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Case 3.—Edward Tong and others,—Appellants; Ralph Robinson and others,[1]—Respondents [23d March 1730].
[Mew's Dig, vi. 1433. Explained in Westfaling v. Westfaling, 1746, 3 Atk. 459. See also Bankruptcy Act 1883 (46 & 47 Vict. c. 52) s. 44 (ii.).]
John Tong, clerk, rector of Brancepeth in the county of Durham, being indebted to the respondents and several other persons, by judgments, bonds, and simple contract, in great sums of money, in July 1727 died intestate and without issue, seised in fee of a real estate of about 200l. per ann. and of the trust or equitable interest of the perpetual advowson of the rectory of Brancepeth, of the yearly value of 400l. and possessed of a small personal estate.
After the death of John Tong, administration was granted to William Dun, one of his creditors; and in Michaelmas term 1727, the respondents, on behalf of themselves and others the creditors of John Tong, exhibited their bill in the Court of Chancery, against the appellants and against Margaret Tong, the intestate's widow, William Dun the administrator, Robert Richardson, in whom the legal estate of the advowson was vested, and James Carr and Ann his wife, mortgagees
- ↑ Mr. Peere Williams, and the several other reporters of this case, have taken it up subsequent to the determination of the present appeal.
Henry Hitch, his son and heir; and by the same Robert's death, the church became void, which avoidance was an avoidance in the second turn, formerly belonging to Sir John Constable and Joan his wife; during which vacancy, the said William Breary, the now last incumbent, was presented by Mark Breary, named in the declaration, but not in the said first turn, but in the said second turn, formerly the said Sir John Constable's and his Lady's, and was thereupon instituted and inducted; that William Breary boing incumbent, the said Henry Hitch died; and the said third turn descended to the defendant as his son and heir, who became seised; and he being so seised, the said church became void by the death of the said William Breary and therefore it belongs to the defendant, and not to the plaintiff, to present to the said church, as in his third turn. And then, in order to bring it to a point for trial, he takes a traverse, and denies that this present vacancy of the church, by the death of William Breary, is a vacancy in the second turn, formerly belonging to the said Sir John Constable and Joan his wife, as the plaintiff by his declaration supposes.
"In the same term, the College plead; shewing one presentation in the Stricklands in the first turn, and make title by a late grant to the third part of the advowson, viz. to present every first turn. They say, that Atherton, by a grant of the next avoidance, made to him by Peregrine, Lord Willoughby, presented Robert Moore; but they fancy the Lord Willoughby entitled to the second turn, and that he granted the next avoidance in that turn; and then they say, that Mark Breary presented William Breary, in the third turn; and so it belongs to them now to present, as in their first turn: and they conclude with a traverse, denying that Mark Breary presented William Breary, as in the first turn, as the plaintiff by his declaration supposes.
"The plaintiff demurs to the plea of the defendant Hitch; and upon the plea of the College, he says, that Mark Breary presented William Breary as in the first turn; and prays that may be inquired of by a jury, and the College likewise.
"But instead of trying that, the plaintiff has agreed with the College, so they have quitted the plea, and confessed the action; and he, upon getting the judgment against the defendant in the Court of Common Pleas, and obtaining a writ to the Bishop, has presented their Clerk."
By an MS. note on this case in Lord Raymond's collection, from whence it is here reported, it appears that this cause occasioned the passing of the act 7 Ann. c. 18. intitled. An act to preserve the rights of patrons to advowsons.
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