Barker and Cook against the Bishop of London, Lomax, and Bellamy
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1790 |
| Date | 01 January 1790 |
| Court | Court of Common Pleas |
English Reports Citation: 126 E.R. 240
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER
The following case was cited in the argument from the MSS. of Mr. Justice Burnet. babker and cook againsl the Brsnop of london, lomax, and bellamy, 1790. Mic. 26 Geo. 2. C. B. In a quare impedit brought against A. and B. tenants in common of an advowson, being aMignees of coparceners, who do not agree to present, A. suffers judgment by default, and B. dies pending the writ. This judgment is a bar to another quare impedit brought by A. and C. the representative of B. (in which A. is summoned and severed,) to recover the same presentation, but is not a bar to C.'s right to recover on the next avoidance in his turn (a). Tbii was an action of quare impedit brought by Edward Barker and James Cook, (in whieh James Cook was summoned and severed) against the Bishop of London, Caleb:Loma*, and Daniel Bellamy his clerk. Tbe declaration stated, that John Ellis was seised in fee of the advowson in gross ol the vicarage of St. Stephen's, near St. [413] Alban's, and presented one Thomas Perkins bis clerk, who was thereupon admitted, instituted, and inducted ; that John Ellis by his will of the 30th of June 1680, devised the advowson to Eebecca his wife for life, remainder to his second son Thomas in tail male, remainder to his third son John in tail male, remainder to bis fourth son James in tail male, remainder to the heirs of hia second son Thomas for ever. John Ellis died. Eebecca died in 1682. Thomas Ellis in Michaelmas term, 2 James 2, by bargain and sale enrolled, conveyed this advowson by the name of all that capital messuage or late dissolved hospital of St. Julian, with the appurtenances, and the advowson of the parish church of St. Stephen's, to John Dod and John Reeve in fee; against whom a common recovery was had in that term, in which Thomas Ellis came in as vouchee, which was to the use of Thomas Ellis in fee. lu Hilary term, 2 William & Mary, a fine was levied by Thomas Ellis, and Mary bis wife, to Henry Killigrew, to the use of Henry Killigrew in fee. Thomas Perkins died the 1st of May 1693, and by his death the said church became vacant; which church remaining vacant for 18 months, King William the Third by laps presented John Fothergill in 1695, who was admitted, instituted and inducted. Henry; Killigrew by his will, 8th December, 1704, devised this advowson to his!wife lucy for life, and died iti December 1712, whereby his widow Lucy Killigrew was aeited for life of the advowson, with a remainder in fee to his three daughters, Luicy, Mary and Judith, as coparceners. Lucy Killigrew, the mother, by indenture of the 28th of August 1716, on an intended marriage of her daughter Lucy with James Cook (one of the plaintiffs in this writ), and the said Lucy the daughter, conveyed one-third part of the advowson to trustees, to the use of Lucy, the mother for her life, remainder to the use of James Cook for bis life, remainder to the use of Lucy the daughter for life, remainder to trustee* lor their lives, to preserve contingent remainders, remainder to their first, and (a) [This case is reported in Willes's Eep. 659, and the point of it is thus stated by Mr..Durnford, in the margin : "If A. and B. coparceners in an advowson, do not agree to present on a vacancy, A. the eldest (or her assigns) may present to the first turn, and B...
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