on the occasions alluded to.  Well, gentlemen, if I have succeeded so far in directing your attention to the evidence, and requesting you to pay particular attention to that part of it which goes to father these acts on somebody and have shewn that the defendant was not the person.  I have succeeded to the full extend of my person, I have succeeded to the full extent of my desire this day.  You will find that the conduct of the defendant throughout was calm, peaceable, and so far as he was concerned, strictly legal.  After a breach of the peace had been committed, he refers to the Attorney General as the proper officer to direct the necessary measures to preserve it.  The communications made to the plaintiff, as a parishoner [sic] are made through the Registrar; in fact, through-out the whole transaction, the line of conduct adopted by the defendant was such as ought to have marked the proceedings of a dignitary in his situation.  If it were necessary, I could recapitulate the evidence given here to-day; but, gentlemen, the only question for you is, whether you consider the defendant was so identified with these proceedings, that if an assault was committed, it was done with his privity, advice, or direction?  Examine the evidence given by all the witnesses and you will find they all state that they acted under the orders of Mr. Hill or of the Attorney General, or, as some of them suppose, of Mr. Norton : but on no occasion have we evidence of any direct communication with the defendant.  But, gentlemen, what were these directions, from whosoever, they proceeded?  There is no evidence to shew that they went farther than what the witnesses have stated, namely to preserve the peace.  We have no evidence at all of trespass; and with respect to the assault the only insistence of actual contact with the defendant, is on the testimony of one of the beadles who exhibited a hollow stick about four inches long, and of about two ounces' weight.  The plaintiff was also armed with an instrument for enforcing his supposed right; but on either side, no violence whatever was committed.  Gentlemen, if I feel any difficulty in addressing you to day, it is because there are really no materials in the plaintiff's case to supply topics for remark.  The case has altogether broken down; for I again submit to you, that there is not a little of evidence to connect my client with the proceedings which are the subject of the present action.  Then, gentlemen, with what show of fairness can the learned Counsel on the oiher hand urge those grounds of accusation which he preferred against Mr. Scott, that his conduct was that of a tyrant and an oppressor; as a person who sought to convert the house of God into a den of theives [sic]?  These are harsh epithets to apply to a dignitary of the established religion of the Country.  They were as unmerited too as they are severe; there was no evidence given this day to justify or excuse them.  On the contrary if the learned gentleman had sought for the contrast of the character which he has drawn of Archdeacon Scott, he might easily have found features far different from those of the tyrant and the oppressor, which he had depicted. In the institutions and public establishments for the diffusion of education which he had promoted - and which through his zealous exertions are now spread throughout the Colony, memorials are presented which proves Archdeacon Scott to be a benefactor and a friend to the Colony - not the tyrant and oppressor which Mr. Wentworth would fain describe him.  [Mr. T. here pronounces an eulogy on the advantages and importance of good education, and continued] The merits of Archdeacon Scott will be made manifest, and his fame vindicated when the star of knowledge shall shine out on every cottage in this Colony - when these infant institutions which he established shall arrive at maturity, and when the little jargon of the little politics of the day shall be buried in oblivion.  Gentlemen, I trust that the impartial verdict of this day will do justice to the character and conduct of this venerable functionary.  This is certainly an important trial - perhaps it is as much the trial of you, gentlemen, as it is the trial of Archdeacon Scott.  Sorry should I be for your own fame, as much as for the interests of Archdeacon Scott, that you should put it in the power of any person to make such a report of these proceedings as this: - "``On such a day was tried at Sydney, the case of E.S. Hall against Archdeacon Scott.  Several witnesses were examined on the trial, which was a case of alleged trespass committed by the defendant on the plaintiff.  No evidence, however, was given by any witness which brought the charge home to Archdeacon Scott.  Nevertheless, the jury (it was a special jury of N. S. Wales), retired for a few moments from the box, and returned with a verdict of so many pounds damages, with the usual consequence of so many pounds, costs".  If it were placed in the power of any person to make such a report, depend upon it, it will soon circulate widely.  There is not a newspaper in England in which it will not appear with an appropriate commentary.  Your enemies will delight at it - the infant Institution of Trial by Jury in this Colony will receive from it injury from which it will not easily recover, and the world will wonder at the spectacle of precocious depravity, in seeing that we can be rotten before we are ripe.  But I will not suppose it possible that such an event can happen - I will not, I ought not to anticipate, that you will put it in the power of any reporter to to [sic] record such a circumstance of you - on the contrary, I have every trust and confidence in your disposition being conformable to your duty on this occasion - and though it should happen (which I can know nothing of) that any sympathy to the higher obligation of your duty - I would appeal from your prepossession and prejudice to your honesty and integrity as citizens and jurors.  That you possess these qualities I have every willingness to entert[a]in a firm belief, and in the confidence that you do so, I resign the character and interests of my client to your guardianship ands are.

The learned Judge summed up the evidence, and relying on the distinction between the law regulating the interior arrangements of churches in this Colony and in the Mother Country, which His Honor laid down in the most luminous manner, held that, under the circumstances, the defendant was liable to an action of trespass, provided the Jury were of opinion that the acts charged against him were done with his privity, consent, or advice.

The Jury retired for a short time, and returned into Court with a verdict for the plaintiff, damages £25.[ 2]


Source: Sydney Gazette, 13 April 1830


Mr. Justice DOWLING summed up this case for the Jury in substance as follows:-


I could have wished most heartily that the duty of presiding at this trial had devolved upon some other Judge of the Supreme Court. I make this deservation in consequence of it having fallen to my lot to preside at the trial of so many cases in which Mr. Hall has been either plaintiff or defendant, and especially on the trial of a cause, some time since, in which his legal title to the pew in question was involved.

If I could have yielded to my private inclinations in this respect, I should have been most happy to be excused the duty of presiding on this occasion.  Circumstances have, however, rendered this impossible.  The venerated head of this Court, is now unhappily confined to a sick chamber, and his valuable life would have been exposed to much danger, had he, during the present inclement season appeared in Court on this occasion.  You are also deprived of the Judicial assistance of my honorable and learned colleague, Mr. Justice Stephen, who happens to be absent from town.  Under such circumstances, I had no alternative, and therefore, of necessity, the duty of presiding on this occasion has devolved upon myself.

I have reason to know that this case might have been disposed of during the week before last, under the superintendence of His Honor, the Chief Justice, but it seems that one of the parties (the plaintiff himself) was not then ready to proceed with the trial although the case had been on the cause paper several days, and had been actually called on.

The case having been peremptorily fixed for this day, I do not see with what propriety I could have receded from this duty without the concurrence of both parties.  No intimation of this kind having been given, I could not have taken upon myself to postpone the trial, at my own instance, however gratifying to me personally this course of proceeding would have been, and therefore I have taken upon myself to discharge the public duty thus imposed upon me as one of the Judges.

Gentlemen, I now approach the discharge of this duty, under the like obligation with yourselves.  You are under the solemn obligation of an oath, well and truly to try this case according to the evidence. I am bound by my oath of office, to administer the law of the land according to the best of my understanding, learning, and ability; - and this I shall do, on this, and on all other occasions, I hope with uprightness and fearless integrity.

I now invite your attention to the nature of the case which you are called upon to try.

The substance of the plaintiff's complaint is, that he has been unlawfully dispossessed of a pew which had been occupied by him in St. James's Church.  In form, the action is brought for an assault on the plaintiff's person , and causing him to be forcibly prevented from taking possession of a pew in the church, of which he had been in possession for eight months previously.  The declaration, if it may be so called, contains five counts, four of them comprehending four alleged assaults and trespasses, two committed on the 6th, and two on the 13th July, 1828.  The last county complains of divers assaults and trespasses committed between the 30th June, 1828, and the bringing of this action.  The declaration is not very artificially framed, and may be considered rather as a bill of particulars of the plaintiff's causes of action, filed conformably with the rules established for the partiaular [sic] practice of this Court, than a technical declaration in trespass, agreeably to special pleading precedents for this form of action.  To this declaration, or bill of particulars, the defendant has pleaded not guilty, and he has filed a notice, that he shall at the trial of this cause give in evidence, that at the several times when the supposed assaults and trespasses complained of by the plaintiff wee committed, he, the plaintiff, conducted himself in a violent and improper manner, and forcibly attempted to break into the pew in the said declaration mentioned, and that the beadles and other persons placed in the said church, ``by and with the consent and concurrence of the said defendant", who was then Archdeacon of the Colony of New South Wales, to preserve the peace in the said church, and to prevent disturbance therein, did oppose and resist the said attempts and endeavours of the said plaintiff, as it was lawful for them to do.

I shall have occasion presently to direct your attention more particularly to this special notice.

Allusion having been made in the course of this trial, to a former action brought in the name of the King against the present plaintiff for breaking into the identical pew in question, it is proper for me to premise that there is great difference in principle between that case and the present.  In that case the crown, at whose expense the church in question was erected, having the soil and freehold therein, brought trespass against the present plaintiff for breaking into the pew.  The present plaintiff set np title to the pew, under a letting to him by the Committee appointed  by Governor Brisbane's Proclamation for the purpose of letting pews, under annual holdings to the inhabitants of Sydney, which letting had not been determined by a regular notice.  Under the peculiar circumstances then disclosed, the Assessors, who tried the case, determined that the title pleaded by the then defendant, was negatived by the evidence.  On the present occasion, the then defendant brings this action against a supposed wrong doer, for disturbing him in his possession of the pew.

The first question therefore for consideration is whether the press can maintain trespass under the circumstances of this case.

Trespass, is what is called a mere possessory action, and my, as against a mere wrong-doer be maintained upon a bare right of possession, without strict legal title in the person bring it.

Such an action as this certainly could not be brought in the mother country by the occupier of a pew, inasmuch as the possession of the church is in the parson; Stocks v. Booth, 1 T. R. 428.  But the churches of this country stand upon a very different footing and principle from the churches of the mother country.  It is not necessary for me to encumber your minds with all the learning upon this subject; but it may be convenient for me to point out for your information some of the circumstances which distinguish church property in the parent state from the like property in this country with respect to the ordering and disposition of seats and pews.  By the common law, the ordering of seats is governed by the following general rules.  Of common right the soil and freehold of the church is the parsons;' the use of the body of the church, and the repair of it common to the parishioners; and the disposing of seats therein is the right of the ordinary; and generally where the parishioners repair, the ordinary shall dispose.  These heads are everywhere laid down in the cases on this subject, and have never been disputed; Gibson's Codex tit. 6. c. 4. a. Fuller v. Lane, 2 Add. Eccl. Rep. 419.  By the general law, the right to a pew in a church in the mother country is matter of temporal easement, connected with an annexed to a house or tenement, situated within the parish in which the church exists.  The inhabitants, in general, have no other right to a pew, and as soon as their occupation of the house ceases, their right to the pew ceases, for the pew, as matter of temporal easement, goes with the house to the next inhabitant.  The only exception to this rule is, where a non-parishioner has a right to a pew by a faculty, by prescription, or immemorial custom.  I do not advert to modern churches erected in, and in the neighbourhood of London, by virtue of Acts of Parliament, because the Acts passed for erecting such churches make special provisions with respect to pews and seats therein, but which do not touch upon the general principles applicable to other churches in the mother country.  By the law of England, in the case of a parish church, no doubt the distribution of seats among the parishioners rests with the ordinary.  The churchwardens are the officers of the ordinary; they are to place the parishioners according to their rank and station, but they are subject upon complaint to the control of the ordinary : Pettman v. Bridger, Phill. 323.  The control here spoken of, I take to be in the ordinary's judicial capacity, in determining disputes and composing differences between the churchwardens and the parishioners in the disposition of seats.

Such is the general law upon this subject in the mother country; I do not affect to go more into detail into this point, because it is unecessars [sic] to this case.

Then on what footing are the churches of this colony place?

In the first place I do not find what this country has ever yet been regularly divided into parishes, nor have the churches erected, ever been properly dedicated to the purposes of parish churches on the principle which governs parish churches at home. The churches erected have been built at the expense of the crown with convict labour.  The ministers officiating are appointed and paid by the crown, and are removable at pleasure under certain circumstances.  Their stipends are fixed and annual, and their duties are not confined to one fixed church or parish, but may be transferred by the proper authority to any part of the territory where the cure of souls renders their presence necessary.  There are here no church wardens, church rates, nor any of the incidents of parochical [sic] government, so well known in the parent state.  The church in question was erected at the expense of the crown for the accommodation of the inhabitants disposed to attend public worship, subject to such regulations as should be thereafter prescribed, toughing the distribution of paws [sic].  We find that this church was consecrated for religious worship on the 11th February, 1824.  On the 17th December 1823, Sri Thomas Brisbane, the late governor of this territory issued a proclamation appointing the Rev. Richard Hill, J. Oxley, Esq. and James Bowman, Esq. a committee with power to contract with any of His Majesty's subjects for the hire of pews or seats in the said church at reasonable rents, and by the year".  Under the authority of this proclamation, the Rev. Richard Hill has stated that he let the pew in question to the plaintiff, who appears to have occupied and paid rent for it for a year ending in June 1828.  It does not appear that previously to the end of that year the plaintiff had received any notice to quit or yield up possession.  Having regard to the nature of this letting, - looking at it (without speaking profanely) in the light of the ordinary contract which subsists between landlord and tenant I think I am bound to hold that the plaintiff was entitled to some notice before his tenancy could be determined.  What that notice ought to have been I am not now called upon to consider.  It is sufficient for the present for me to direct you in point of law, that in the absence of any notice to quit, the the [sic] plaintiff after the expiration of the year ending June 1828, had such a right of possession as would entitle him to maintain trespass against a wrong-doer in preventing him from gaining access [?] enjoying his pew.  Then the question is whether the party who is supposed to have disturbed his possession, can be considered as a wrong-doer.  For the reasons already intimated I apprehend he must in law be so considered.  Assuming that the late venerable Archdeacon is accountable for this act (which is a question of fact for your determination) I conceive that he had no power to interpose and determine the temporal contract subsisting between the committee and the plaintiff, whatever authority he might possess in virtue of his Archediaconal functions in spiritual matters.  In this light, I think he must be considered as a wrong doer, if he, in fact disturbed, or was the direct cause of disturbing the plaintiff's possession.  This latter is a point depending entirely upon the evidence.

Before I come to this part of the case, I must call your attention to what may be regarded as the defendant's special plea of justification.  Assuming that the plaintiff had, (as is therein alleged) conducted himself in a violent and improper manner, and forcibly attempted to break into the pew, however in decorous such conduct might be in a place dedicated to religious worship, still if the conduct of the plaintiff, proceeded from a bona fide desire of merely exercising a claim of right to the pew, I am not aware of any law that would justify his forcible expulsion in the way complained of, so long as the officiating minister and the congregation were not disturbed. With a view to this latter view of the case, I enquired whether at the time the alleged trespass was committed, divine service had begun, and it was stated by one witness that it had not, and that the Minister had not then entered the church.  If this had been the case of a person wantonly obtruding himself into a place dedicated to divine worship, and disturbing the minister or congregation in their devotions, the removal of such a person, would I apprehended be justifiable under the provisions of the Toleratien Act 1 W. & M. c. 18. s. 18.  But this is clearly not a case within the contemplation of that act.

Having thus pointed out to your attention the matters of law arising out of the facts of this case; first, that the church of St. James's does not stand on the same footing with a parish church in England; secondly that the plaintiff by reason of the contract between him and the committee, had at least a right of possession in the pew until properly determined; and, thirdly, that the late venerable Archdeacon, as ordinary, had no authority to interpose for the purpose of rescinding, controlling, or otherwise interfering with such a contract; - the next and most important question, as it respects the defendant is, whether he did in fact commit the alleged trespass.  In order to make him liable as a trespasser in law, it is not necessary that he should personally do the act of which complaint is made.  It is sufficient, if it be done under his direction or authority.  This is a question of evidence peculiarly for your consideration; and I conjure you to apply your minds calmly, discreetly, and conscientiously, to the facts really proved in evidence, taking care to approach this question free from any collateral bias or impression, which you may have received upon this subject elsewhere.  You are called upon by your oaths, well and truly to try this case according to the evidence.  No one has suggested that this venerable gentleman took any active personal part in this transaction.  Whatever was done was done by other persons in his absence, and that in the least offensive way in which such a trespass could be committed.  The question is whether was was done, was done by the orders or directions of the defendant.  If it was, then the maxim of law ``qui facit per alium, facit par se" applies.

The special plea admits that the beadles and other persons placed in the church, were placed by and with the concurrence of the defendant, who was then Archdeacon of the Colony of New South Wales, to preserve the peace, and prevent disturbance, &c. If you believe the evidence they were placed there to prevent the plaintiff from gaining access to the pew, and that they did in fact prevent him.  Was this done by and with the concurrence of the defendant?  It appears from the letters read in evidence, that the alteration of the pews was effected with the concurrence and subject to the approbation of the Archdeacon.  The Registrar of the Archdeacon's Court, writes on the 24th June, 1828 , to the plaintiff, under the authority of the Archdeacon, informing him that alterations had taken place in the church, and that he might have two other pews, Nos. 96 and 97, in lieu of the one he then had, as a yearly tenant.  Mr. Hill states, that he dare not make the alteration in the pews without the Archdeacon's sanction; and he says that it is more than probable that he consulted the Archdeacon about putting the lock on the plaintiff's pew, and that upon hearing that the plaintiff intended to use violence, it is more than probable that the Archdeacon advised him to con[sult] with the Attorney General or Mr. Norton; and he adds, ``I certainly acted under the Archdeacon's advice". These are some of the principle circumstances relied upon by the plaintiff's counsel, to shew that the alleged trespass was committed, under the authority and direction of the defendant.  I shall, however, read over to you, the whole of my notes of the evidence, and I invite you to a candid consideration of all the circumstances proved. [The learned Judge then read his notes of the whole evidence.]

If, gentlemen, you can upon this evidence conscientiously bring yourselves to believe that the alleged trespass was committed under the authority or direction of the defendant, then you will be warranted in finding your verdict for the plaintiff; but if otherwise, then you ought to find for the defendant.  If your verdict be for the plaintiff, then the remaining question will be, the amount of damages you think the plaintiff fairly entitled to recover.  This is a question particularly within your province to determine.  The plaintiff appears to be the father of a large family of young children and has been a constant attendant at church, and is himself a person of devout and religious habits.  In this point of view he is certainly entitled to some compensation for being deprived of his pew.  At the same time, in determining the amount of compensation, some regard must be had to the motives under which the defendant appears to have acted.  There is no proof whatever before us, that this was a wanton and needless act on the part of the defendant.  It is clear that the alteration of the pews in the church was bona fide, and made for the general accommodation of the inhabitants.  By this alteration 20 additional pews were gained.  The Archdeacon may very honestly though erroneously have thought that he had the power as ordinary, or disposing of the seats in this church in like manner with the ordinary in the mother country.  It turns out upon a nice investigation of his powers, that he had no such authority; but if this was an honest mistake (and there is no evidence to the contrary) surely you would not visit him with the same measure of damages that would be due in a case of wanton, harsh, and unseemly aggression.   Whatever was done appears to have been done under legal advice.  The Attorney General and another professional gentleman of eminence, appear to have been consulted as to the course to be pursued.  Under that advice the beadles are sent to the church to prevent the plaintiff from going to his pew.  If then the defendant acts honestly under that advice, it would be unreasonable to visit him with severity.  The advice certainly will not protect him for legal liability, but it ought to go a great way to relieve the defendant from improper motives.  In such cases, motives must always be regarded.  The defendant personally takes no part in the trespass, for it appears that he was out of town at the time it was committed.  Another consideration is, that this action is brought somewhat of the latest, and the defendant is not served with process until he is just on the eve of departing from the Colony.  This has been stated and not denied.  Under these circumstances you are now to measure out the quantum of damages which this case fairly demands.  If you are satisfied that the trespass was committed under the authority of the defendant, then apply your minds, calmly, temperately, and considerately, to the question of damages.  Suffer no excitement or undue impression to betray your cool judgment; but let your verdict be such as you think will be satisfactory to your consciences as honest and upright men, when you return again to your homes and the business of this world.



[ 1]See also Australian, 7 April 1830.

Justice Dowling summarised this case in his notebook (Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, pp 299-300) as follows: " Where pew was let to Plaintiff in St Jame's Church under a contract between him and the committee for letting Pews therein; and he was disturbed therein by the Archdeacon of  New South Wales without without [sic] notice; Held that the latter was liable in trespass for the disturbance."  He also noted that the plaintiff had allegedly been in possession of the pew for eight months.

For other cases concerning church pews, see R. v. Hall (No. 1), 1828; R. v. Hall (No. 1), 1829.

[ 2]On 7 February 1831, Governor Darling sent a despatch to Sir George Murray, requesting that the British government should pay these damages and costs (Historical Records of Australia, Series 1, Vol. 16, pp 75-76).

Published by the Division of Law, Macquarie University