It was faid by Mr. Juftice Gould, upon the laft argument, that it feemed to him, as then advised, that the defendant Backhouse, in his plea, ought to have traverfed that Archbishop Tillotson, as in his fecond turn in right of his archbishoprick, collated the church on Samuel Bradford; but with great deference to the learned judge, I fubmit it to the court, that the defendant could not traverse the archbishop's collation in right of his archbishoprick, because there is no certain positive averment in the declaration, that Archbishop Tillotson was fefed of the fecond turn in right of his archbishoprick, and fo collated; he might have collated at the fecond turn by lapfe (for any thing appearing to the contrary) in right of his archbishoprick; the plaintiff ought to have averred, that by virtue of the act of parliament, Archbishop Tillotson was feiled of the fecond turn, and fo fented in his fecond turn; but not having fo done, the allegation is uncertain in what right he collated the church on Bradford, therefore we could not traverse it. See Vaugh. 57. 2 Stra. 1007. F. N.B. 33. H. I humbly infift, the declaration is ill; The prerogative presentations fhall go for turns, fo this is not the third turn. He prayed judgment for defendants. But fee Fitzgibb, 253. Dier 228. in the margin. Cro. Jac. 391. 4 Mod.

202.

pre

Serjeant Burland for the plaintiffs-It is objected by the de- 2d Argument fendants, that no title to the third turn is ftated by the decla- for plaintiffs. ration. 2dly, That plaintiffs in their replication have traversed matter of law. 3dly, That the prerogative prefentations go for turns, and so this is not the third turn.

the traverse

I fhall apply myfelf firft to the traverse. The principal point in Anfwer to the controverfy is, whether this is the plaintiffs' turn? they infift it is objection to the third turn, and that it belongs to them. It is not a conclufion of law that we have traverfed, but the averment in the plea, in point of fact, which we have traverfed, viz. "Without this that it belonged to the wardens and commonalty, to prefent to the 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." It is in the option of the plaintiff's to traverie any fact in the plea, which will put an end to the controverfy between the parties, and they are not bound to traverse the value of the livings, or the fuppofed ufurpation by Archbishop Tillotson; the value of the livings are only evidence of the turns; might not the company have waved their fecond beft turn, (if it was theirs) and by agreement with the archbishop have taken the third turn? This is the only cafe by the acts of parliament for re-building the city and churches, &c. after the fire of Londen, where three livings were united; and fo it does not ne afarily

23

b.

ceffarily follow, that when the patron of the best living prefents to the first turn, that the patron of the next beft, fhall present Co. Lit. 186, to the fecond turn. Suppose A. B. and C. are coparceners of a living, and they cannot agree to prefent; the eldest shall prefent, and if her fifters or either of them disturb her, the fhall have quare impedit; but fuppofe, after the eldest has prefented, the church becomes void, it does not neceffarily follow that B. because fhe is the fecond fifter, fhall prefent in the fecond turn; and a traverse that B. was the fecond fifter, would be nugatory, and not determine the turn; because the three fifters might have agreed to present in different manner than in the order of feniority. If we had traverfed the values of the livings alledged in the plea at the time of the act of parliament, the King's books, in the time of Henry 8. could not have determined that matter at this diftance of time. But acquiefcence, ever fince the act of parliament, has fettled the rota, and is evidence of the respec tive values at the time of making the act.

Answer to

that no title is ftated.

The defendant Backhoufe in his plea has admitted, that by the the objection, act of parliament, the archbishop, and the warden and commonalty became feifed of the advowfon of the church of Saint Mary le Bow, and the other two churches, and were intitled to pre fent thereto in fuch manner and form as in the declaration is mentioned; this, with great deference to the court, is an exprefs admiffion of the turns as we have ftated them in the declaration: we have flated, that the archbishop has the firft and fecond turns, and has prefented to the fame, fo it follows that the plaintiffs are intitled to this third turn; by this admiffion, the defendant Backhoufe has admitted the whole declaration to be true; and his denying any part thereof afterwards in his plea, is abfurd, contradictory to what he has before admitted, and goes for nothing.,

Answer to

as to prero

talions.

go

It is lafly objected, that the two prerogative prefentations the objection fhall for turns, and therefore this is not the third turn; gative prefen- and in fupport of this point, was cited Cro. Jac. 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. This cafe, I am bold to fay, is not law: a commendam retinere is not like a présentation, it is to prevent the living becoming void by the incumbent's promotion; it is a difpenfation, and comes before the creating him a bishop; it is a faculty of retention of the living in the fame state as he had it before by his former prefentation thereto. Vaugh. 24. Sir W. Jones 159. Show. Parl. Cafes 184. And fee 4 Mod. 212. Hob. 143. Dier 228, 233.

margin,

margin. A prerogative presentation does not ftand in the turn of the patron, because it is by act of law, which shall hurt no man. And therefore this is the plaintiffs' third turn.

Serjeant Forfer, in reply-I humbly infift, the traverse is of a matter of law, and that the values of the livings ought to appear on the record. It's objected there might be fome agreement to prefent in a different manner than the ftatute enacts; but if there was any fuch agreement, it ought to be ftated upon the record, out of which the court cannot go.

The court took time to confider until this term; when the Lord Chief Juftice, after having ftated the pleadings as above, delivered the opinion of the whole court for the plaintiffs.

Lord Chief Juftice De Grey. The archbishop has demurred to the count only; infifting that the plaintiffs have not therein fhewn any title, and therefore cannot have judgment. Three objections to the count have been taken by my brothers at the bar, who argued for the defendants.

1. That it is not alledged therein, that the plaintiffs were 1ft Objection. feifed of the advowfon to prefent as in their third turn.

2. That the rota or order of the turns of prefentation depend. 2d Objection. ing upon the yearly value of the endowments of the three churches refpectively, at the time of the making the ftatute of 22 Car. 2. thofe refpective values of the churches ought to have been stated; but the fame not being ftated, the plaintiffs have not fhewn any title to the third turn, which they claim.

3. That fuppofing the plaintiffs are intitled to the third turn, 3d Objection. yet the defendants fay, it appears by the count that this is not

the third turn; for the two prerogative prefentations fhall go for

turns, fo that this is the fecond turn in the fecond rota.

jection.

In anfwer to the firft objection, we are all of opinion, that it Anfwer to is well and fufficiently alledged in the count, that the plaintiffs the first obwere feifed of the advowfon, to prefent as in their third turn; for it is alledged, that (before the deftruction of the three churches by fire) they were feifed of the advowson of the church of Allhallows Honey-lane, and prefented Hutchinson thereto, who was admitted, &c. And it is further alledged, that (after the fire of London) by virtue of the act of parliament, the archbishop, in right of the archbishoprick, and the wardens and commonalty became feifed of the church of Saint Mary le Bow, with the churches of Saint Pancras Soper-lane and Allhallows Honey-lane, as of one in grofs by itfelf, as of fee and right, and

Anfwer to the fecond objeЄtion.

Answer to

jećtion.

were intitled to present to the church of Saint Mary le Bow in turns, according to the act of parliament: and the presentations, fo far as the turns have gone, have been made under the act; fo that in our opinion this objection has no weight.

As to the fecond objection, we are all of opinion, that although the yearly value of the endowments of the three churches refpectively, at the time of the making the act, are not stated in the count, yet, by what appears and is alledged therein, we must take it by necessary intendment, that the endowments of the archbishop's two churches of Saint Mary le Bow, and Saint Pancras Soper-lane, were each of greater yearly, value than those of the church of Allhallows Honey-lane; for it is exprefly alledged therein, that after the 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 firft turn, collated the church on Puller; that afterwards the church became vacant by the death of Puller, whereupon Archbishop Tillotson, as in his fecond turn, collated the church on Bradford; fo that we must neceffarily intend that these two archbishops collated according to their right under the act of parliament; and cannot prefume or adjudge, that either of them collated wrongfully, by ufurpation, or contrary to the ftatute; fo that we think the fecond objec tion has no weight.

As to the third objection, we are all of opinion, that the the third ob prerogative prefentations cannot be confidered as turns, or deprive a patron of his turn; for a prerogative presentation upon the promotion of an incumbent to a bishoprick, is by act of law, which cannot operate to the injury of a third perfon; for conftrudio & aclus legis nulli facit injuriam. 1 Inft. 148, 183. a. b. 2 Inft. 287. See Dier. 228. a note in the margin. In fact, this is the fifth vacancy fince the making the act, but with respect to the patrons, it is but the third opening or avoidance wherein the presentation of a patron (having the third turn) could take place; we think the presentation of the crown upon a promotion of an incumbent doth not supply a turn.

Fitzgibb.
Stran.

This right of the crown to prefent upon the promotion of an incumbent to a bifhoprick feems to be very ancient, although it has been often difputed, as appears by many books; but it has been fettled for many years, and is now indifputably held for good law, that the King, upon every promotion of an incumbent to a bishoprick in England or Ireland, whereby the church becomes void, fhall, by his royal prerogative, 'upon fuch vacancy, present to that church a fit person to serve the cure.

Nota,

Nota, (fays Brooke, title prefentation al efglife, pl. 61.) The bishop of Ely told me, that he had feen a prefentation, in the time of King Edward 3. made by the fame King; that he prefented to a benefice for that turn, which was of another's patronage by thefe words, "ratione prærogativæ fuæ," that the benefice being void by reason that the King had made the incumbent thereof a bifhop, who was confecrated; fo that when benefices became void by making an incumbent a bishop, the King fhall prefent to all his former benefices, pro illa vice, (i. e. for that turn, or in that change, courfe, ffead, place, office, part or duty), whofoever be the patrons thereof.

If a parfon be created a bishop, the King fhail prefent to the church of the patronage of a fubject, not only hac vice, but toties quoties. 3 Lev. 377. 3. Med. 202. For the prefentation by the crown is only changing one life for another, and probably the patron (notwithstanding the change) may be as near to his turn to prefent, as he was before the change. We are of opinion, that the count is well enough, and shews a good title in the plaintiffs to present as in their third turn.

We will now confider the incumbent's plea: he undertakes thereby to make out a better title to himfelf; he admits the first part of the count (before the deftruction of the churches) and all the prefentations, by the archbishops and the crown flated therein; he admits the act of parliament, but alledges that the yearly endowments of Bow church were of the greatest value; that thofe of Allhallows Honey-lane (the plaintiffs' church) were of the fecond value; and thofe of Saint Pancras Soper-lane of the least value; and that it belonged to the plaintiffs to prefent in their fecond turn according to the ftatute, but that Archbishop Tillotfon ufurped upon them by collating Bradford; but we fay the ftatute has not fet out the turns, it only fays, that the first prefentation is to be made by the patron of fuch of the faid churches, the endowments whereof were of the greatest yearly value, and is filent as to the fecond and third turns; to which two turns the plaintiffs and the archbishop are left to agree to prefent in what order or turn they fhould think fit; indeed, if the ftatute had fet out the rota or order of prefentation to all the three turns, then it would have been neceflary to have determined whether Archbishop Tillotson collated Bradford by ufurpation or not, but that not being chalked out by the act, we muft take it to be true, that the parties have agreed to prefent as alledged in the declaration, viz. the archbishop in the first and fecond turn, and the company of Grocers in the third turn. After the archbishops have had and enjoyed the right to prefent to the first and fecond turn for 100 years and upwards, is