The Lord Bishop of Meath, and James Alexander, Clerk, Plaintiffs in Error, v The Marquess of Winchester, Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 06 July 1836 |
| Date | 06 July 1836 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 380
IN THE COURT OF COMMON PLEAS
S. C. 10 Bligh (N. S.), 330; 6 E. R. 125 (with note); 4 Cl. & F. 445; 7 E. R. 171 (with note).
[183] in the house of lobjds. (In Error from the Exchequer Chamber in Ireland.) the lord bishop of meath, and james alexander, Clerk, Plaintiffs in Error, v. the marquess of winchester, Defendant in Error. July 6, 1836. [S. C. 10 Bligh (N. S.), 330; 6 E. E. 125 (with note); 4 Cl. & F. 445; 7 E. E. 171 (with note).] 1. A case touching the right of presentation to a living by the bishop of M., stated for the opinion of counsel, by a bishop of M. in 1695, and found in the family mansion of the D.'s, descendants of that bishop, Held evidence against a subsequent bishop of the same see on a question touching the right of presentation to the same living. -2. A plaintiff in qu. imp., after tracing his title through various steps, and averring the death of W., who had been shewn to be a joint tenant with Plaintiff of : a term of years in an advowson, alleged, " Whereupon and whereby the Plaintiff became and still is possessed of the said advowson as of an advowson in gross for the remainder of the said term so theretofore granted:" the Defendant pleaded, that he, as bishop of M., was seised of the advowson in gross in right of his see, without this that the plaintiff was possessed of the advowson in manner and form as the Plaintiff had alleged : Held, that a fine of the advowson in question levied in 1 Jac. 2 by one whose estate the Plaintiff had, was not admissible in evidence under this or any similar issue.-And if received, it ought not to be left to a jury to say whether it barred the action of qu. imp.-3, The statute of 10 H. 7, passed at 3BING.(N.C.)184. BISHOP OF MEATH V. MARQUESS OF WINCHESTER 381 Drogheda, avoided grants of advowson by Ed. 4, and, where they were appendant to a manor, before the grant, reappended them. This was an action of quare impedit brought by the Marquess of Winchester, the Plaintiff below, in the Court of Common Pleas in Ireland, in Easter term 1829, against the Lord Bishop of Meath and the Rev. James Alexander, to recover the advowson of the parish church of Killucan, otherwise Rath weir, in the diocese of Meath and county of Westmeath, in Ireland. The questions arose only on the fifth count, and the pleadings and evidence relating to that count. The fifth count began by setting out from the year 1544 to the year 1626 the pedigree of the Earls of Clanricarde, which the Defendants below admitted. It then alleged that Richard, fourth Earl of Clanricarde, [184] was in 1626 seised in fee of the manor of Rathweir, to which the advowson of the church of Killucan, otherwise Rathweir, was then appendant. That the church became vacant, and that Richard, the fourth earl, presented one Edward Donnellan his clerk, who was admitted, instituted, and inducted. That in 1635 Richard, the fourth earl died seised, leaving Ulick de Burgh his only issue male, who became fifth earl, and to whom the manor, to which the advowson of the church was appendant, descended as heir-at-law. That in 1641 the Irish rebellion broke out against King Charles the First. That, in 1652, the manor to which the advowson was appendant was, on account of the rebellion, sequestered to the use of King Charles the Second. That, in 1657, the manor continuing sequestered, Ulick, the fifth earl, (called Marquis Clanricarde) died without issue male, leaving Richard his heir-at-law (whose descent was set out in the declaration and admitted by the Defendants below), who became sixth earl. That by letters patent bearing date the 8th of April, 14 Car. 2, that King granted to Richard, sixth earl, (inter alia) the manor of Rathweir, with the advowson which was then appendant thereto, to the use of Richard, sixth earl, in tail male with remainders over. That the Irish act of parliament, 14 & 15 Car. 2, confirmed the letters patent, saving the rights of persons claiming paramount the Crown. That, in 1666, Richard, sixth earl, died without issue male, leaving William, his brother, him surviving, who became seventh earl, and being, entitled under the uses limited by the letters patent, became seised of the manor to which the advowson was appendant, in tail male with remainders over. That, in 1670, William, seventh earl, by lease and release with warranty conveyed the manor (excepting the advowson) to Sir Patrick Mulledy in fee. That William, seventh earl, then became seised in tail of the [185] advowson in gross, with remainders over. That, in 1687, William, seventh earl, died so seised, leaving his eldest son Bichard, who became eighth earl, and was seised in tail of the advowson. That by the act, 2 Ann. c. 26, advowsons held by persons professing the Roman Catholic religion were vested in the Crown, according to the estate of the patron till abjuration. That, in 1708, Richard, eighth earl, died seised without issue, leaving his brother John, ninth earl, who being entitled in tail under the uses limited but professing the Roman Catholic religion, the advowson vested under the act of 2 Ann. in Queen Anne, and afterwards in King George the First. That, in 1722, John, ninth earl, died, leaving his son Michael tenth earl, who abjuring and conforming, the estate of the Crown in the advowson determined, and Michael, tenth earl, became seised in tail. That, in 1726, Michael, tenth earl, died seised, leaving John Smith, his son, eleventh earl, to whom the advowson descended, and who became seised in tail. That, in 1745, John Smith, eleventh earl, granted the advowson to Eaton Stannard and Robert French, and their heirs, to the use of John Smith, eleventh earl, for life, with remainders over. That by an English act of parliament, 10 G-. 3, the advowson was vested in Sir Francis Vincent and William Talbot, in fee, discharged of the uses of the deed of 1745, to the use of John Smith, eleventh earl, for life, remainder to his eldest son Lord Dunkellyn for life, with remainders over, and with a power to Lord Dunkellyn to create a term for securing a jointure. That thereupon, in 1770, John Smith, eleventh earl, became seised of the advowson for life, with remainders over. That, in 1782, John Smith, eleventh earl, died seised for life, leaving Henry Lord Dunkellyn, his eldest son, him surviving, who became twelfth earl, and seised for life of the advowson, with remainders over. That, in 1785, Henry, twelfth earl, [186] by a marriage settlement, in exercise of the power given to him by the said act of 10 GK 3, demised the advowson for securing a jointure, to Henry Penruddock Wyndham 382 BISHOP OF MEATH V. MARQUESS OF WINCHESTER 3 EING. (N. C.) 187. and the Plaintiff below, for a term of five! hundred years, to commence from the death of himself the said Henry, twelfth earl. That Henry, twelfth earl, married, and in 1797 died, leaving his wife him surviving and still living. That thereby Henry Penruddock Wyndham and the Plaintiff below became possessed of the advowson in gross for the said term. That, in 1810, Henry Penruddock Wyndham died, leaving the Plaintiff below him surviving, who thereupon became and was possessed of the advowson for the residue of the term. That, in 1828, by the death of the Kev. Henry Wynne, the late incumbent, the church became vacant; that it then belonged to the Plaintiff below to present; and that the Defendants below disturbed him therein. To this count the bishop pleaded thirteen pleas; the clerk, eight. The sixth, seventh, eighth, ninth, tenth, and eleventh pleas of the bishop, and the sixth plea of the clerk, were not material to the questions raised on the record. The bishop's first plea alleging, by way of inducement, that he was seised of the advowson in gross in right of his see, concluded with a special traverse of the appen-dancy of the advowson to the manor of Rathweir. The bishop's second plea, after the same inducement, specially traversed, that Richard, fourth earl, was seised of the manor with the advowson appendant. The bishop's third plea, after alleging, by way of inducement, that he, the bishop, was seised of the advowson in gross in right of his see, and that Anthony Dopping, one of his predecessors, collated Edward Donnellan, concluded with a traverse,- that "Edward Donnellan was admitted and instituted on the presentation of Eichard, fourth earl. [187] The bishop's fourth plea, after the like inducement as to the first plea, traversed that the manor with the advowson appendant was seised and sequestered to the use of Charles the Second. The bishop's fifth plea, after the like inducement, traversed that Charles the Second granted to Richard, sixth earl, the manor with the advowson appendant. The bishop's twelfth plea, after the like inducement, traversed that the Plaintiff below was possessed of the advowson. The bishop's thirteenth plea, after pleading, by way of inducement, a grant by Edward the Fourth of the advowson in gross to the see of Meath, and that Anthony, bishop, collated the Rev. Edward Donnellan, concluded with a special traverse that Edward Donnellan was admitted and instituted on the presentation of Richard, fourth earl. The clerk's first plea, alleging, by way of inducement, that he was parson canoni-cally imparsonate on the collation of the Defendant below, Bishop of Meath, and that the bishop and his predecessors were seised in fee of the advowson in gross, in right of the bishoprick; that the church became vacant, and that he, the clerk, Defendant below, was collated by the bishop, the Defendant below, concluded like the bishop's first plea, with a special traverse of the appendancy of the advowson. The clerk's second, third, and fourth pleas, after inducements the same as that in the clerk's first plea, severally concluded with the same special traverse as the bishop's second, third, and...
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