The Honorable The Irish Society of London v The Lord Bishop of Derry and Raphoe an Another

• Jurisdiction: Ireland
• Judgment Date: 28 April 1841
• Date: 28 April 1841
• Court: Court of Exchequer Chamber (Ireland)

The Court of Exch. Cham.

THE HONORABLE THE IRISH SOCIETY OF LONDON

and

THE LORD BISHOP OF DERRY AND RAPHOE an another.

Crosse v. Bilson 2 Ld. Raymd. 1022.

Eichorn v. Le Maitre 2 Wils. 367.

Mirehouse v. RennellENR 8 Bing. 490.

Peto v. PembertonENR Cro. Car. 101.

Leach v. ThompsonUNK 1 Show. 274.

Commonalty of SadlersUNK 4 Rep. 54.

Sir Edward Dymock's caseENR Lane, 60.

Peacock v. Bell 1 Saung. 74.

Barwick's caseUNK 5 Rep 93.

Alton WoodsUNK 1 Rep. 43.

Case of Tanistry Sir John Davis's Rep. 109.

Alcock v. CookENR 5 Bing. 348.

Middleton v. MeltonENR 10 B. & C. 326.

Peaceable v. WatsonENR 4 Taunt. 16.

Davies v. PierceENR 2 T. R. 55.

Doe v. PetitENR 5 B. & A. 224.

Crease v. BarrettENR 1 C. M. & R. 931.

Walker v. BradstockENR 1 Esp. 458.

Carne v. NichollENR 1 Bing. N. C. 430.

Doe v. WebberENR 1 Ad. & El. 740.

Woolway v. RoeENR 1 Ad. & El. 114.

Gully v. Bishop of ExeterENR 5 Bing. 17.

Deady v. Harrison 1 Stark. N. P. C. 60.

Barker v. King.ENR 2 Russ. 76.

Marks v. LaheeENR 3 Bing. N. C. 418.

Higham v. RidgwayENR 10 East, 109.

Short v. LeeENR 2 Jac. & W. 464, 478.

Merrick v. WackleyENR 8 Ad. & El. 170.

Rex v. DebenhamENR 2 B. & A. 185.

Catt v. Howard 3 Stark. N. P. C. 6.

Adey v. Bridges 2 Stark. N. P. C. 184.

Sturge v. BuchananENR 10 Ad. & El. 548.

The Queen's caseENR 2 Br. & B. 297.

Prince v. SamoENR 7 Ad. & El. 634.

Green's caseUNK 6 Rep. 29. a.

Boswell's caseUNK 6 Rep. 50, a.

Queen v. Archbishop of York Cro. Eliz, 200; S. C. Leon. 226.

quare impedit: Le Roy v. Priest Sir W. Jones, 340.

Chambers v. Bernasconi 1 Cro. & J. 451.

Crease v. BarrettUNK 5 Tyrw. 466.

Woolway v. Rowe. Ante, 205.

The Mayor of Hull v. Horner Cowp. 103.

Gibson v. ClarkeENR 1 Jac. & W. 162.

The Bishop of Meath v. The Marquis of Winchester 10 Bligh, N. R. 440.

Arnold v. The Bishop of Bath and WellsENR 5 Bing. 825.

The King v. The Bishop of ElyENR 8 B. & C. 112.

Parsons v. Bellamy 4 Prico, 108.

The Bank of EnglandENR 2 Ves. sen. 43.

Roe v. RawlingsENR 7 East, 290.

Gufford v. WoodgateENR 11 East, 297.

Price v. Earl of Torrington Sall. 285.

Bullen v. MitchellENR 4 Dow. 298.

CASES AT LAW. 193 184r. Exch. Chan. THE HONORABLE THE IRISH SOCIETY OF LONDON v. THE LORD BISHOP OF DERRY AND` RAPHOE and another. Easter Term. (The Court of Exchequer Chamber.) April 28. In an action of quare impedit for the recoveÂÂry of the living of Camus, in which the Bishop was the defendant, the principal isÂÂsues being as to the seizin of King .Tamesthe First, and seizin and possession of the plaintiffs, the plaintiffs gave in evi dence a recovery of the said living in quare impedit by the Earl of Ulster against the Bishop in 1299, and vested the same by proof of pedigree in King James the First. They then gave in evidence a Royal Commission and Inquisition of the 30th of August 1609, finding that all the advowsons in the county of Coleraine, of which Camus was one, au of right belong to the King in right of the Crown. They next gave in evidence articles of agreement, dated in the following January, between the Crown and the Mayor and Corn inonalty of London, whereby it was stipulated, that all the said advowsons in the county of Coleraine should be vested in the city of London ; and a patent by the King, in March 1613, incorporating the Irish Society (the plaintiffs), and granting to them, among others, the advowson of the church of Camus by name. They also gave in evidence a presentation by the Crown, on lapse, in 1619; and read entries from the First Fruits books, as secondary evidence of subsequent admissions of Clerks on presen tations in 1634 and 1672. To meet this case, the defendants gave in evidence a surrender of the 1st of August 1610 by G. M., Bishop of Derry, of all the possessions of the See of Derry to the Crown. It was not confirmed by the Dean and Chapter, nor enrolled in Ireland. Also a patent of the 3rd of August 1610, not enrolled in Ireland, by which the King (James the First) granted certain lands to the Bishop, and in which, after reciting that the advowsons in the county of Coleraine were the ancient possessions of the See of Derry, it was stated that a certain agreement had been entered into between the Bishop and the Society respecting them. Also the King's letters nominating the two subsequent Bishops of Derry, bearing date respectively the 11th of August 1610, and the 21st of December 1611, reciting and enjoining the aforesaid agreement between the Crown and the Society. Held-That, independently of distinct grounds of objection to either documents, the said surrender and patent were respectively legally admissible in evidence, on the part of the defendant, for the specified purpose of chewing an admission, on the part of James the First, that the advowson of the said church of Camus anciently belonged and appertained to the Bishopriek of Derry-being made so by the evidence given on the part of the plaintiffs, especially that of the Commission and Inquisition. Held-That the two King's letters were admissible in evidence, on the same grounds. Held-That the said patent, being plainly founded on the surrender, an acceptance of the surrender by the Kinemight reasonably be presumed. Held-That the 35 G 3, a. 39, cured the objection of the non-enrolment of the patent in Ireland. Held--That, even if the surrender were void, the patent was validated against the Crown by the 10 Car. 1, secs. 3, c. 5. Held-That the said patent was not void on the ground of the King having been deÂÂceived in his grant. Held-That collations by the Bishop's predecessors were admissible as evidence for him on the issues. Held-That the First Fruits books, the Primates' Triennial Visitation books, and the Bishops' returns to the First Fruits writs, were respectively admissible, on the parts of the defendants, as secondary evidence of lost collations by the Bishops. Semble-Continued possession by repeated collations may be evidence of original title. 194 CASES AT LAW. March in the same year, and presentations by them, or by lapse, of Alexander Spicer in 1619-of Thomas Vesey in 1634-and of Jonathan Edwards in 1672. To these counts (the defendant Lindsay having allowed judgment to go by default) the defendant pleaded several special pleas to the material allegations ; and to these the plaintiffs replied, taking issues on the seizin in fee of the Crown in 1613-on the seizin of the Society in 1619, 1634, and 1672-on the presentation by the Society of Alexander Spicer in 1619-on the presentation of the same by the Crown on lapse-on the presentation of Thomas Vesey by the Society in 1634-on the collation to the same by the Bishop on lapse-on the presentaÂÂtion to the same by the Crown on lapse-on the presentation of Jonathan Edwards by the Society in 1672-and on the present right of the plaintiffs to present. The case was tried at Bar in the Court of Common Pleas on the 9th of November 1840, and the two following days, before a Special Jury of the county of Londonderry, when exceptions were taken by the Counsel for the plaintiffs to the admissibility of the evidence which was given on the part of the defendant. The plaintiffs' Counsel, in support of their case, gave in evidence 1st. Certain letters patent, bearing date the 14th of February, in the thirty-eighth year of the reign of Henry the Third (1254), by which the King granted unto his son Prince Edward, all Ireland, with the exception of the cities of Dublin and Limerick, and the town of Athlone ; saving all crosses, and the custody of vacant churches. 2nd. Certain other letters patent, bearing date the 20th of July in the . same year (1254), granting to the same Prince Edward the cities of Dublin and Limerick, and the town and castle of Athlone, reserving all the crosses, and custody of cathedral churches and abbeys of Ireland. 3rd. A grant from Prince Edward to Lord Walter De Burgo, of all the land of Ulster, to hold to him and his heirs as freely and quietly as Hugh de Lacy* held the same, excepting the four pleas of the Crown, and the advowsons of cathedral churches. The plaintiff then proved that Lord Walter De Burgo, having died, was succeeded in his estates and property by his son Richard De Burgo, and that the said Richard De Burgo, on the death of his father, became Earl of Ulster in Ireland. 4th. The plaintiffs next gave in evidence a record of a judgment in quare impedit in the 27th year of King Edward the First (1299), in • This Hugh de Lacy held the province of Ulster as Count Palatine ; and it was by virtue of this grant that Walter De Burgo became Earl of Ulster, and had regal jurisÂÂdiction within his palatinate.-Sir John Davies' Rep. 172. Two other palatinates were created by King Henry the Second, in Ireland, at the same time as that of Ulster, Leinster, granted to Strongbow ; and Meath, granted to Hugh De Lacy the, older. CASES AT LAW. 195 which Richard De Burgo, Earl of Ulster, was plaintiff, and Galfridus Bishop of Derry was defendant. The pleadings were set out in the record, and stated the summons to answer-a plea of misnomer by the Bishop,* which was found against him--and judgment for the plaintiff on the record. 5th. Another record of a recovery in a quare impedit, in the same year, of the living of Camus, similar in every respect to the foregoing, and immediately following the enrolment thereof on the same plea roll ; and in which the Jury found as in the first. 6th. A writ of levari facias, directed to the Sheriff of the county of Meath in the same year (1299), commanding him to levy the amount of forty marks of the goods of the Bishop of Derry, for the damages assessed in the preceding recoveries of Drumachose and Camus ; and also the Sheriff's return. 7th. The Counsel for the plaintiff next gave in evidence, and proved by the contents of several public writs, returns, and records, that the said Lord Richard De Burgo died, leaving a son and heir, John De Burgo Earl of Ulster, whose son and heir was William De Burgo Earl of Ulster, who...