Page:The English Reports v1 1900.pdf/466

Sir Ralph Neville, and Catherine his wife, died seised of the manor of Guisley, in the county of York, to which the advowson of the church of Guisley was appendant in fee, whereby the same descended to their three daughters and co-heiresses; namely, Katherine, the wife of Walter Strickland, esq. Joanna, the wife of Sir John Constable, and Clara, the wife of Thomas Neville, esq. And a partition being afterwards made between these parties, it was on that occasion agreed, that they should present to the church according to their seniority; so that each sister was seised of a third part of the advowson, to present in their respective turns.

The Master, Fellows, and Scholars of Trinity College, in Cambridge, claimed the first turn to this living; the plaintiff claimed the second, and the defendant the third turn; but upon the death of Doctor William Breary, a dispute arose between the plaintiff and defendant, whether that vacancy was a vacancy in the second or third turn. And, in a quare impedit brought by the plaintiff against the defendant, and also the College, proper pleas were pleaded, in order to try the fact by a jury; but the defendant having by his plea traversed, that the present vacancy was a vacancy in the second turn, the plaintiff demurred to the plea, as not good in law; insisting, that the defendant ought to have traversed or denied that the last vacancy was a vacancy in the first turn (as the plaintiff by his declaration had alledged), instead of denying that the present vacancy was a vacancy in the second turn; and upon arguing this demurrer, the Court of Common Pleas gave judgment for the plaintiff; in consequence whereof, and of a compromise with the College, he obtained a writ to the Archbishop, and his clerk was instituted and inducted accordingly.

Hereupon, the defendant brought a writ of error in the Court of Queen's Bench; and upon argument, that court were of opinion, that what the plaintiff insisted on was, at most, but a slip of the person who drew the plea, and a mere nicety in form; but [111] that there was a material defect in the plaintiff's declaration; and, for that defect (which was a point not mentioned in the Court of Common Pleas), they reversed the former judgment, and gave judgment for the present defendant.

The objections taken to the declaration were, 1st, That the plaintiff had not laid any presentation made by him, or any of his predecessors, in the second turn; and, 2dly, that he had taken upon him to acknowledge a title to the first turn, in the defendant Hitch, but had not set out the conveyances particularly, by which it was derived down to him.

To obviate these objections, and, of consequence, obtain a reversal of this latter judgment, the plaintiff brought his writ of error in parliament; and on his behalf it was argued (J. Montague, P. King), that though a quare impedit be a possessory action, and generally a possession by presentation ought to be laid in some person under whom the plaintiff claims, yet this case was an exception to that rule; for the right appearing to be in three co-partners, or in those claiming under them, if a presentation was alledged in any one of the co-partners, or any that claimed under them, it was sufficient, as appeared by several authorities in law; and therefore, this objection was but little insisted on in either of the courts below. And, as to the plaintiff's not setting out particularly, in totidem verbis, the conveyances which made the defendant Hitch's title to the first turn, it was impossible for him to do it; for the deeds did not belong to him, nor was he a party or privy to them; and as Hitch was a purchaser under these deeds, the plaintiff had neither a right to