face of the declaration, the *plaintiff shows that he is both patron [*87 and incumbent. He alleges that he resigned the living of St. Giles, Camberwell, but not the district church of St. Mary Magdalen. [MAULE, J.-Though he might resign the district church without resigning the mother church, he could not resign the latter, and retain the former.] It is submitted that he could. Being possessed of the incumbency of St. Giles, Dr. Storie was disqualified from being presented to the district church. His incumbency of the mother church having ceased on his resignation, he is expressly prevented from holding the district church, by the 1 & 2 Vict. c. 106, s. 11, which enacts, "that, if any spiritual person, holding any cathedral-preferment or benefice, shall accept any other cathedral-preferment or benefice, and be admitted, instituted, or licensed to the same, contrary to the provisions of this act, every cathedral-preferment or benefice so previously held by him, shall be and become ipso facto void, as if he had died, or had resigned the same, any law, statute, canon, usage, custom, or dispensation to the contrary notwithstanding." Dr. Storie resigns St. Giles's: he presents himself de novo to St. Giles. Mr. Darvell resigns the district church; Dr. Storie then presents himself to the district church. [MAULE, J.-He thereby vacates St. Giles.] Only if his holding the two livings is incompatible with the 21 H. 8, c. 13. [MAULE, J.-No doubt, these two livings *cannot be held together it is the first [*88 that is void. There is nothing to prevent Dr. Storie from holding St. Mary Magdalen, giving up St. Giles.] It is submitted, that, on Dr. Storie's resignation of St. Giles, St. Mary Magdalen was not full of Mr. Darvell, so as to prevent a lapse.

Although it is true that the ordinary cannot, as against the patron, counterplead by a lapse to himself, yet the case is different where the lapse is to the crown. In Watson's Clergyman's Law, edit. 1747, p. 116, 117, it is said: "After a church is lapsed to the bishop or archbishop, it concerns them to take advantage thereof with all speed, lest the benefit be lost; for, after a church is lapsed to the immediate ordinary, if the patron doth present before he hath filled the church, the ordinary ought to receive his clerk for, lapse to the ordinary is only an opportunity of executing a trust, viz. of seeing the cure supplied, in case of the patron's neglect ; interval, but no perpetual curate having been appointed thereto,-first, the district church became vacant, either by the plaintiff's resignation of or re-institution and induction to the mother church, secondly, and this though Mr. Darvell was, at both those times, stipendiary curate of the district church,-thirdly, consequently, that, no perpetual curate having been appointed within eighteen months, the district church lapsed to the crown under the 58 G. 3, c. 45, s. 25,-fourthly, that the enactment (1 & 2 Vict. c. 107, s. 13), that, in all district churches and district chapelries, the license of the stipendiary curate appointed to serve the chapel of such chapelry, shall not be rendered void by the avoidance of the church of the parish or district parish in which such chapel is situate, unless the same shall be revoked by the bishop of the diocese, under his hand and seal, does not prevent the district church becoming vacant, or lapse to the crown taking place, under the circumstances stated,-fifthly, that it is perfectly comPetent to the defendant to set up the title of the crown to present by way of lapse, in opposition the title of the plaintiff,-sixthly, that the pleas are good in point of form."

which being performed by the patron himself, the ordinary can take no advantage by it: 11 H. 4, 80;(a) 18 E. 3, 21 a;(b) 13 E. 4, 3;(c) 43 E. 3, 11 a;(d) Trin. 18 H. 7, Keilwey, 50. And by HOBART, in Colt and Glover's case, p. 154; 28 & 29 Eliz. Beverley v. The Bishop of Canterbury and Cornwall, 1 Anderson, 148; Doctor & Student, 1. 2, c. 36. If one hath the nomination, and another the presentation, and the six months being incurred, he that hath the presentation only presenteth to the bishop, before the bishop hath taken benefit of the lapse, without any nomination made to him, in such case the bishop is bound to admit the clerk, as the clerk of the very patron. By Doderidge, in his Complete *Parson, Lect. 12, fo. 67. Or, though the patron did not present *89] within his six months, but the ordinary did collate before the expiration thereof, the patron is not thereby barred from presenting, but may present after the six months be expired, and his clerk ought to be received: Green's case, 6 Co. Rep. 22; Boswell's case, 6 Co. Rep. 5 But, if the bishop, in such case, after the six months, and before any presentation exhibited, hath made a new collation, the patron is barred: 2 Roll. 368; Co. Litt. 344. So, though lapse be incurred to the infe rior ordinary, and the archbishop doth collate within the inferior ordinary's six months, the patron's clerk, if he be presented, ought to lo received; because the collation of the metropolitan is tortious, and do:h not put the patron to his quare impedit, but is null, and as no collation to the patron: By Rolle, in his Abridgment, vol. ii. p. 368.(e) Ent this is doubted of, and objected, that the wrong is here done to the ordinary only, and not to the very patron. 11 H. 4, 80.(g) The live law, if lapse be accrued to the metropolitan; for, then, if the patron present to the inferior ordinary, whilst the church remains void, he is bound to receive his clerk, and the metropolitan is barred: Booton v. The Bishop of Rochester, Hutton, 24; Doctor & Student, 1. 2, c. 36. But, if either the ordinary of the diocese, or metropolitan, hath collated his clerk, whilst the turn was respectively theirs, although the clerk be not inducted, the patron's clerk, if after that presented, is not to be admitted. Trin. 10 Eliz. Dyer, 277. Or, if the inferior ordinary, after the time is gone by lapse to the metropolitan, hath collated his clerk to the benefice that is in lapse, although this collation be *90] *tortious to the metropolitan, yet it seems that it takes away the presentation of the patron, so that he shall not present, and is only an usurpation upon the metropolitan: By FINCH, J., at Somerset assizes; Sir Francis Popham v. The Bishop of Bath and Wells, 2 Roll. 350, 368, 17 Vin. Abr. 319, pl. 6. And thereby the metropolitan is put out of possession, and driven to his quare impedit. Green's case, 6 Co.

(a) T. 11 H. 4, fo. 79, 80, pl. 22.

(b) R. v. Bishop of Carlisle, E. 18 E. 3, fo. 21, pl. 37.

(c) M. 13 E. 4, fo. 3, pl. 5.

(d) H. 43 E. 3, fo. 10 b, 11 a, p.. 33.

(e) Translated, 17 Vir Abr. 389, pl. 4.

(3) Suprà, SS.

29 b; Boswell's case, 6 Co. 50; Co. Litt. 344. It hath been a question whether the bishop ought to admit the patron's clerk, after the title of lapse is passed from the metropolitan to the King. Trin. 10 Eliz. Dyer, 277; and by Hobart, the patron's presentation takes place, after the church is lapsed to the King, if it be exhibited to the ordinary before the King's: in Colt and Glover v. The Bishop of Coventry, Hobart, 157. Because the patron's right to present continueth until the title by lapse is executed, and the King's title is not vested in him in this case absolutely, as other titles are, but conditionally, viz. if he doth present before the patron: because the King hath it only as supreme ordinary: Hutton, 24. But, by others, the turn by lapse is so vested in the King, that, if the patron's, or other person's, clerk be admitted to a church after 'tis come to the King by lapse, the King by quare impedit may recover the presentment, and remove such clerk. Beverley v. The Bishop of Canterbury, 1 And. 148; Baskervile's case, 7 Co. Rep. 28; 27 E. 3, 85; (a) The Bishop of Lincoln's case, Owen, 89; Cumber v. The Bishop of Chichester, cited in the case of The King v. The Archbishop of Canterbury and Prust, Hetley, 124. And this latter opinion is taken to be the law." In 2 Bla. Comm. 277, it is said: "If the bishop doth not collate his *own clerk immediately to the living, and the patron presents, though after the six months are lapsed, yet his presentation is [*91 good, and the Bishop is bound to institute the patron's clerk: for, as the law only gives the bishop this title by lapse, to punish the patron's negligence, there is no reason, that, if the bishop himself be guilty of equal or greater negligence, the patron should be deprived of his turn. If the bishop suffer the presentation to lapse to the metropolitan, the patron also has the same advantage, if he present before the archbishop has filled up the benefice; and that for the same reason. Yet the ordinary cannot, after the lapse to the metropolitan, collate his own clerk, to the prejudice of the archbishop: for, he had no permanent right and interest in the advowson, as the patron hath, but merely a temporary one; which having neglected to make use of during the time, he cannot afterwards retrieve it. But, if the presentation lapses to the King, prerogative here intervenes, and makes a difference; and the patron shall never recover his right till the King has satisfied his turn by presentation: for, nullum tempus occurrit Regi." In 17 Viner's Abridgment, 392, Presentation (B c. 2), pl. 4, it is said, that, when a lapse is in the King, he is not compellable to present, and, till he presents, the ordinary has the cure de animis,(b) and he shall provide for it so the difference is between the cura animarum and the patronage: Per DODERIDGE, J., 1 Roll. R. 464, in the case of Colt v. Glover." In Watson's Incumbent, p. 288, is the following passage:- Note,

(a) M. 27 E. 3, fo. 8, pl. 25. The reference in the text is to the old edition of Y. B. (b) Sic in the report in Rolle.

VOL. IX.-6

that neither plaintiff nor defendant may have judgment or execution, but a third person, that is no party to the suit; for, if, in the debate of a cause betwixt a plaintiff and defendant, it doth appear to the court, either by the declaration of *the plaintiff, or by pleading, or con

*92] fession of the parties, that neither of them hath right, but the presentation belongs to the King, the Court may, nay, they ought to, award a writ to the bishop for the King, and without prayer on the part of the King; for, the court and judges are the King's counsel." Here, the plea merely adds to the facts stated in the declaration, that Dr. Storie held both the mother church and the district church as one church, being together of a greater yearly value than 1000l., whereby the church of St. Mary Magdalen became vacant; and that, eighteen. months having elapsed since the resignation by Dr. Storie of the church of St. Giles, and notice thereof, the right to present vested in the crown so that, by reason of the prerogative of the crown, the plaintiff is not entitled to recover. It is, therefore, not like the case of a bishop setting up the title of a private individual. In Apperley v. The Bishop of Hereford, the bishop pleaded, not the title of the crown, but his own title to present by lapse. For these reasons, it is submitted that Mr. Darvell was not incumbent so as to prevent a lapse, that the title to present was in the crown, and that it was competent to the bishop to plead that.

Manning, Serjt., in reply.-The distinction attempted to be set up between the present case and Elvis v. The Archbishop of York, on the ground that the Crown is interested here, is not well founded: and, in truth, that was a case of title in the crown. The reason why the ordinary is not permitted to counterplead, is, that he is a stranger to the advowson. He cannot set up the jus tertii: and the rule applies with equal force in the case of the crown, as in the case of a subject. Besides, a mere allegation of title in the crown, is not enough to entitle the court to interfere in the way suggested. In the passage last cited from Watson, the *learned author adds: "But this must be when *93] the King's title appears so clear in allegatis et probatis to the court, as that it is infallible both against plaintiff and defendant." Cur. adv. vult.

WILDE, C. J., now delivered the judgment of the court.(a) We have considered this case, and we are of opinion that the declaration discloses a perfectly good title in the plaintiff to present, and that the pleas afford no answer. We consider the law to be well settled by the case of Elvis v. The Archbishop of York, confirmed by Apperley v. The Bishop of Hereford, viz. that it is not competent to the bishop to counterplead the patron's title.

With regard to the other objection,-that the incumbent, being in possession of the church of St. Giles, Camberwell, could not be admit

(a) WILDE, C. J., MAULE, J., CRESSWELL, J., and WILLIAMS, J.

ted to the church of St. Mary Magdalen, Peckham,—it appears to be quite clear, according to the doctrine laid down by this court in Apperley v. The Bishop of Hereford, that, by the admission of Dr. Storie to the church of St. Mary Magdalen (the two livings being together worth more than 1000l. per annum), the incumbency of St. Giles became, ipso facto, void. We are, therefore, of opinion that there is no objection to the admission of the plaintiff's clerk on that ground, and that the pleas are unquestionably bad, and therefore the plaintiff is entitled to judgment. Judgment for the plaintiff.

*MOSS and Others v. SMITH and Another. Jan. 17. [*34 A ship, valued at 12,000, was insured from Valparaiso to England; the freight, valued at 40007, was also insured by a separate policy: the ship, having sailed with a full cargo, consisting of 800 tons of merchandise, was compelled, by stress of weather, to put back to Valparaiso, where the master, finding, upon survey, that, to repair her so as to enable her to bring home the entire cargo, would cost a sum exceeding the value of the freight, though less than the value of the ship when repaired, sold her: Held, not a total loss of either ship or freight.

ASSUMPSIT on two policies of assurance.

The first count was upon a policy, dated the 4th of May, 1844, for 1000l., upon the ship Alfred, valued at 12,000., at and from her port or ports of loading in the Pacific, not north of Lima, to her port or ports of discharge in the United Kingdom: Averment of a total loss, by perils of the sea.

The second count was upon a policy of the same date for 10007. on chartered freight in the said ship Alfred, valued at 4000l., at and from Sidney, New South Wales, to all or any port or ports in the Pacific, not north of Lima, to her port or ports of discharge in the United Kingdom: Averment, that the ship, by the perils and dangers of the sea, &c., became leaky and greatly damaged, and by the said perils and dangers the said ship became wholly lost to the plaintiffs, and never did arrive at her port of discharge; that the plaintiffs thereby lost the freight of the goods on board the said ship; and that thereupon the plaintiffs gave notice of the premises to the defendants, and then, according to the custom of merchants, abandoned and renounced ali their interest in the premises to the defendants,-Notice of the premises, and demand of payment.

The declaration also contained the common counts.

The defendants pleaded, amongst other pleas, thirdly, as to so much of the first count as related to the defendants' not having paid or made good the partial loss *and damage, payment into court of 1007., and no damages ultrà,-verification.

[*95