Owen v. Henman , 1 Watts & Serg. 548 ( 1841 )

The opinion of the Court was delivered by

Sergeant, J.

The questions arising in this case are on the sufficiency of the cause of action stated in the declaration, and ought properly to have been raised by a demurrer to the declaration, and not by asking the court to charge on the evidence. As however, this course has been consented to, and the cause has been agreed to be treated as if it were a demurrer to the declaration, we shall so consider it.

The complaint in the narr., succinctly stated, is, so far as it concerns the plaintiff, that the defendants unlawfully disturbed him in the hearing of the preaching of a clergyman in the church and building, in so ample and beneficial a manner as he might have done, by making loud noises in singing, reading, and talking, he being a member of the congregation, and having the right to sit there, and to hear divine service, and exercise religious worship therein, the said building being, according to their rules and regulations, the property of the said congregation, and used and occupied by them. Whatever rights and privileges the plaintiff may, with others, have in the building, we have no doubt there are remedies at law for the full protection of them, provided they are sought in a proper manner. But it does not, therefore, follow that he can maintain an action on the case for a disturbance such as is here laid.

In the first place, the injury alleged is not the ground of an action. He claims no right in the building, or any pew in it, which has been invaded. There is no damage to his property, health, reputation, or person. He is disturbed in listening to a sermon by noises. Could an action be brought by every person whose mind or feelings were disturbed in listening to a discourse, or any other mental exercise, (and it must be the same whether in a church or elsewhere), by the noises, voluntary or involuntary of others, the field of litigation would be extended beyond endurance. The injury, moreover, is not of a temporal nature: it is altogether of a spiritual character, for which no action at law lies. It is settled that an action on the case does not lie when there is not any temporal damage, as against a woman who pretends herself single, and inveigles a man into a marriage, whereby he is disturbed in conscience. 1 Com. Dig. 180; 1 Lev. 247. Nor does it lie for refusing to administer the sacrament. 1 Sid. 34. Nor for not reading divine service to him and the tenants of his manor. Ib. 5 Co. 73 a. In 5 Barn. & Ald. 356 (7 E. C. L. 129) it was decided that an action will not lie for disturbing the plaintiff in the occupation of a seat in the body of a church, though he had contributed to the making of the seats.

Indeed it is well known, that the property of our churches and meeting-houses, and the superintendence of the congregations, and the rights to control and regulate them, and to prevent improper intrusion or interference by suit or otherwise, is uniformly vested in some corporation or trustees, in whom is placed the power to enforce the conditions of the founder, or the will of the owners. It is for them, or the organized officers, to bring actions of trespass, or, on the case, to regulate the affairs of the churches, and to protect the members in the enjoyment of their religious rights and property. In addition, any persons disturbing congregations are liable to indictment by the Act of 2d April 1822. The injury complained of, if against the will of the officers of the church, is in the nature of a nuisance or injury to them, and it is for them to seek redress.

Another objection to this action, springing out of similar causes, is, that if the plaintiff may maintain such an action, so may every member of the congregation present, whether males or females, adults or minors, and even sojourners attending, according to common usage. In Williams’s Case, (5 Co. 73), the plaintiff sued a clergyman for not performing divine service as he was bound to do, to the plaintiff, his servants, and tenants within the manor. It was held the action would not lie; for if it did, every of his tenants might also have his action on the case, and so infinité actions for one default. A man cannot have an action on the case for a nuisance done in the highway, for it is a common nuisance, and then it is not reasonable that a particular person shall have the action; for by the same reason that one person might have an action for it, by the same reason every one might have an action, and then he would be punished a hundred times for one and the same cause. Ib. Co. Lit. 56 a; 1 Com. Dig. 180.

We therefore think the court below rightly determined that the cause of action set forth in the narr. was not sufficient in law to maintain the suit.

Judgment affirmed.