That the faid at hath been carried into execution till 1760. of the faid act under several and diftinct prefentations; and that Petworth, North Chapel and Dungton, aforefaid, have from the making of the faid act, been three several and distinct parishes, and that the faid act has in all other refpects been compleatly carried into execution from the time of making thereof till the year of our Lord 1760. And the jurors aforefaid, upon their oath aforefaid, furever fince the ther fay, that fince the making the faid act, the said church of making it Kirby Overblowes hath feveral times become vacant, and that from the time of making the faid aft until the faid year of our Lord 1760, the Kings and Queens of England for the time being, in right of their crown of England, have from time to time prefented their clerks to the faid church of Kirby Overblowes, and that fuch clerks have been and were refpectively instituted and inducted and had poffeffion of the faid church, under fuch prefentations as aforefaid. And the jurors aforefaid, upon their oath. aforefaid, further fay, that in the fame year of our Lord 1760, the faid church of Kirby Overblowes became vacant by the death of the reverend Doctor Chapman late incumbent thereof, and thereupon the faid Charles Earl of Egremont claiming a right of presentation to the faid church, by virtue of the said indenture above-mentioned, as having his right to the faid prefentation faved by and under the faid provifo and faving claufe of the said act of parliament, prefented one John Metcalf his clerk to the said church, and the faid John Metcalf was upon fuch prefentation admitted, inftituted and inducted into the faid church, in the time of peace, in the reign of our fovereign Lord the now King, and is now the incumbent and parfon thereof. And the jurors aforefaid, upon their oath aforefaid, further fay, that on the 13th day of February in the year of our Lord 1771, the faid church of Worplefdon became vacant by the death of the faid John Burton clerk, doctor in divinity, and thereupon our faid Lord the now King prefented the faid Thomas Fountain clerk, the now defendant, to the faid church; and the jurors aforefaid, upon their oath aforefaid, further fay, that within fix months, from the time of the death of the faid John Burton clerk, the faid late incumbent of the faid church, the faid provoft and college prefented one Stephen Abthorp clerk, doctor in divinity, to the faid church; and the jurors aforefaid, upon their oath aforefaid, further fay, that the faid John Bishop of Winchester, before the commencement of this fuit, refufed to admit, inftitute and induft either the faid Thomas Fountain or the faid Stephen Abthorp into the faid church, and that the faid church, on the faid 13th day of February in the faid year of our Lord 1771, became vacant, and ever fince that time hath been, and ftill continues vacant, and that the faid church of Worplesdon is of the true value of three hundred and feventy pounds by the year; and the jurors aforefaid, upon their oath aforefaid, further fay, that fix months did not elapfe from vice of the court. the time of the death of the faid John Burton clerk, doctor in divinity, before the iffuing out of the original writ of quare impedit in this caufe by the faid provoft and college; but whether But' whether, upon the whole matter aforefaid, our faid Lord the King had a &c. the jurors right to prefent the faid Thomas Fountain to the faid church of pray the adWorplefdon or not, the faid jurors aforefaid are altogether ig norant, and pray the advice of the court here thereupon; and if it fhall feem to the court here, that our faid Lord the King had no right to prefent the faid Thomas Fountain to the faid church of Worplesdon, then the jurors aforefaid, upon their oath aforefaid, fay, that the faid Thomas Fountain unjustly hinders the faid provoft and college from prefenting a fit perfon to the faid church fo being vacant as aforefaid, and they affefs the damages of the faid provoft and college by reason of the disturbance aforefaid, befides their costs and charges by them about their suit in this behalf expended, to fix fhillings and eight pence, and for those cofts and charges to one fhilling; and if it fhall feem to the court here that our faid Lord the King had a right to present the faid Thomas Fountain to the faid church of Worplesdon; then the jurors aforefaid, upon their oath aforefaid, fay, that the faid Thomas Fountain does not unjustly hinder the faid provost and college from prefenting a fit perfon to the faid church of Worpledon, in manner and form as the faid provoft and college have above thereof complained against him. And because the Curia advi justices here have not yet advifed what judgment to give of and fare vult. upon the premises, day is given here to the parties aforefaid, to hear their judgment of and upon the premises, for that the faid juftices of our faid Lord the King are not yet advised thereof,,&c. until D. Kight & Line 28.752. The provost of Eton college and the fame college, [See ante468. verfus the Bishop of Winchester and Fountain 2 Black. Rep. clerk. C. B. 936.1 between true THE plaintiffs brought a quare impedit for hindering them An exchange to prefent to the church of Worplesdon in the county of can only be Surry, and declared that they were feifed in grofs, in fee, in parties; and right of the college, of the advowfon of that church; and be- if three muruing fo feifed, the church became void on the 8th of October ally grant reciprocal ef1765, by the death of one Stephen Sleech, whereupon the plain- tates to each tiffs in right of the college prefented John Burton, D. D. who other, viz. was admitted, inftituted and indufted; that on the 13th of A. to C. B. February 1771, the church became void by the death of Doctor to B. and A. J. Burton, and it belonged to the plaintiffs in right of the col- be evicted of lege to prefent a fit perfon to the church being fo void, and the the tenement granted to him defendants difturbed them, to their damage of 200!. by B., A. cannot recover of C. the tenements granted to him.] The 1 I 2 to A. and C. Quare impedit. The bishop pleads his common plea, that he claims no right A fhort ftate but as ordinary. of the plead ings. Traverse. The defendant Thomas Fountain pleads, that he is, and on the day of fuing out the original writ was, parfon imparfonee of the faid church upon the prefentation of his prefent Majefty King George the third, whofe title to the advowfon thereof he deduces from King Charles the fecond, by alleging that King Charles the fecond was feifed in fee, and prefented one Charles Moore, who was admitted inftituted and inducted; that Charles the fecond died feifed and the advowfon defcended to King James the fecond, who, being feifed in fee thereof, abdicated the government and crown of England; and thereupon King William and Queen Mary became lawfully feifed in fee thereof; that Queen Mary died, and thereupon King William was seised; that King William died feifed, and Queen Ann became lawfully feifed in fee; that he died, and King George the first became lawfully feifed in fee, and being fo feised the church became void by the death of Charles Moore, and one Henry Godolphin provoft of the college of Eton, by ufurpation upon the crown, prefented Thomas Carter, who was admitted, inftituted and inducted; that King George the firft died feised and the advow fon defcended to King George the fecond, who being feised thereof in fee, the church became void by the death of Thomas Carter, and one Henry Bland, provost of the college of Eton, by ufurpation upon the crown, prefented George Harris, who was admitted, inflituted and inducted; and King George the fecond being fo feifed, the church became void by the death of George Harris; and Benjamin Bishop of Winchester, by ufurpation upon the crown, collated Stephen Sleech, who was thereupon inducted; that King George the fecond died feifed, and the advowfon defcended to King George the third, who thereupon became and is feifed in fee thereof; and being fo feifed the church became void by the death of Stephen Sleech, whereby it belonged to his prefent Majefty to prefent, and the plaintiffs, ufurping upon the now King, prefented John Burton, who was admitted, inftituted and inducted; and his prefent Majefty being fo feifed the church became void by the death of John Burton, whereby it belonged to our Lord the now King to present a fit person to the church, who prefented the defendant Thomas Fountain, who was admitted, inftituted and inducted, and before and at the time of fuing out the original writ, was and yet is parfon imparfonee of the faid church upon that prefentation; without this that the plaintiffs were feifed of the faid advowfon of the church of Worplefdon in manner and form as they have above alleged; and this, &c. wherefore he prays judgment, &c. The The plaintiffs reply in the common form to the bifhop's plea, Replication. and take iffue upon the traverse in the incumbent's plea, and thereupon iffue is joined. ftated, fee the This caufe came on to be tried at the Lent afflizes held for the county of Surry after Hilary term, in the 13th year of his prefent Majefty, when the jury found a special verdict, which may be thus briefly ftated, (viz.) that on the 7th day of May The fpecial 1683, King Charles the fecond was feifed in fee of the advowfon verdict shortly of the church (of Worplefdon) in queftion, to which (being va- record at cant) he prefented one Charles Moor, who was admitted, inftituted length before. and inducted; that the Kings and Qeens of England were feifed of the faid advowfon in fee until the making of the act of parliament following; and that before the fame act, viz. on the 30th of January 1687, by indenture of that date made between Charles Duke of Somerfet and Elizabeth his Duchefs of the first part, Thomas Beach and Henry Champion of the fecond part; James Earl of Suffolk, Elizabeth Countefs Dowager of Effex, Sir John Erule Knt. Chancellor of the Exchequer, and Elizabeth Lady Seymour, his wife, and mother of the faid Lord Duke, and Sir Orlando Gee, of the third part. The rectory of Kirby Overblowes in Yorkshire, and the inheritance of the Honour of Petworth in Suffex were conveyed to the ufe of the Duchefs of Somerfet for life; remainder to the Duke of Somerfet for life; remainder to trustees to preserve contingent remainders; remainder to Algernon Earl of Hertford, the first fon of the Duke and Duchefs in tail-male; remainder to the fecond, third and every other fon and fons of the Duke and Duchefs in tail-male; remainder to the iffues females of the Lady Duchefs in tail gene. ral; and for default of fuch iffue, remainder to fuch ufes as the Lady Duchefs (whether fole or under coverture) fhould direct, limit and appoint; remainder in fee to the Duchefs. That the Duke and Duchefs died, leaving iffue Algernon Earl of Hertford, afterwards Duke of Somerset, their fon; and Catharine their daughter; and no other issue. That the faid Duke Algernon died, leaving Elizabeth now Duchefs of Northumberland his only child. That Catharine the daughter of Duke Charles and his faid Duchefs intermarried with Sir William Wyndham Baronet, and died, leaving Charles afterwards Earl of Egremont her eldest son, who died, leaving George, now Earl of Egremont. That the provoft and college of Eton, before, and at the time of making the act of parliament hereafter-mentioned, were 113 feifed The act of feifed in fee of the advowfon of the church of Petworth, and the chapelries of North Chapel and Dungton within the parish of Petworth in Suffex. That in the 4 & 5 years of William and Mary, an act of parparliament, liament was made for dividing the faid chapelries from the parish of Petworth, and erecting them into new parifhes, and for fettling the advowfons of Worplesdon, Kirby Overblowes, and Petworth, &c. according to the agreement in that behalf made between their Majefties, patrons of the churches of Clewer in Berks, Farnham-Royal in Bucks and Worplesdon in Surry, and the Duke of Somerfet, patron of the churches of Kirby Overblowes and Catton in Yorkshire and Long Horfley in Northumberland; and the provost of Eton college and the college, patrons of the church of Petworth in Suffex. Whereby it was enacted, That the advowfons of Kirby Overblowes, Catton and Long Horfley, fhall be and are thereby fettled and vefted in their Majefties and their fucceffors in right of their crown for ever; and that the advowfons of Chewer, FarnhamRoyal and Worplefdon, fhall be and are thereby fettled and vefted in the provost and college of Eton and their fucceffors for ever; and that the advowfons of Petworth, North Chapel and Dungton, fhall be and are thereby fettled and vefted in the Duke of SomerSaving in the fet, and the Lady Duchefs his wife, and their heirs; faving the act, the rights rights of all perfons (others than their Majefties, &c. the Duke of all perfons, and Duchefs and their heirs, and Etan college and their fucceffors) &c. (except) to the faid advowfons of the faid churches or any of them. That the act of parliament hath been carried into execution ever fince the making it until the year 1760; and that the church of Kirby Overblowes, hath feveral times been vacant fince the making the act, and from that time until the year 1760, the crown hath presented to that church, That in the year 1760 the church of Kirby Overblowes became vacant, and Charles Lord Egremont thereupon claiming a right of prefentation thereto, by virtue of the faid indenture, as having his right to the faid prefentation faved by and under the faid provifo in the faid act, prefented one John Metcalf thereto, who was admitted, inftituted and inducted to the faid church, That on the 13th of February 1771, the church of Worplesdon became vacant by the death of Doctor John Burton, and thereupon his present Majefty prefented the defendant Thomas Fountain to the faid church, That |