The Right Rev. Nathaniel Lord Bishop of Meath, and the Rev. James Alexander, Clerk, - Plaintiffs in Error; The Most Noble Charles, Marquis of Winchester, - Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 01 August 1836 |
| Date | 01 August 1836 |
| Court | Exchequer |
English Reports Citation: 7 E.R. 171
FROM THE EXCHEQUER CHAMBER IN IRELAND.
Mews' Dig. v. 21, 1227, 1254; vi. 688, 700; S.C. 10 Bli. N.S. 330; 3 Bing. N.C. 183, 3 Scott, 561. Explained and applied in Carlisle v. Whaley, 1867, L.R., 2 H.L. 391. On point as to proper custody (10 Bli. N.S. 447), followed in Doe, d. Neale v. Samples, 1838, 8 Ad. and E. 154.
[445] WRIT OF ERROK from the exchequer chamber in ireland. The Right Rer. NATHANIEL Lord Bishop of MEATH, and the Rev. JAMES ALEXANDER, Clerk,-Plaintiffs in Error; The Most Noble CHARLES, Marquis of WINCHESTER,-Defendant in Error [May 24 and 25, 1835; July 6, and August 1, 1836]. [Mews' Dig. v. 21, 1227, 1254; vi. 688, 700; S.C. 10 Bli. N.S. 330; 3 Bing. N.C. 183, 3 Scott, 561. Explained and applied in Carlisle v. Whaley, 1867, L.R., 2 H.L. 391. On point as to proper custody (10 Bli. N.S. 447), followed in Doe, d. Neale v. Samples, 1838, 8 Ad. and E. 154.] In quare invpedit against the Bishop of M. to recover the presentation to the church of K., the advowson whereof was claimed to be part of the temporalities of the bishopric, a case purporting to be a case stated for the opinion of counsel on the part of A., a former Bishop of M., touching the right of presentation to that church, and found in the family mansion of A.'s descendants, was offered and received in evidence: held, that it was admissible a-s against his successor in the same see. held also, that a deed relating to the same church, and brought from the same custody, was admissible in evidence against the same part)'. A grant, by letters patent of King Edward 4, dated at Droghedai, in the ninth year of his reign, to W., Bishop of M., and his successors, of the advowson of the rectory of K., was also given in evidence. An Act of Parliament was passed at Drogheda, 10 Henry 7, by which, after reciting that " intolerable oppressions and extortions over the poor innocent and true subjects within the poor land of Ireland, which could not be reformed without great costs, and as great part of the King's revenues of the said land had been diminished and granted to divers persons who did little service for the commonweal," it was enacted " that there be resumed unto the King's hands all manors, lordships, castles, garrisons, fortresses, advowsons of churches, etc., whereof our said Sovereign Lord, or any of his noble progenitors, Kings of England, was at any time seised in fee-[446]-simple or fee^tail, from the last day of the reign of King Edward 2,-and all feoffments, gifts in tail, grants, etc., of all and every the aforesaid honors, manors, etc., as before specified, as well by Parliament as by any letters patent under the Great Seal of England or Ireland, made to any person or persons by whatsoever name or names they be named, from the said day be resumed, revoked, annulled, and deemed void and of none effect in law." held, that the said Act avoided the grant, and re-appended the advowson to the manor of R., whereto it was appendant before the grant. A plaintiff in quatre imped/it, after tracing his title through various steps, and averring the death of W., who had been shown 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 171 IV CLARK & FINNELLY. MEATH V. WINCHESTER [1835-1836] 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. held that, if admitted, it ought not to be left to the jury to say whether it barred the action of quare impedit. And held that it did not bar the action. The benefice of Killucan, otherwise Rathweir, in the diocese of Meath, and county of Westmeath, in Ireland, having become vacant in February 1828, by the death of the Rev. Henry Wynne, the late incumbent, the Marquis of Winchester claiming the advo'wson thereof, as trustee for the Marquis of Clanricarde, presented his clerk, the Rev. Cecil CramptotL, to the Bishop of Meath, as a fit person to be admitted to the same. The Bishop refused to admit him, [447] and collated his own son, the Rev. James Alexander, to the vacant benefice. The Marquis of Winchester thereupon brought an action of quare impedit against the Bishop and the Rev. James Alexander, in the Court of Common Pleas in Ireland. The declaration contained six counts, but the plaintiff entered a nolle prosequi to the first and second, and the jury was discharged on the third, fourth, and sixth counts, so that the questions in the cause arose only on the fifth count, and the pleadings and evidence relating to it. 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 admitted). It then alleged that Rickard, fourth Earl of Clanricarde, was in 1626 seised in fee1 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 Rickard, the fourth earl, presented one Edward Donnellan, his clerk, who was admitted, instituted, and inducted ; that in 1635, Rickard, 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 Rickard his heir at la.w (whose descent was set out in the declaration and admitted by the defendants), who became sixth earl; that by letters patent under the Great Seal of England, bearing date the 8th of April, 14 Car. 2, that [448] king granted to Rickard, sixth earl (inter alia) the manor of Rathweir, with the advowson which was then appendant thereto, to the use of Rickard, sixth earl, in tail male, with remainders over; that the Irish Act of Parliament 14th and 15th Car. 2, confirmed the letters patent, saving the rights of persons claiming paramount the crown : that in 1666, Rickard, 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 re-lease 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 advowson in gross, with remainders over ; that in 1687, William, seventh earl, died so seised, leaving his eldest son Rickard, who became eighth earl, and was seised in tail of the advowson; that by the Irish Act 2 Anne, 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, Rickard, 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 said Act, 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 to the Protestant religion, 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 [449] 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 172 MEATH V. WINCHESTER [1835-1836] IV CLARK & FINNELLY. heirs, to the use of John Smith, eleventh earl, for life, with remainders over; that by an English Act of Parliament, 10 Geo. 3, the advo'wson 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, by an indenture o f settlement, made in contemplation of his marriage with Urania Anne Pawlett, in exercise of the power given to him by the said Act of 10 Geo. 3, demised the advowson to Henry Penruddock Wyndham and the plaintiff, then Charles Ingolsby Pawlett, for a term of five hundred years, to commence from the death of himself, the said Henry, twelfth earl, for securing a jointure to the said Urania Anne, his intended wife; that Henry, twelfth earl, married, and in 1797, died, leaving his said wife him surviving and still living; that thereby Henry Penruddock Wyndham and the plaintiff became possessed of the advowson in gross for the said...
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