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plaintiffs in the second turn, and the archbishop in the third turn. The defendant Backhouse further fays, that true it is, that archbishop Sancroft, on the death of Smallwood, did in his first turn co'late Puller; and that the church became vacant by the death of Puller; but he says, that thereupon, and according to the said act of parliament, it belonged to the plaintiffs to present in their second turn; but that archb Mop Tillotson collated Bradford by usurpation, and Bradford fo being in the said church was created bishop of Rochester, and King George the First, on the tenth of July 1720, by his prerogative presented Doctor Lisle, who was admitted; and being so clerk of the said church, was created bishop of Saint Asaph, whereupon King George the Second, by his prerogative, on the 16th of April 1744 prelented Doctor Newton, who was admitted, 3c. And afterwards the church became vacant by the resignation of Doctor Newton, by reason whereof it belonged to the present archbishop to present in his third turn, and tliat thereupon he collared the defendant Backhouse, before the issuing of the writ of the plaintiffs, by. reason whereof Backhouse is still parfon imparfoned of the church; and this, &c. wherefore, &c.

the defendant

The plaintiff's The plaintiffs reply, they ought not to be barred from having seplication to their action against Buckhouse; because protesting, that the endowthe plea of

ment of the church of Allhallows Honey-lane, was not, at the time Backhouse of making the faid aćt, of greater value than the church of Saint hortly stated. Pancras Soper-lane; protesting also, that archbishop Tillotson did

not ufurp upon the faid vardens and commonalty. For replication the plaintiffs say, that the church became vacant by the resignation of Doctor Hewton, by reason whereof it belongs to the plaintiffs to present in their third turn, yet the Archbishop and defendant Backhouse hinder them ; without this, that it belonged to the said wardens and commonally to present to the said church at the second turn, when the same became vacant by the death of Timothy Puller, as Backhouse has alledged in his plea; and this, 8c. wherefore, 63c.

Trayerfe.

tion,

Demurrer to The defendant Backhouse demurs to the replication; and shews the replica- for special causes of demurrer, that the plaintiffs have not tra.

versed, or attempted to put in issue, any matter of fact alledged. in the plea; but have traversed and attempted to put in issue

matter of law to be tried by a jury. • In Hilary

The plaintiffs join in demurrer. Upon the first argument *, the counsel for the defendants made several objections to the declaration, and to the replication,

First,

terra laft.

First, To the declaration it was objected, that the plaintiffs oft obje&ion claimed a right to the third turn, but have not shewn how they racion. are intitled to the third turn; they ought to have alledged in the declaration the yearly value of the several and respective churches at the time they were destroyed by fire; for the act of parliament is silent as to the turns, except that it enacts the first presentation to be made by the patron of such of the said churches, the endow. ments whereof were of the greatest yearly value. And it not appearing by the declaration of what yearly values the churches were, the plaintiffs have not shewn any title to the third turn, which they claim.

To this it was answered by the counsel for the plaintiff, that Answer to the although the declaration doth not express in words the respective

first objection yearly values of the three churches at the time of their deftruc. tion, yet it plainly appears upon the face of the declaration, by necessary intendment

, that the archbishop's two churches of Saint Mary le Bow, and Saint Pancras Soper-lane, were each of greater value than those of the church of Allhallows Honey-lane; for it is alledged therein, that after making the act, the church of Saint Mary le Bow became vacant by the death of Smallwood, by reason whereof Archbishop Sancroft, as in his first turn, collated the church on Puller; that the church_became vacant by the death of Puller, whereupon archbishop Tillotson, as in his second turn, collated the church on Bradford; and it must be intended that these two archbishops both collated rightfully, and the court will not presume that either of them collated by usurpation.

Secondly, It was objected by the counsel for the defendant, 22 Objection that no seisin of the advowson to present by turns is stated in the

to the decla.

ration, declaration

To this it was answered by the counsel for the plaintiff, Answer. that this declaration (as to this point) was grounded upon the act of parliament, whereupon the right of presentation commences; and alledges, that the plaintiffs and the archbishop were seised of the advowson, to present as the statute has dia rected; and it is not like a declaration in the case of coparceners, or a general patronage of a church, wherein a seisin to present must be alledged in the declaration, a quare impedit being a poffeffory writ. And the plaintiffs have also stated a seisin to present to Allhallows Honey-lane, before the fire of London.

Thirdly, It was objected by the counsel for the defendant, 3d Objection

to the declathat supposing the plaintiffs are intitled to the third turn, yet it

ration. Vol. III.

appears

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appears by the declaration that this is not the third turn; for it is alledged, that after the making the act of parliament, Archbishop Sancroft, in his first turn, collated Puller; that Archbishop Tillotson, in his second turn, collated Bradford; and that King George the First, by his prerogative, collated Lisle, which is the third turn, and terminates the first rota; that King George 2. by his preroga. tive, collated Newton, which is the first turn; that Newton having resigned, this is the second turn in the second rota; so that it does not belong to the plaintiffs to present at this turn, they claiming

only the third turn. And to thew that a presentation by the King 4 Mod. 202. by his prerogative, upon a promotion, was a turn, was cited, Cro.

fa. 69i. which was the case of a grantee of the next avoidance; the incumbent being created a bishop, the King granted the .church to have and retain the same in commendam for six years ; and it was held the grantee had lost his presentation to the next avoidance.

Anfwer.

Objection to the replication.

To this it was answered, that it is now settled, and held for good law in many modern cases, that whenever the King by his prerogative promotes an incumbent of a church to a bishoprick, the church, by such promotion, becomes void, and the King shall present thereto by his prerogative; for it seems very just, when the King by the exercise of his prerogative hath made a church void, that he should have a right to fill the vacancy; for it is but the changing one life for another, and probably the patron (notwithstanding the change) may be as near to his prefentation, as he was before, and therefore fuch prerogative presentation cannot at this day (however it may have been former. ly) be considered as a turn. See

4
Mod. 210.

2 Stra. 930. 931.

Fourthly, It was objected by the counsel for the defendants, that the replication is ill, because it has traversed a matter of law; viz. without this, that it belonged to the said wardens and

commonalty to present to the faid church at the second turn, " when the same became vacant by the death of Timothy Puller,

as the defendant Backhouse has alledged in his plea, which is a matter whereof a jury cannot judge."

To this it was answered by the counsel for the plaintiff, that where matter of law and fact are so blended and intermixed that they cannot well be separated or divided, as they are in the present case) they may be traversed.

Lord Chief Justice De Grey--As this case is to be argued again, I shall give no opinion; but think the true question is, how the rights stand upon the act of parliament ? 2dly, How those rights are affected by the two presentations by the arch

bishops,

Answer.

bishops, as in the first and second turns? and 3dly, How they are affected by the two prerogative presentations?

Gould Justice I give no opinion at present; but as the case frikes me, it seems extraordinary that the allegations of the first and second presentations by the archbishops, stated in the de. claration, thould not be sufficient to intitle the plaintiffs to this turn, it the prerogative presentations be not considered as turns, and do not stand in the way; which (as at present advised) I think they are not to be considered as turns, and if not to be considered as turns, it seems to me that the defendant Backó house

, in his plea, ought to have traversed, " That Archbishop "Tillotson, as in his second turn, in right of his archbishoprick, " collated the church on Samuel Bradford;” but, as I said before, give no opinion, as this cafe is to be argued again.

lait.

Blackstone Justice-It seems to me, that seisin of plaintiffs is well alledged in the declaration.

Nares Jultice-In Dier 228, last note in the margin, there's a case in point, that a prerogative presentation does not go for a turn; 19 Jac. 1. that it cannot operate to the injury of a third person: for constructio & actus legis nulli facit injuriam. Inft

. 148. a. 183. a. b. 2 Inft. 287 The case was, a second time, very ably argued by Serjeant The second Forfer for the defendant, and Serjeant Burland for the plaintiffs. argument in

Easter term Serjeant Forster-I shall consider how the rights of the pa. For defendtrons stand under the statute of 22 Car. 2. and how the rights ants. of the plaintiffs are affected by the two collations of the archbihops, and also how the rights of the patrons were alleated by the two presentations of the crown by prerogative, upon promotion of the incumbents to bilhopricks.

The statute of 22 Car. 2 sect. 68. mentioned in the declaration, whereupon the plaintiffs ground their title to present at this furn, as in their third turn, has ordained that the patrons of the churches united should and might present by turns to that church only which was by that act appointed to be rebuilded and eftablished for the parish church of the three united parishes, (which was to be Saint Mary le Bow) the first presentation to be made by the patron of such of the said churches, the endowments whereof were of the greatest yearly value; and therefore the plaintiffs ought to have set forth in their declaration, the value of the endowments of each church, as is done in the case of the Bishop of London versus The Mercers Company, 2 Stran. 925. touching the churches of Saint Mildred Poultry, and Saint Fitzgibb.

Mary 253

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228

TRINITY TERM 11 Geo. III. 1771. Mary Colechurch, which were burnt down by the fire of London, and united by the act for rebuilding the city, &c. but the plain. tiffs, not having alledged the values of the respective endowments of the three churches, in their declaration, at the time of the act, have not shewn any title to present in any certain particular turn, first, fecond, or third, therefore the déclaration

is ill.

To shew that the plaintiffs have no title to present in the third turn; the defendant Backhouse, in his plea, has alledged the respective values of the yearly endowments of the three churches, at the time of the a&t of parliament, and has averred, that those of Bow-church belonging to the archbishop, and Allhallows belonging to the plaintiffs, were respectively of greater yearly value than those of Saint Pancras belonging to the archbishop, which shews the turns, at which the patrons were to present according to the statute, viz. the archbishop at the first turn, the plaintiffs at the second turn, and the archbishop at the third turn: these values being averred by the plea, and not in any manner denied or traversed by the plaintiffs in their re. plícation, must be taken to be true in fa&t by the court; so that, according to the act of parliament, the plaintiffs are not intitled to present at the third turn which they claim by their declaration, and therefore the declaration is ill.

The plaintiffs have not stated any certain rota of presentation in the declaration or replication; if they had, the defendants might have traversed it, or the plaintiffs might have traversed the value of the endowments alledged in the plea of the defendant Backhouse, either of which traverses would have been material, and would have made a perfect issue between the parties, which would have put an end to the question, who is intitled to present at the third turn?

There are two material facts alledged in the plea, either of which, if plaintiffs had traversed, would have made an end of the question, viz. it is alledged therein, that the church of Allhallows Honey-lane, at the time of the making the act of parliament, was of greater value than the church of Saint Pancras Soper-lane, and that Archbishop Tillotson usurped upon the plaintiffs; but instead of traversing either of those facts, the plaintiffs have laid them out of the question, by taking them by way of protestation, and have traversed a matter of law collected from facts, which is ill; and the court and jury cannot alter or overturn the rota established by the act of parliament.

It

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