The plaintiffs replication to

the plea of the defendant Backhoufe

plaintiffs in the fecond turn, and the archbishop in the third turn. The defendant Backhoufe 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 fays, that thereupon, and according to the faid act of parliament, it belonged to the plaintiffs to prefent in their fecond turn; but that archb.fhop Tillotson collated Bradford by ufurpation, and Bradford fo being in the faid church was created bifhop of Rochester, and King George the First, on the tenth of July 1720, by his prerogative prefented Doctor Lifle, who was admitted; and being fo clerk of the faid church, was created bishop of Saint Afaph, whereupon King George the Second, by his prerogative, on the 16th of April 1744 prefented Doctor Newton, who was admitted, &c. And afterwards the church became vacant by the refignation of Doctor Newton, by reason whereof it belonged to the prefent archbishop to prefent in his third turn, and that thereupon he collated the defendant Backhoufe, before the iffuing of the writ of the plaintiffs, by reafon whereof Backhoufe is fill parfon imparfoned of the church; and this, &c. wherefore, &c.

The plaintiffs reply, they ought not to be barred from having their action against Backhoufe; because protesting, that the endowment of the church of Allhallows Honey-lane, was not, at the time of making the faid act, of greater value than the church of Saint Shortly stated. Pancras Soper-lane; protefting alfo, that archbishop Tillotson did not ufurp upon the faid wardens and commonalty. For replication the plaintiffs fay, that the church became vacant by the refignation of Doctor Newton, by reafon whereof it belongs to the plaintiffs to prefent in their third turn, yet the Archbishop and defendant Backhoufe hinder them; without this, that it belonged to the faid wardens and commonally to present to the faid church at the fecond turn, when the fame became vacant by the death of Timothy Puller, as Backhoufe has alledged in his plea; and this, &c. wherefore, &c.

Traverfe.

Demurrer to

tion.

The defendant Backhoufe demurs to the replication; and shews the replica for fpecial caufes of demurrer, that the plaintiffs have not traverfed, or attempted to put in iffue, any matter of fact alledged in the plea; but have traverfed and attempted to put in iffue matter of law to be tried by a jury.

* In Hilary term laft.

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

to the decla

First, To the declaration it was objected, that the plaintiffs ft objection claimed a right to the third turn, but have not fhewn how they ration. are intitled to the third turn; they ought to have alledged in the declaration the yearly value of the feveral and respective churches at the time they were deftroyed by fire; for the act of parliament is filent as to the turns, except that it enacts the first prefentation to be made by the patron of fuch of the faid churches, the endowments 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 fhewn any title to the third turn, which they claim.

To this it was answered by the counsel for the plaintiff, that although the declaration doth not exprefs in words the respective yearly values of the three churches at the time of their destruction, yet it plainly appears upon the face of the declaration, by neceffary 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 reafon 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 fecond 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 ufurpation.

Anfwer to the first objection

to the decla

Secondly, It was objected by the counsel for the defendant, ad Objection that no feifin of the advowfon to prefent by turns is stated in the ration. declaration.

To this it was anfwered by the counfel for the plaintiff, Anfwer. 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 advowfon, to prefent as the ftatute has di rected; and it is not like a declaration in the cafe of coparceners, or a general patronage of a church, wherein a feifin to prefent must be alledged in the declaration, a quare impedit being a poffeffory writ. And the plaintiffs have alfo ftated a feifin to prefent to Allhallows Honey-lane, before the fire of London.

to the decla

Thirdly, It was objected by the counfel for the defendant, 3d Objection that fuppofing the plaintiffs are intitled to the third turn, yet it ration. Vol. III.

appears

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 Tillotfon, in his fecond turn, collated Bradford; and that King George the First, by his prerogative, collated Lifle, which is the third turn, and terminates the firft rota; that King George 2. by his prerogative, collated Newton, which is the first turn; that Newton having refigned, this is the fecond turn in the fecond rota; so that it does not belong to the plaintiffs to prefent at this turn, they claiming only the third turn. And to fhew that a prefentation by the King 4 Mod. 202. by his prerogative, upon a promotion, was a turn, was cited, Cro. Ja. 691. which was the cafe of a grantee of the next avoidance; the incumbent being created a bifhop, the King granted the church to have and retain the fame in commendam for fix years; and it was held the grantee had loft his prefentation to the next avoidance.

To this it was anfwered, that it is now fettled, 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 fuch promotion, becomes void, and the King fhall present thereto by his prerogative; for it seems very juft, when the King by the exercife of his prerogative hath made a church void, that he fhould 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 prefentation cannot at this day (however it may have been former

ly) be confidered 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 traverfed a matter of law; viz. " without this, that it belonged to the faid wardens and "commonalty to prefent to the faid church at the fecond turn, "when the fame became vacant by the death of Timothy Puller, as the defendant Backhoufe has alledged in his plea, which is a matter whereof a jury cannot judge."

66

To this it was anfwered by the counsel for the plaintiff, that where matter of law and fact are fo blended and intermixed that they cannot well be feparated or divided, (as they are in the present cafe) they may be traversed.

Lord Chief Juftice De Grey-As this cafe is to be argued again, I fhall give no opinion; but think the true question is, how the rights ftand upon the act of parliament? 2dly, How thofe rights are affected by the two prefentations by the arch

bishops,

bifhops, as in the firft and fecond turns? and 3dly, How they are affected by the two prerogative presentations?

Gould Juftice-I give no opinion at prefent; but as the cafe ftrikes me, it seems extraordinary that the allegations of the first and fecond prefentations by the archbishops, ftated in the declaration, fhould not be fufficient to intitle the plaintiffs to this turn, if the prerogative presentations be not confidered as turns, and do not stand in the way; which (as at prefent advifed) I think they are not to be confidered as turns, and if not to be confidered as turns, it feems to me that the defendant Back houfe, in his plea, ought to have traverfed, "That Archbishop Tillotfon, as in his fecond 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.

46

Blackflone Juftice-It feems to me, that feifin of plaintiffs is well alledged in the declaration.

Nares Justice-In Dier 228, laft note in the margin, there's a cafe in point, that a prerogative prefentation does not go for aturn; 19 Fac. 1. that it cannot operate to the injury of a third perfon: for conftructio & actus leg's nulli facit injuriam. 1 Inft. 148. a. 183. a. b. 2 Inft. 287.

The cafe was, a fecond time, very ably argued by Serjeant The fecond Forfer for the defendant, and Serjeant Burland for the plaintiffs. argument in

Eafter term

laft.

Serjeant Forfer-I fhall confider how the rights of the pa- For defend trons ftand under the statute of 22 Car. 2. and how the rights ants. of the plaintiffs are affected by the two collations of the archbifhops, and alfo how the rights of the patrons were affected by the two prefentations of the crown by prerogative, upon promotion of the incumbents to bishopricks.

The ftatute of 22 Car. 2 fect. 68. mentioned in the declaration, whereupon the plaintiffs ground their title to prefent at this turn, as in their third turn, has ordained that the patrons of the churches united fhould and might prefent 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 parifhes, (which was to be Saint Mary le Bow) the firft prefentation to be made by the patron of fuch of the faid churches, the endowments whereof were of the greatest yearly value; and therefore the plaintiffs ought to have fet forth in their declaration, the value of the endowments of each church, as is done in the case of the Bishop of London verfus The Mercers Company, 2 Stran. 925. touching the churches of Saint Mildred Poultry, and Saint Fitzgibb. Mary 253

Mary Colechurch, which were burnt down by the fire of London, and united by the act for rebuilding the city, &c. but the plaintiffs, not having alledged the values of the refpective endowments of the three churches, in their declaration, at the time of the act, have not fhewn any title to prefent in any certain particular turn, firft, fecond, or third, therefore the declaration is ill.

To fhew that the plaintiffs have no title to present in the third turn; the defendant Backhoufe, in his plea, has alledged the respective values of the yearly endowments of the three churches, at the time of the act of parliament, and has averred, that thofe of Bow-church belonging to the archbishop, and Allhallows belonging to the plaintiffs, were refpectively of greater yearly value than thofe of Saint Pancras belonging to the archbifhop, which fhews the turns, at which the patrons were to prefent according to the ftatute, viz. the archbishop at the firft turn, the plaintiffs at the fecond turn, and the archbishop at the third turn: these values being averred by the plea, and not in any manner denied or traverfed by the plaintiffs in their replication, must be taken to be true in fact by the court; fo that, according to the act of parliament, the plaintiffs are not intitled to prefent 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 prefentation in the declaration or replication; if they had, the defendants might have traversed it, or the plaintiffs might have traverfed the value of the endowments alledged in the plea of the defeudant Backhoufe, either of which traverses would have been material, and would have made a perfect iffue between the parties, which would have put an end to the question, who is intitled to prefent at the third turn?

There are two material facts alledged in the plea, either of which, if plaintiffs had traverfed, 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 Tillotfon ufurped upon the plaintiffs; but instead of traverfing either of thofe facts, the plaintiffs have laid them out of the queftion, by taking them by way of proteftation, and have traverfed a matter of law collected from facts, which is ill; and the court and jury cannot alter or overturn the rota eftablished by the act of parliament.