The Executors of The Marquis of Winchester v The Bishop of Killaloe

• Jurisdiction: Ireland
• Judgment Date: 24 April 1846
• Date: 24 April 1846
• Court: Court of Common Pleas (Ireland)

Common Pleas.

The Executors of THE MARQUIS OF WINCHESTER

and

THE BISHOP OF KILLALOE.

Digby v. FitzpatrickENR Hob. 101, 102.

Morrison v. Redshaw 1 W. Saund. 187, n. 1.

Newman v. MarchENR Latch, 14, 121.

All Saints College v. TamworthENR 1 Leon. 153.

Davenant v. Bishop of SarumENR 2 Lev. 68.

Astot v. Clarke 2 Lntw. 1233.

Everard v. PattersonUNKENR 2 Marsh, 304; S. C. 2 Wms. Saund. 48, n.

Dalton v. The Bishop of Ely 2 Cro. James, 673

Ellis v. The Archbishop of YorkENR Hob. 315

Apperly v. Bishop of Hereford 3 M. & Scott, 102.

Ingram v. FootENR 1 Ld. Raym. 709.

Jones v. AxonENR 1 Ld. Raym. 120.

Steele v. SmithENR 1 B. & Al. 94.

Ward v. Bird 2 Chit. 582.

Montgomery v. Sherlock Ir. Term Rep. 543.

The King v. ChetwodeENR 7 B. & C. 703.

Culpepper v. Conveney Vin. Ab. Prerogative M. 6,13.

Gully v. The Bishop of ExeterENR 10 B. & C. 584.

Countess of Northunberland's case 5 Co. 97, c.

Dicken v. MorelandENR Poph. 200.

E. T. 1846. CommonPleas. The Executors of THE MARQUIS OF WINCHESTER THE BISHOP OF KILLALOE. (Common Pleas.) Apra 24. QUAKE IMPEDIT.-The declaration contained four counts. Then a declara- tion in quare first count commenced by setting out the pedigree of the Earls of impedit, the Clanricarde, from Ulick, the first Earl, in 1544, to Rickard, the sixth Plaintiffs set out as the Earl, in 1662, showing that the latter was the heir male of the body commence- of the formtr. The count then proceeded to state, that on the 6th went of title, letters patent of April 1662, King Charles the Second made his letters patent, of the 6th of sealed with the Great Seal of England, and thereby granted unto April 1662, whereby King the said Rickard, the sixth Earl, and his heirs, inter alia, the Charles the Second grant rectory of Kilgerrill, with the appurtenances, together with the ed unto RickÂÂadvowson of the vicarage of Kilgerrill, which was then and there and the sixth Earl of C. and appendant to the said rectory, to hold to him and his heirs, to the his heirs, inter alia, the a- use of Charles M`Cartie, commonly called Viscount Muskerry, his vowson of Kd., heirs and assigns, until the said Rickard, or his heirs, or the heirs habendum to the use of male of the body of Ulick, the first Earl, should pay or cause to be C. /VC., Lord paid to the said Viscount Muskerry, his heirs or assigns, the several M. his heirs and assigns, sums in the said letters patent specified, at the times, and in the until the said Rickard,or his heirs, should pay to the said Lord M., his heirs or assigns, the several sums in said letters patent specified, at the time, and in the manner therein mentioned, which sums the declaration averred had been long since duly paid of and discharged, to wit, on the day and year, and at the place last aforesaid ; and from and after due payment of said several sums in form aforesaid, then to the use of said Rickard and his heirs male, &c. The declaration then stated, that by the Act of Settlement (14 & 15 Car. 2), it was enacted, that all houses, castles, &c., and other hereditaments whatsoever, granted by said patent, should be immediately vested, settled, and established, and were thereby vested, settled, and established in the said Rickard and his heirs, to and for the uses, &c., expressed and set forth in said patent, saving all manner of persons, &c., other than his said Majesty, his heirs and successors, or those claiming under him, and other than such whose estate would have vested in his said Majesty by the general scope of said Act, if the above proviso had not been inserted ; and other than such as bad held any of the lands, &c., by said patent granted, by or under any defeasible estate ; and other than such as might claim any right or title thereto, in prejudice of any of the uses limited by said patent, by descent, or by virtue of any estate in remainder in tail, from any of the late Earls of C. It was then averred, that the said Rickard, as also his heir, William the seventh Earl, were and continued to be Irish Papists until their respective deaths ; and that by the Act of Explanation (17 & 18 Car. 2), it was enacted, that nothing in the Act of SettleÂÂment or Explanation should be understood to give, restore, or confirm to any Irish Papist, any advowson or right of patronage, but that all such should vest, remain, and continue in his Majesty, his heirs and successors, until the conformity of such Papist, and after such conformity should revest in the person so conforming and his heirs. It was then averred, that King Charles the Second, being seised of the said advowson, did, by patent of the 19th of December 1681, reciting the Act of ExplaÂÂnation, and that Rickard Lord Dunkellin (the eldest son of William the seventh Earl) had renounced the Communion of the Church of Rome, and had embraced the Protestant religion, and had thereby put himself in the capacity of obtaining a mark of the said King's favour, grant to the said Lord 11 and his heirs, conÂÂtinuing Protestants, inter alia, the said advowson of K. It then averred a presentation of said advowson by said Lord D., which was the presentation relied on. Held; that the words in the Act of Explanation, providing that the advowsons of Irish Papists should "remain and continue" in the King until conformity, were introduced to retain and preserve that species of property in the Crown until the conformity of the Irish Papist who had forfeited it, and, therefore, that it was not competent in Charles the Second to grant the advowson to Lord D.; and that conÂÂsequently, the declaration was bad in not having shown a presentation which could be referred to the title relied upon. Held, also, that the declaration was bad, in not having shown the payment of the money in the patent specified, to Lord M., at the time, and in the manner in the patent mentioned to have occurred prior to the grant to Lord D. Held, also, that the declaration was defective, in not having averred that Lord D. was a Protestant, or had conformed at the time of the patent of 1681. The title of the plaintiffs, as stated in the declaration, was a term of five hundred years created by a settlement of 1785, which was not to commence until the deterÂÂmination of a previous term of three hundred years created by a private Act, 10 G. 3, and the " trusts of which term (it was averred) had been long since satisfied, and the said term ceased and determined." Held, that the declaration was bad, in not having shown on which event or events that term was to cease and determine, or that any event or events had occurred upon which the term did cease and determine. Held, that it is competent for a Bishop defendant to demur to a declaration in quare impedit, if the case made by the plaintiff is insufficient in point of law. Queere.-Did the said declaration show that a good title to present to the said vicarage was vested in any person, anterior to, or at the time of, the presentation on which the plaintiffs relied P estate would have vested or been in his said Majesty, by the general E. T. 1846. scope, words, or intent of the said Acts, if the above proviso were a'n"nmPie" not had, made, inserted, or mentioned in the said Act, and other than maw's OF such who had held, or were possessed of any of the lands, tene- WINCHESTER ments, or hereditaments, by the said letters patent granted, by or BISHOP OP ILLALOB. under any defeasible right, title, or estate ; and other than such as should or might pretend, or claim any right or title thereto, in' preÂÂjudice of any of the uses limited in and by the said letters patent, by descent, or by virtue of any estate or remainder in tail from any of the late Earls of Clanricarde, all and every their right, title, interest, and estate, as by said Act may appear. The count next stated, that Rickard, the sixth Earl, was a Papist at the time of the letters patent of 1662, and of the Act of SettleÂÂment, and continued such during his life. It then proceeded to state the 158th clause of the Act of Explanation (17 & 18 Car. 2, e. 2), whereby it was, amongst other things, enacted, that nothing in the said former Act, nor in the then present Act contained, should be understood to give, restore, or confirm, to any Irish Papist, or Popish recusant, or any other person seised or possessed in trust for such, any advowson, or right of patronage of or in any ecclesiastical beneÂÂfice, or right of nomination, presentation, or collation to any. such ; but that all such advowsons, &c., should vest, remain, and continue, and so were thereby adjudged to vest, remain, and continue, in his said Majesty, his heirs and successors, until such Irish Papist, or Popish recusant, or the right heirs of such Papist or recusant, should come to Chnrch, and receive the Sacrament, according to the rites of the Church of England ; and from and after such conforming, should be again re-vested in the person so conforming, and his heirs. The count next averred, that by force and virtue of the premises, the advowson vested, remained, and continued in his Majesty King Charles the Second, and that his said Majesty was, and continued to be, seised thereof, as one in gross, to him, his heirs, and successors, until the said Rickard, or his right heirs, should come to Church and receive the Sacrament, according to the rites of the Church of England ; and that the rectory of Kilgerrill was then and there, and continued to be, vested in Rickard, the sixth Earl, and his heirs, on the uses in the said letters patent set forth. It was then averred, that on the 10th of August 1667, Rickard, the sixth Earl, died without issue male of his body, leaving William, his next brother and heir-at-law, him surviving, and which William was heir male of the body of Ulick, the first Earl ; that therefore the rectory descended on William, as such heir male of the body of Ulick the first Earl, and that he became seised in fee tail male of the rectory to him and the heirs male of his body, the...