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SHIREBURNE v. HITCH [1708]

I BROWN.

demand, or a remedy to compel, any discovery of his title. That it was expressly alledged in the declaration, that the title came per debitum legis convenientiam to the defendant's grandfather, which was enough for a stranger to do, and sufficient to draw the defendant to disprove it if false, being a matter in his own cognizance; but so entirely unknown to the plaintiff, that he could not amend his declaration: in that particular, if it was now to be drawn again; and it was hard that the plaintiff should have a right to the presentation, and yet not be able to come at it without his adversary's consent, which it could not be supposed he was willing to give. That the plaintiff had several authentic precedents, where the pleadings were the same with his; and the defendant had little reason to except to this way of pleading, as he had done the same thing more than once in his own plea; and as there could be no sufficient reason, why it should be required of the plaintiff to set out particularly the defendant's conveyances; so neither was it known, that any former judgment existed, to warrant the resolution given by the Court of Queen's Bench in this cause.

To this it was answered, (T. Parker) on the part of the defendant, that as to the first objection, the plaintiff had endeavoured to derive a title to himself of the second turn; but, as to a presentation, he only alledged one, and that not in any person who had the whole advowson before the partition, or the second turn after; but by one Mark Breary, who, it was said, presented William Breary, the [112] last incumbent, in the first turn. And, to shew Mark Breary's title to present in that turn, it was said, Robert Hitch had it by good conveyances, and granted the next presentation to Mark Breary; but this was certainly insufficient, because a presentation in right of Robert Hitch could not avail the plaintiff, or, if it could, yet he ought to show what those conveyances were, and from whom, which gave Robert Hitch that right. And if he had so done, it would have appeared, that that title was by grant from the defendant's own grandfather, and of the second turn. So that the question in this cause was purely matter of law upon the rules of pleading, and arose only upon the record, the substance whereof was annexed.^[1] If then the rules of law were to be

↑ The substance of the record annexed to the defendants printed case is as follows: "Easter term, secundo Annæ Reginæ. The plaintiff declares, that Sir Ralph Neville, and Catherine his wife, in her right, were seised of the manor of Guisley, and of this advowson, which (he says) was appendant to it: that they died seised, and the manor, advowson, and other estates, descended to their three daughters Catherine, wife of Walter Strickland, Joan, wife of Sir John Constable, and Clare, wife of Thomas Neville: that they being seised, a partition was made amongst them of all the lands descended to them from their mother; and the manner of Guisley was assigned to the Lady Constable for her part: that as to the advowson, it was further agreed by that partition, that the said Walter Strickland and Catherine, and her heirs, should present to the church in question every first turn; Sir John Constable and Joan his wife, and her heirs, every second turn; and Thomas Neville and Clare his wife, and her heirs, every third turn: that upon the death of Sir John Constable and his lady, their third part of the advowson being a right to present every second turn, descended to Sir John Constable, their son and heir, who enfeoffed Sir Richard Shireburne of the manor; and by deed 13th March, 9 Eliz. granted to him his said advowson in fee: that Sir Richard Shireburne, 28th of May 1593, by deed, enfeoffed T. Fleetwood and others of the said manor; and by the said deed, granted them his said advowson, to the use of himself for life; remainder to Hugh Shireburne his son, for life; remainder to Hugh's first and every other son successively, in tail male; remainder to Richard Shireburne, elder son of Sir Richard Shireburne, for life; remainder to Henry Shireburne, that Richard's eldest son in tail male; remainder to Richard Shireburne, the second son of Richard the son, in tail male; remainder to the third and every other son of Richard the son, successively in tail male; and that by virtue of this feoffment and grant, Sir Richard was seised for life, with remainders over as aforesaid. That 6th July 1594, Sir Richard died, and Hugh became seised; and 20th of May 1604, died without issue male; whereupon Richard, eldest son of Sir Richard, became seised; that Henry, his son, died 1st May 1615, without issue male; that 17th April 1628, Richard, son of Sir Richard, died; Richard, the younger son, became seised, and died 11th of

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[1BroPC112n1-1] The substance of the record annexed to the defendants printed case is as follows: "Easter term, secundo Annæ Reginæ. The plaintiff declares, that Sir Ralph Neville, and Catherine his wife, in her right, were seised of the manor of Guisley, and of this advowson, which (he says) was appendant to it: that they died seised, and the manor, advowson, and other estates, descended to their three daughters Catherine, wife of Walter Strickland, Joan, wife of Sir John Constable, and Clare, wife of Thomas Neville: that they being seised, a partition was made amongst them of all the lands descended to them from their mother; and the manner of Guisley was assigned to the Lady Constable for her part: that as to the advowson, it was further agreed by that partition, that the said Walter Strickland and Catherine, and her heirs, should present to the church in question every first turn; Sir John Constable and Joan his wife, and her heirs, every second turn; and Thomas Neville and Clare his wife, and her heirs, every third turn: that upon the death of Sir John Constable and his lady, their third part of the advowson being a right to present every second turn, descended to Sir John Constable, their son and heir, who enfeoffed Sir Richard Shireburne of the manor; and by deed 13th March, 9 Eliz. granted to him his said advowson in fee: that Sir Richard Shireburne, 28th of May 1593, by deed, enfeoffed T. Fleetwood and others of the said manor; and by the said deed, granted them his said advowson, to the use of himself for life; remainder to Hugh Shireburne his son, for life; remainder to Hugh's first and every other son successively, in tail male; remainder to Richard Shireburne, elder son of Sir Richard Shireburne, for life; remainder to Henry Shireburne, that Richard's eldest son in tail male; remainder to Richard Shireburne, the second son of Richard the son, in tail male; remainder to the third and every other son of Richard the son, successively in tail male; and that by virtue of this feoffment and grant, Sir Richard was seised for life, with remainders over as aforesaid. That 6th July 1594, Sir Richard died, and Hugh became seised; and 20th of May 1604, died without issue male; whereupon Richard, eldest son of Sir Richard, became seised; that Henry, his son, died 1st May 1615, without issue male; that 17th April 1628, Richard, son of Sir Richard, died; Richard, the younger son, became seised, and died 11th of

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