case sir nicholas SHIREBURNE BaronetPlaintiff robert hitch Esq  Defendant in  error d February Mews dig v distinguish in gully v bishop of Exeter b c at p  the plaintiff in a quare hinder claim the second turn to a live but in his  declaration do not lie any presentation make by he or any of his predecessor  in the second turn he also acknowledge a title in the defendant to the first  turn but do not set out the conveyance particular by which it be derive down  to he this declaration be hold to be insufficient to maintain the plaintiff  action sir Ralph Neville and Catherine his wife die seize of the manor of  Guisley in the county of York to which the advowson of the church of Guisley  be appendant in fee whereby the same descend to their three daughter and  coheiress namely Katherine the wife of Walter Strickland esquire Joanna the  wife of sir John constable and Clara the wife of Thomas Neville esquire and a  partition be afterward make between these party it be on that occasion agree  that they shall present to the church accord to their seniority so that each  sister be seize of a three part of the advowson to present in their respective  turn the master fellow and scholar of Trinity college in Cambridge claim the  first turn to this live the plaintiff claim the second and the defendant the  three turn but upon the death of doctor William breare a dispute arise between  the plaintiff and defendant whether that vacancy be a vacancy in the second or  three turn and in a quare hinder bring by the plaintiff against the defendant  and also the college proper plead be plead in order to try the fact by a jury  but the defendant have by his plea traverse that the present vacancy be a  vacancy in the second turn the plaintiff demurrer to the plea as not good in  law insist that the defendant ought to have traverse or deny that the last  vacancy be a vacancy in the first turn as the plaintiff by his declaration  have allege instead of deny that the present vacancy be a vacancy in the  second turn and upon argue this demurrer the court of common plea give  judgement for the plaintiff in consequence whereof and of a compromise with  the college he obtain a writ to the archbishop and his clerk be institute and  induct accord hereupon the defendant bring a writ of error in the court of  queen bench and upon argument that court be of opinion that what the plaintiff  insist on be at most but a slip of the person who draw the plea and a mere  nicety in form but brown that there be a material defect in the plaintiff  declaration and for that defect which be a point not mention in the court of  common plea they reverse the former judgement and give judgement for the  present defendant the objection take to the declaration be saint that the  plaintiff have not lie any presentation make by he or any of his predecessor  in the second turn and dly that he have take upon he to acknowledge a title to  the first turn in the defendant Hitch but have not set out the conveyance  particular by which it be derive down to he to obviate these objection and of  consequence obtain a reversal of this latter judgement the plaintiff bring his  writ of error in parliament and on his behalf it be argue I Montague p king  that though a quare hinder be a possessory action and general a possession by  presentation ought to be lie in some person under who the plaintiff claim yet  this case be a exception to that rule for the right appear to be in three  copartner or in those claim under they if a presentation be allege in any one  of the copartner or any that claim under they it be sufficient as appear by  several authority in law and therefore this objection be but little insist on  in either of the court below and as to the plaintiff not set out particular in  as many word the conveyance which make the defendant Hitchs title to the first  turn it be impossible for he to do it for the deed do not belong to he nor be  he a party or privy to they and as Hitch be a purchaser under these deed the  plaintiff have neither a right to brown er p demand or a remedy to compel any  discovery of his title that it be express allege in the declaration that the  title come per debt is owed law agreement to the defendant grandfather which  be enough for a stranger to do and sufficient to draw the defendant to  disprove it if false be a matter in his own cognizance but so entire unknown  to the plaintiff that he can not amend his declaration in that particular if  it be now to be draw again and it be hard that the plaintiff shall have a  right to the presentation and yet not be able to come at it without his  adversary consent which it can not be suppose he be Willing to give that the  plaintiff have several authentic precedent where the plead be the same with  his and the defendant have little reason to except to this way of plead as he  have do the same thing more than once in his own plea and as there can be no  sufficient reason why it shall be require of the plaintiff to set out  particular the defendant conveyance so neither be it know that any former  judgement exist to warrant the resolution give by the court of queen bench in  this cause to this it be answer t Parker on the part of the defendant that as  to the first objection the plaintiff have endeavour to derive a title to  himself of the second turn but as to a presentation he only allege one and  that not in any person who have the whole advowson before the partition or the  second turn after but by one mark breare who it be say present William breare  the brown last incumbent in the first turn and to show mark Brearys title to  present in that turn it be say Robert Hitch have it by good conveyance and  grant the next presentation to mark breare but this be certain insufficient  because a presentation in right of Robert Hitch can not avail the plaintiff or  if it can yet he ought to show what those conveyance be and from who which  give Robert Hitch that right and if he have so do it will have appear that  that title be by grant from the defendant own grandfather and of the second  turn so that the question in this cause be pure matter of law upon the rule of  plead and arise only upon the record the substance whereof be annexed The  substance of the record annex to the defendant print case be as follow easter  term good luck Ann Regince the plaintiff declare that sir Ralph Neville and  Catherine his wife in her right be seize of the manor of Guisley and of this  advowson which he say be appendant to it that they die seize and the manor  advowson and other estate descend to their three daughter Catherine wife of  Walter Strickland Joan wife of sir John constable and Clare wife of Thomas  Neville that they be seize a partition be make among they of all the land  descend to they from their mother and the manner of Guisley be assign to the  lady constable for her part that as to the advowson it be further agree by  that partition that the say Walter Strickland and Catherine and her heir shall  present to the church in question every first turn sir John constable and Joan  his wife and her heir every second turn and Thomas Neville and Clare his wife  and her heir every three turn that upon the death of sir John constable and  his lady their three part of the advowson be a right to present every second  turn descend to sir John constable their son and heir who feoff sir Richard  Shireburne of the manor and by deed that march Elizabeth grant to he his say  advowson in fee that sir Richard Shireburne that of may by deed feoff t  Fleetwood and other of the say manor and by the say deed grant they his say  advowson to the use of himself for life remainder to Hugh Shireburne his son  for life remainder to Hugh first and every other son successive in tail male  remainder to Richard Shireburne elder son of sir Richard Shireburne for life  remainder to Henry Shireburne that Richard old son in tail male remainder to  Richard Shireburne the second son of Richard the son in tail male remainder to  the three and every other son of Richard the son successive in tail male and  that by virtue of this feoff and grant sir Richard be seize for life with  remainder over as aforesaid that that July sir Richard die and Hugh become  seize and that of may die without issue male whereupon Richard old son of sir  Richard become seize that Henry his son die saint may without issue male that  that April Richard son of sir Richard die Richard the young son become seize  and die that of February whereby the manor and right of present every second  turn descend to Richard Shireburne his son and heir in tail that this Richard  the great grandson of sir Richard be thus seize the estate of the say Walter  Strickland and Catherine his wife in the advowson to present every first turn  by due conveyance of law in that behalf make be duly convey to Robert Hitch  decease grandfather of the defendant and his heir and the say Robert Hitch the  grandfather the church be full grant the first presentation to mark dreary  that before that of march the church become vacant by death which be the first  and next avoidance after Brearys grant and the say that of march mark breare  present William breare as in the first turn of the say Robert Hitch and he be  admit and institute into the say church that afterward videlicet August the  say Richard Shireburne the great grandson father of the plaintiff sir Nicholas  die seize whereby the manor and advowson that be to present every second turn  descend to another Richard as his son and heir in tail who April die without  issue male whereby the say manor and advowson that be to present every second  turn descend to the plaintiff as his brother and heir that the plaintiff be  seize the church become void by the death of William breare and so it belong  to the plaintiff to present to the say church be so vacant as in his turn  aforesaid that be the second turn and the defendant hinder he to his damage of  in Michaelmas term the defendant put in this plea he begin with a protestation  that he himself be seize of the right of present to the church every second  turn by diverse conveyance make thereof by the plaintiff ancestor but for his  defence at present insist on what follow that it be true that the three sister  in the declaration mention be seize of the advowson in manner before mention  that be 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 three turn that upon the death of Thomas Neville and  Clare the three part of the advowson videlicet to present every three turn  descend to mary Neville daughter and heir of the say Clare who thereby become  seize and war marry to Francis Hervey that Hilary term Elizabeth the say  Francis Hervey and mary his wife levy a fine of the say three turn to William  smith and his heir to the use of he and his heir that in easter term follow  smith by fine convey the same to Peregrine Lord Willoughby and his heir that  while the church be full of a incumbent present in the second turn which  before belong to sir John constable and Joan his wife the say Lord Willoughby  by deed grant to one John Atherton the next presentation in his turn that the  church afterward become void Atherton in the Lord willoughby three turn  present Robert more who be institute and induct in the time of queen Elizabeth  that the that of April Elizabeth the Lord Willoughby by his deed grant his say  three part of the advowson videlicet to present in the three turn to the say  Robert more and his heir whereby more be seize in fee and march grant the same  to Robert Hitch grandfather of the defendant and his heir whereby Robert Hitch  be seize in fee that while the church be full of more the estate of Walter  Strickland and Catherine his wife in the first turn be duly convey to sir  Edward Osborne bart and his heir and afterward the church become vacant by the  death of Robert more present in the three turn as aforesaid whereupon the say  sir Edward Osborne present the say Robert Hitch the defendant grandfather as  in the first turn who be institute and induct in the time of king Charles I  that the say Robert Hitch afterward die whereby his say three part videlicet  to present every three turn descend to Henry Hitch his son and heir and by the  same Robert death the church become void which avoidance be a avoidance in the  second turn former belong to sir John constable and Joan his wife during which  vacancy the say William breare the now last incumbent be present by mark  breare name in the declaration but not in the say first turn but in the say  second turn former the say sir John constable and his lady be and be thereupon  institute and induct that William breare be incumbent the say Henry Hitch die  and the say three turn descend to the defendant as his son and heir who become  seize and he be so seize the say church become void by the death of the say  William breare and therefore it belong to the defendant and not to the  plaintiff at present to the say church as in his three turn and then in order  to bring it to a point for trial he take a traverse and deny that this present  vacancy of the church by the death of William breare be a vacancy in the  second turn former belong to the say sir John constable and Joan his wife as  the plaintiff by his declaration suppose in the same term the college plead  show one presentation in the strickland in the first turn and make title by a  late grant to the three part of the advowson videlicet to present every first  turn they say that Atherton by a grant of the next avoidance make to he by  Peregrine Lord Willoughby present Robert more but they fancy the Lord  Willoughby entitle to the second turn and that he grant the next avoidance in  that turn and then they say that mark breare present William breare in the  three turn and so it belong to they now to present as in their first turn and  they conclude with a traverse deny that mark breare present William breare as  in the first turn as the plaintiff by his declaration suppose the plaintiff  demurrer to the plea of the defendant Hitch and upon the plea of the college  he say that mark breare present William breare as in the first turn and pray  that may be inquire of by a jury and the college likewise but instead of try  that the plaintiff have agree with the college so they have quit the plea and  confess the action and he upon get the judgement against the defendant in the  court of common plea and obtain a writ to the bishop have present their clerk  by a ms note on this case in Lord Raymond collection from whence it be here  report it appear that this cause occasion the pass of the act Ann c entitle a  act to preserve the right of patron to advowson if then the rule of law be to  be brown er p brown observe the declaration be manifest insufficient to  maintain the plaintiff action but if this nicety be to be waive then brown the  defendant plea be a full answer to it and therefore wherever way judgement  ought to be with the defendant and accord after hear counsel on this writ of  error it be order and adjudge that the judgement give in the court of queen  bench shall be affirm and that the record shall be remit to the end execution  may he have thereupon jour vol p brown er p