Towers against Newton, Esquire
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 1841 |
| Date | 01 February 1841 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 1153
IN THE COURT OF QUEEN'S BENCH.
1Q. B.319. TOWERS I'. NEWTON 1153 [319] towers against newton, esquire. February 1st, 1841. In an action, venue Yorkshire, a fi. fa. issued into Yorkshire; the sheriff returned levy of part, and nulla bona as to the residue. Afterwards a ca. sa. issued into Middlesex, reciting the Yorkshire fi. fa. and return thereto; and, after that, a ca. sa. into Yorkshire, also reciting the Yorkshire fi. fa. and the return thereto. Defendant was taken on the Yorkshire ca. sa., but discharged on habeas corpus on the ground of supposed privilege at the time of arrest. After the supposed privilege the plaintiff had a better right than the defendant to nominate." On the trial it appeared that defendant had nominated for nearly twenty years, and that vacancies occurred about once in five years; that the right of nomination was limited, by the grant, to the heirs male of E., with limitation over in default of such heirs; that the eldeat son of E. bad three sons; that plaintiff was lineally descended from the third ; but that in 1634 the two elder sons were living, and one had then living male issue. No further evidence was given. Held that, on the issue directed, plaintiff might recover upon this evidence without shewing that the two elder branches were extinct. This was a feigned issue directed by the Court to try whether the plaintiff " bad a better right than the defendant to nominate a fellow " on the Parke Foundation at the college of St. Peter's, in the University of Cambridge. The right was to bo determined by the limitations of a deed, dated March 1636, which directed that the Master and Fellows of St. Peter's should admit to every alternate fellowship such fit person as should be nominated (1) by Sir Miles Sandys, the Elder, or Sir Miles Sandys, the Younger, or the survivor; or the heirs male of the body of Sir M. S. the Elder; and, for want of such heirs male, (2) by Samuel Sandys of Ombersley Esq., and the heirs male of his body; and, for want of such heirs male, (3) by the heirs male of the late Edwin, Archbishop of York; and, for want of such heirs male, (4) by the heira male of the body of Miles Sandys, Esq., brother of the said archbishop. In Hilary term, 1837, cross rules nisi for writs of mandamus were obtained, and enlarged, as stated in the text, p. 314, ante, that an issue might be tried in the above terms. In the affidavits on which the plaintiff obtained his rule, he claimed under the third limitation, as heir male of Edwin, Archbishop of York, suggesting the failure of heirs male under the two prior limitations. In the affidavit of the defendant, he also claimed as heir male of the archbishop. [317] On the trial before Lord Denman C.J. at the London sittings after Michaelmas term, 1838, the plaintiff proved that Sir Samuel Sandys, the eldest son of Archbishop Sandys, had (amongst other children) three sons, Edwin, Martin, and John, born in the above order, and that plaintiff was the lineal heir male of John, the third. It appeared that in 1634 the two elder sons, Edwin and Martin, were living; and that Edwin had male issue then living; but no further evidence was offered of the state of their families since that period. It also appeared that the defendant, claiming under the limitations of the foundation deed, had been admitted to nominate to vacant fellowships from 1818 downwards; and that vacancies occurred about once in five years. The defendant offered no evidence on the trial, but claimed a verdict because the two elder branches of the archbishop's descendants had not been disposed of; and contended that the plaintiff's title should be strictly proved as against one whose...
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