Adams v Andrews
| Jurisdiction | England & Wales |
| Judgment Date | 07 November 1850 |
| Date | 07 November 1850 |
| Court | Court of the Queen's Bench |
English Reports Citation: 117 E.R. 466
QUEEN'S BENCH.
S. C. 20 L. J. Q. B. 33; 15 Jur. 149.
adams against andrews. 1850. Case for disturbing the possession of a pew on 1st Jinuary and on divers days and times, &c. Pleas : 3. Leave and licence. 4. An agreement by plaintiff with defendant and A., then being churchwardens, that defendant and A. should make a partition and divide the pew into two unequal pews, and that the churchwardens for the time being should have licence to place parishioners in the lesser of them ; that the defendant and A. did, at their expense, so divide the pew, and did place parishioners in the pew, which are the grievances, &c. Replication to so much of 3d plea as relates to grievances prior to 8th February, de injuria, concluding to the country: and to so much of 3d plea as relates to grievances after 8th February, a revocation of the licence. Verification. To so much of the 4th plea as relates to grievances before 8th February, a traverse of the agreement, concluding to the country : and, to so much as relates to grievances after 8th February, a revocation of the licence. Verification : and a new assignment. Held, on special demurrer, 1. That the 3d plea was divisible, and that plaintiff was entitled to make separate replications to each part of it ; and that, though the revocation of a licence may be given in evidence under a general replication, the plaintiff is at liberty to plead the revocation specially. 2. That the 4th plea was a plea of a single licence, and was not divisible in its nature ; and that the replications to the 4th plea were bad on special demurrer as being double and as informal traverses of the qusa est eadem, 3. That, the agreement in the 4th plea not being by deed, the licence thereby granted was revocable, though acted upon at the expense of the defendant. Judgment for plaintiff on both replications to 3d plea, and for defendant on both replications to 4th plea. [S. C. 20 L. J. Q. B. 33 ; 15 Jur. 149.] Case. The count stated that the plaintiff occupied a messuage in the parish of East Moulsey, and dwelt there, and by reason thereof had a right for himself and his family to the use of a pew in the parish church of East Moulaey during divine service ; and that [285] defendant, on 1st January 1849, and on divers days and times between that day and the commencement of the suit, entered, and caused other persons to enter, the pew during divine service, and disturbed plaintiff in the enjoyment of his right. There were several pleas leading to issues of fact, and also the pleas following. 3d plea. Leave and licence generally. 4th plea. That the plaintiff's pew was larger than was reasonably required for the use of himself and his family, and the rest of the church too small to contain the rest of the parishioners. That the defendant and one John Arnison were, before the times when, &c., churchwardens of the parish : that they and the plaintiff agreed that, for the purpose of remedying these inconveniences, the churchwardens should erect a partition across the plaintiff's pew so as to divide it into two pews, in a manner in the plea described : and that, in consideration of their doing so, the plaintiff agreed that the defendant and John Arnison whilst they continued churchwardens, and every churchwarden for the time being, should, during the continuance of the plaintiff's possession, have licence to place parishioners in the smaller pew thus to be formed ; and the plaintiff thereby gave them such licence. Averments, that defendant and John Arnison, in pursuance of the agreement, and whilst it remained unreseinded, made the partition at their expense : that defendant, at the several times when, &c., still continued churchwarden, and plaintiff still continued possessed ; and that defendant, "in pursuance of the said agreement, and the licence thereby granted, which was then still in full force, entered, and caused and procured the said other [286] (a) Reported by C. Blackburn, Esq. 15 Q. B. 2*7. ADAMS V. ANDREWS 467 persons, who then were parishioners of and resident in the said parish, to enter," &c.; which are the grievances, &c. Replication, To so much of the third plea as relates to grievances prior to 8th February 1849, de injuria, abaque licentia. Conclusion to the country. And to the third plea, so far as relates to the residue of the grievances, a revocation of the licence by plaintiff, and notice thereof to defendant before the committing of these grievances. Verification. To the fourth plea, so far as relates to grievances prior to 8th February 1849, that it was not agreed modo et forma. Conclusion to the country. To the same plea, so far as relates to the residue of the grievances, revocation of the licence, and notice thereof to defendant before the committing of these grievances. Verification. New assignment of disturbances at other times and in other parts of the pew than those in the fourth plea mentioned. Demurrer to the replications and the now assignment, assigning many causes of demurrer: those which were considered by the Court to be material sufficiently appear in the judgment. The demurrer was argued in Hilary vacation last (a). Willes, for the defendant. The replications are bad in form. That to the fourth plea is an attempt to split an indivisible plea of a particular licence into two parts. The first branch of the replication to that plea is a denial of the agreement. If that means that the agreement never existed at all, it is clearly a complete answer to the whole plea; and the second branch of the replica-[287]-tion makes the whole replication bad for duplicity. But, if the replication is to be taken as confessing that there was an agreement, and averring that there were grievances prior to the making of the agreement, then the first branch of the replication to the fourth plea discloses matter for a new assignment; it in effect says, " There were grievances covered by...
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