possession of the vessel by Lewis. And there could be no object or purpose in considering the vessel as taken out of the possession of the owners, and put into the possession of Lewis. All that the Defendant Lewis bargained for was, that he and his party should be carried by the captain and the crew on board the Adelaide to Richmond, without the addition of strangers; and such a contract might be well carried into effect, without considering the possession changed from the owners to Lewis. The captain and the crew, who continued in the management of the vessel, were the servants of the owners, not of Lewis. If any injury had been occasioned by the vessel, the owners, not Lewis, would have been answerable for the damages. There were some parts of the vessel manifestly not in the possession of the Defendant Lewis, and some parts to which he had even no right of access or entry; such as the parts occupied by the crew, the room containing the machinery, and the like. If the captain had carried goods to Richmond for other persons, to any extent short of incommoding the Defendant Lewis and his friends, the Defendant could not have prevented it, either by removing the goods, or by action against the owners: — all' which considerations tend to shew the possession wasnever given up. The case has been compared to that of a person put into possession of a room at an inn or tavern, where the guest (as it is alleged) might turn out by force any stranger who intruded himself, whether by leave of the innkeeper or without. Even admitting such to be the law, the cases are by no means similar. The sole and exclusive possession of the room is given to the guest: there is nothing more to be done by the landlord than to leave him in possession. It is the intent and object of the contract between the parties, that such possession should be exclusive and undisturbed. Even the innkeeper has parted with his right to enter for the time the guest is in possession, except for A a 2

purposes

1834.

DEAN

V.

HOGG.

purposes manifestly implied by their relative situation, or for purposes allowed by law. But, in this case, the merely putting Lewis in possession of the vessel would have been nothing; the main part of the contract remained to be performed by the captain and crew; viz., the carrying them to Richmond and back again: for which purpose it was essential they should remain on board, and retain the management and conduct of the vessel. Looking, therefore, at the object and intention of all parties, we think the exclusive possession of the vessel did not pass to the party hiring the vessel for the limited purpose of being carried to Richmond and back, and, consequently, that the plea is not established. And we feel the more satisfied in not being obliged to disturb this verdict, because we think it meets the justice of the case.

Rule discharged.

Jan. 13.

Where the pa- THIS

tron of a rec

tory, who is

and is inducted into a second

BETHAM V. GREGG.

was an action of debt brought by the Plaintiff, as rector of the rectory of the parish church of also the incum- Stoke Lacy, to recover the value of certain tithes growing bent, accepts and arising within the said parish, which had been taken and received by the Defendant to his own use during the time of the vacation of the said rectory. The Plaintiff, in the first count of his declaration, stated, in substance, that one Thomas Apperley, being the rector of the rectory, and also the patron thereof, accepted and was admitted, instituted, and inducted into the vicarage

benefice with cure of souls,

the first be

comes wholly

vacant, whe

ther above or below the

value of 81. in

the King's books, and the successor to the first is entitled to the tithes from the time his predecessor has accepted the second.

of

of the parish church of Ocle Prichard, the said rectory and vicarage being each of them a benefice with cure of souls; whereby it belonged to the said Thomas Apperley, so being patron thereof as aforesaid, to present, and thereupon he did present the Plaintiff to the then Bishop of Hereford (since deceased), the proper ordinary, to he admitted, instituted, and inducted and the declaration then stated in terms, "that the said Thomas Apperley thenceforth ceased to be, either in fact or of right, rector of the said rectory and parish church of Stoke Lacy, and, by reason of the premises, the same rectory and parish church became wholly vacant." The count then proceeded to allege, that the said Thomas Apperley afterwards presented the Plaintiff to the succeeding Bishop of Hereford, to be admitted &c., and that the Plaintiff was afterwards duly admitted, instituted, and inducted; and then claimed the value of the tithes taken by the Defendant to his own use, in the interval between the first presentation of the Plaintiff and his admission, institution, and induction under the second.

The Defendant pleaded, that "the rectory of Stoke Lacy, at the times mentioned, was, and still is, a benefice with cure of souls, below the yearly value of 87., according to the valuation thereof in the King's books." To which plea there was a general demurrer and joinder.

There was a second count in the declaration, which, after stating the presentation of the Plaintiff to the vicarage of Ocle Prichard, as in the first count, alleged directly, that "the said Thomas Apperley thenceforth ceased to be rector of the rectory of the parish church, in fact or of right;" to which second count the subsequent pleadings were the same as to the first count. (a)

(a) See Apperley v. Bishop of Hereford, 9 Bingh. 681.

1834.

BETHAM

V.

GREGG.

1834.

BETHAM

V.

GREGG.

Ludlow Serjt., for the Defendant, abandoned the pleas, but took exception to the declaration.

In order to sustain this action, the Plaintiff must shew on the face of his declaration that, during the time for which he claims to recover the tithes, the living of Stoke Lacy was vacant within the meaning of the statute 28 H. 8. c. 11.; for he who seeks to recover by virtue of a statute must shew himself to be strictly within its provisions; Com. Dig. Pleader, (C.) 76. Under that statute, the acceptance of a second living does not render the first void, unless the first be above the value of 81. a year, or the incumbent has actually resigned. If the first living be under the value of 81. a year, it is only voidable upon the acceptance of a second; and sentence of deprivation, death, or resignation, is necessary to complete the vacancy. Wats. Clerg. Law, C. 2.

It is not sufficient, therefore, for the Plaintiff to allege merely that the incumbent of Stoke Lacy was inducted into Ocle Prichard; he ought further to allege, either that Stoke Lacy is above the value of 81. a year, or that sentence of deprivation has been passed on the former incumbent; or that he has resigned, or is dead. (See the argument for the Defendant, and the judgment, in Halton v. Cove. (a) While the first living is only voidable, the original incumbent may sue for the tithes : 2 Roll. Abr. 363.

The allegation in the second count, that "the said Thomas Apperley thenceforth ceased to be rector of Stoke Lacy," is no more than the conclusion of the pleader from the facts before stated; and those facts do not warrant the conclusion.

Stephen Serjt. for the Plaintiff. That allegation is in itself a direct and positive allegation of fact, on which (a) 1 B. & Adol. 549.

the

the Defendant might have taken issue, and which he has admitted by pleading over. The second count is, therefore, clearly sufficient; and even if the allegation, that Apperley accepted another living, be taken to shew that the living of Stoke Lacy became thereupon only voidable, the further allegation, that the Plaintiff was presented, instituted, and inducted into Stoke Lacy, taken in conjunction with the former, establishes that it was completely vacant. Stoke Lacy, however, whether it be above the value of 87. a year, or under, became void to all intents upon the incumbent's accepting another living. If it be above 87. a year, it became void under the statute 28 H. 8. c. 11.; if of less value, under the canon law, which, upon such an occurrence, declares, without qualification as to value, that the incumbent eo sit ipso jure privatus. Apperley v. Bishop of Hereford. (a)

Cur. adv. vult.

TINDAL C.J. (after stating the case, as antè p. 352.),— though it was contended, in the course of the argument, that the direct allegation in the second count, of Thomas Apperley having ceased to be the rector of Stoke Lacy, being admitted in the course of the pleadings, there was an end to any question whether the church was vacant or not; yet, inasmuch as it may be fairly contended that such allegation, though direct in point of form, is no more in substance than a legal inference or conclusion from the facts stated in the same count, we think it better to found our judgment upon the general question raised upon the whole record.

The question raised appears to be this:- The patron of a benefice, with cure of souls, under the value of 87. in the king's books, being also the incumbent of the same benefice, accepts another benefice with cure, and

1834.

BETHAM

V.

GREGG.