Page:The English Reports v1 1900.pdf/468
[113] observed, the declaration was manifestly insufficient to maintain the plaintiff's action; but if this nicety was to be waived, then [114] the defendant's plea was a full answer to it; and therefore quacunque via, judgment ought to be with the defendant.
And accordingly, after hearing counsel on this writ of error, it was ordered and adjudged, that the judgment given in the Court of Queen's Bench, should be affirmed; and that the record should be remitted, to the end execution might be had thereupon. (Jour, vol. 18. p. 643.)
February 1667; whereby the manor and right of presenting every second turn descended to Richard Shireburne, his son and, heir in tail; that this Richard, the great-grandson of Sir Richard, being thus seised, the estate of the said Walter Strickland and Catherine his wife in the advowson, to present every first turn, by due conveyance of law, in that behalf made, was duly conveyed to Robert Hitch deceased, grandfather of the defendant, and his heirs; and the said Robert Hitch the grandfather, the church being full, granted the first presentation to Mark Breary. That before 28th of March 1677, the church became vacant by death, which was the first and next avoidance after Breary's grant; and the said 28th of March 1677, Mark Breary presented William Breary, as in the first turn of the said Robert Hitch, and he was admitted and instituted into the said church. That afterwards, viz. August 1680, the said Richard Shireburne, the great-grandson, father of the plaintiff Sir Nicholas, died seised; whereby the manor and advowson, that is to present every second turn, descended to another Richard, as his son and heir in tail, who, April 6, 1698, died without issue male; whereby the said manor and advowson, that is to present every second turn, descended to the plaintiff, as his brother and heir. That the plaintiff being seised, the church became void by the death of William Breary; and so it belongs to the plaintiff to present to the said church, being so vacant, as in his turn aforesaid, that is, the second turn; and the defendant hinders him, to his damage of 100l.
"In Michaelmas term 1704, the defendant puts in this plea. He begins with a protestation, that he himself is seised of the right of presenting to the church every second turn, by divers conveyances made thereof by the plaintiff's ancestors. But, for his defence at present, insists on what follows:
"That it is true, that the three sisters in the declaration mentioned were seised of the advowson, in manner before mentioned; that is to say, Walter Strickland, and Catherine his wife, to present every first turn; Sir John Constable, and Joan his wife, every second turn, and Thomas Neville, and Clare his wife, every third turn; that upon the death of Thomas Neville and Clare, the third part of the advowson, viz. to present every third turn, descended to Mary Neville, daughter and heir of the said Clare, who thereby became seised, and was married to Francis Hervey. That Hilary tera, 23 Eliz. the said Francis Hervey, and Mary his wife, levied a fine of the said third turn, to William Smith and his heirs, to the use of him and his heirs; that in Easter term following, Smith, by fine, conveyed the same to Peregrine, Lord Willoughby, and his heirs; that whilst the church was full, of an incumbent presented in the second turn, which before belonged to Sir John Constable and Joan his wife, the said Lord Willoughby, by deed granted to one John Atherton, the next presentation in his turn; that the church afterwards becoming void, Atherton, in the Lord Willoughby's third turn, presented Robert Moore, who was instituted and inducted in the time of Queen Elizabeth; that the 19th of April, 27 Eliz, the Lord Willoughby, by his deed, granted his said third part of the advowson, viz. to present in the third turn, to the said Robert Moore, and his heirs, whereby Moore was seised in fee; and March 8, 1636, granted the same to Robert Hitch, grandfather of the defendant, and his heirs, whereby Robert Hitch was seised in fee. That while the church was full of Moore, the estate of Walter Strickland, and Catherine his wife, in the first turn, was duly conveyed to Sir Edward Osborne, bart. and his heirs; and afterwards the church became vacant by the death of Robert Moore, presented in the third turn, as aforesaid; whereupon the said Sir Edward Osborne presented the said Robert Hitch. the defendant's grandfather, as in the first turn, who was instituted and inducted in the time of King Charles I. That the said Robert Hitch afterwards died, whereby bis said third part, viz. to present every third turn, descended to
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