Page:The English Reports v1 1900.pdf/1483

Mary presented one Peter Drelincourt, who, at the presentation of the said king and queen, was admitted, instituted, and inducted; that Drelincourt died, and thereupon the defendant Whaley was collated to this church by Thomas Lindsay, then archbishop of Armagh, on the 5th of May 1722, etc. Now if this plea was true in fact, it must be admitted, that the king's turn would be served by the presentation of Drelincourt; but the fact was denied by the attorney general in his replication, and it was agreed to be false by the demurrer of the incumbent Whaley if the replication was good and if the fact had been true, the incumbent might have taken issue upon the replication, and proved it.

But the following objections were made to the replication: I. That the attorney general ought to have joined issue on the traverse, at the end of the incumbent's plea, whereby he traversed or denied, that the church was still void by the promotion of Dr. Vigors; and to fortify this objection, it was urged that this was a fact alledged in the declaration, and therefore the defendant might properly tender an issue upon it. II. That the incumbent had not only pleaded a presentation of Drelincourt by King William and Queen Mary, but also that Drelincourt, at their presentation, was admitted, instituted, and inducted; and that the attorney general, by his replication, had only denied the presentation of Drelincourt, but hail given no answer to the institution and induction. And it was urged, that institution and induction, without a presentation, will amount to a collation, and fill the church against the king.

To the first of these objections it was answered, that in the declaration the king's title was first set out, and then it concludes, "And so it belongs to the king to present to the church so vacant by the promotion of Dr. Vigors, and continuing hitherto va-[513]-cant;" which being only alledged by way of inference and conclusion from what was before stated in the declaration, was not traversable; but that the king's title before set out ought to be answered. That as this traverse stood upon the facts stated in the incumbent's plea, it contained nothing but matter of law arising upon those facts; for if King William and Queen Mary presented Drelincourt, who, upon that presentation was admitted, instituted, and inducted, and afterwards died, then it was a consequence in law, that the church was not still void by the promotion of Dr. Vigors. That this traverse was not at all material, nor should have been taken by the defendant, but his plea would have been good without it; he had before confessed the king's title, and avoided it by the presentation of Drelincourt, which was a complete answer to the king's title; and it is against a known rule of law in pleading, to confess and avoid, and also to traverse. If therefore the traverse was immaterial, and not proper to join issue upon, the attorney general had done right in passing it by, and offering an issue by his replication upon the material part of the plea, which was the presentation of Drelincourt by King William and Queen Mary. To the other objection it was said, that there are two ways of filling a church; viz. by presentation, or lawful collation. If this church had been filled by the collation of the archbishop, the incumbent should have pleaded that the archbishop did collate; but here he put his case upon the church being filled by the presentation of the crown, and admission and institution upon that presentation. That the institution and induction were set out in the incumbent's plea, only as executions of the presentation; and the presentation being denied by the attorney general, and it being admitted by the incumbent's demurrer that there was no such presentation, of consequence there could be no institution and induction upon that presentation. Besides, if there were no presentation of Drelincourt, his being instituted and inducted would be of no avail to the incumbent, to avoid the king's title; for institution and induction, without a presentation, are merely void against a lawful patron; and to this purpose, Green's case, 6 Co. 29, and Hunston and Cockett's case, 2 Croke 252, are authorities in point. The replication, therefore, was conceived to be good, though it took no notice of the institution and induction of Drelincourt, set out in the incumbent's plea. But another objection arising upon the face of the pleadings, was made to the king's title, viz. that it appeared that Dr. Vigors, upon whose promotion the church became void, died on the 3d of January 1721, and that by his death the king's title to present determined. To this it was said, that the king's right is to present to that turn, and there is no authority whatsoever to show that this right determines, when the promotes dies; but on the contrary, the constant form of pleading shews, that the law is otherwise; for to entitle the king to a presentation upon an avoidance by cession, it is never set out in pleading,