The Honorable THE IRISH SOCIETY of LONDON, in Error, v THE LORD BISHOP of DERRY and RAPHOR, and another

• Jurisdiction: Ireland
• Judgment Date: 23 June 1846
• Date: 23 June 1846
• Court: House of Lords (Ireland)

H.of Lords.

The Honorable THE IRISH SOCIETY OF LONDON, in Error,

and

THE LORD BISHOP OF DERRY AND RAPHOR, and another.

Duchy of Lancaster case 1 Plowd. 213.

The Saddlers' case 4 Co. 54.

Fulmerston v. Steward 1 Plowd. 102.

Wroth's case Dyer, 167.

Carteret v. Petty 2 swanst. 323.

Bishop of Salisbury's case 10 Co. 586.

Holland v. Fisher Bridgm. 181.

Legat's case 10 Co. 109.

Sawyer v. EastENR Lane, 108.

Middleton v. MeltonENR 10 B. & C. 317.

CASES AT LAW. 467 1846. H. of Lords. %Dot tortic The Honorable THE IRISH SOCIETY OF LONDON, in Error, V. THE LORD BISHOP OF DERRY AND RAPHOE, and another. (In Error from the Court of Exchequer Chamber in Ireland.) June 22, Tins was an action of quare impedit, brought in the Court of In an action of pare inz Common Pleas in Ireland, by the Irish Society of London, against pedit for the the Bishop of Derry, 'and the Rev. Thomas Lindsay, to recover the recovery of the advowson of advowson of the living of Camus, situate in the diocese of Derry, Camus, in the county of Lon- and the county of Londonderry. The declaration contained eight donderry, in counts, alleging seisin in fee in the Crown in 1613-a grant of the which the Bishop of same to the Society by charter on the 29th of March in the same Derry was the year-and presentations by them in 1619, 1634, and 1672. defendant, the principal To this declaration (the defendant Lindsay having allowed judg- issues being on the seisin of meat to go by default), the Bishop pleaded several special pleas to the King James the First, and the seisin and possession of the plaintiffs ; the plaintiffs gave in evidence (among other things) a Royal Commission, directed to the Bishop of Derry (among others), and an inquisition taken at Limavady, in obedience thereto, on the 30th of August 1609, finding that the patronage of all the advowsons in the county of Coleraine (afterwards Londonderry), of which Camus was one, did of right belong to the King, in right of his Crown. They next gave in evidence articles of agreement, dated in the following January, between the Lords of the Privy Council of King James the First, and the Mayor and Commonalty of the city of London, whereby it was stipulated, that the city of London should have the patronage of all the churches, as well within the city of Derry and town of Coleraine, as in all the lands to be undertaken by them ; and a patent by the King, dated 29th of March 1613, incorporating the Irish Society (the plaintiffs), and granting to them (inter alia) the advowson of Camus. The defendant, in support of his case, offered in evidence a surrender of the 1st of August 1610 (not confirmed by the Dean and Chapter, and not enrolled in Ireland) by George Montgomery, Bishop of Derry, to King James the First, of the rectory of Derry, and also all parsonages, advowsons, &c., within the diocese of Derry, and county of Coleraine, and the ferry of Derry, to be disposed of at the King's good will and pleasure. Also, a patent of the 3rd of August 1610, enrolled in England but not in Ireland, to Bishop Montgomery, by which King James the First granted to the said Bishop and his successors for ever, several denominations of lands, including lands in Camus, and the advowsons, &c., to them, and the said bishopric belonging or apper- taining, excepting certain advowsons therein expressly excepted, and nine out of fifteen advowsons which, by mutual consent, were to be transferred from the Bishop to the Society ; and after a recital, that, " whereas we are informed, that there are in the county of Coleraine, and within the said diocese of Derry, fifteen advowsons of churches, &c., anciently belonging and appertaining to the said bishopric of Derry ;" and also of the agreement that the Bishop was to have six, and the Society nine, of them-there was a provision for the election and appropriation of the said advowsons by, and to, their respective patrons. The said patent also contained' a covenant on 468 CASES AT LAW. material allegations ; and the plaintiffs having replied, taking issue on the seisin in fee of the Crown in 1613-on the seisin of the Society in 1619, 1634, and 1672-on the several presentations by the Society in these years-and on the present right of the plaintiffs to present-- the case came on for trial 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 jury found for the defendant on all the issues. The bill of exceptions came on for argument before the Court of Exchequer Chamber* in Ireland in Easter Term 1841, when the exceptions were overruled, and judgment entered up for the defendant. The plaintiffs gave many documents in evidence in support of their title ; but it is only necessary to state the following :- First.-A Royal Commission, bearing date the 21st of July 1609, directed to certain persons in Ireland named therein, including George Montgomery, Bishop of Derry, and enrolled in Ireland. It recited the escheat of lands in several counties (including the county of Coleraine, afterwards Londonderry) in the province of Ulster, the part of the Bishop, for further assurance to the King and his successors, of the aforesaid glebe lands, ferry, and water of Derry, and the premises excepted. Also, two Kings' letters, under the privy seal, nominating and discharging from the First Fruits the two subsequent Bishops of Derry, bearing date respectively the 11th of August 1610, and the 21st of December 1611, reciting and enjoining the performÂance of the aforesaid agreement between the Crown and the Society. Held, that notwithstanding the said articles of agreement of January 1609, the said patent and the surrender, as connected with it, was admissible as evidence of an act of the Crown, at variance and inconsistent with the finding of the inquisition of Limavady, and leading to the inference, that the Crown had no prior title of its own to all the advowsons in Coleraine. Semble-That the said surrender and patent were some evidence of an=admission that Camus anciently belonged to the bishopric. Held-That the two letters under the privy seal were admissible on the same ground as the letters patent, and as recognising the bargain with the Bishop therein mentioned. Held, that the 35 G. 3, c. 39, cured the objection of the patent not having been enrolled in Ireland. Held, that the Bishops' returns to First Fruits writs were admissible as secondary evidence of collations, by the Bishops and their successors, to the living of Camus ; and part of the same being receivable in evidence, the defendant was entitled to have the whole submitted to the jury, as being one official act. The circumstance of the returns having been made by the Bishop, or his predecessors, only affected the value, and not the admisibility of the evidence. Held, that the Primates' Triennial Visitation Books, and entries of the Bishops' returns in the First Fruits Books, were admissible, on the part of the defendant, as secondary evidence of the collations by the Bishops. Held, that original collations by the Bishop were admissible, as evidence of posÂsession of the advowson. * Vide 4 Ir. Law Rep.-217. CASES AT LAW. 469 and empowered the Commissioners to inquire what castles, manors, tenements, advowsons, &c., in the said counties, had escheated, or ought to escheat, and come to the hands and possession of any of the Kings or Queens of England, by any means whatsoever ; and to make an exact survey thereof. It also empowered them to decide on all controversies concerning the said lands and hereditaments. Second.-An inquisition held at Limavady on the 30th of August 1609, under the authority of the Crown, and enrolled in Ireland. It recited the aforesaid commission, set out the names of the persons, and then proceeded to state-that the jurors had found on oath, that the late Bishop of Derry, before, and until the statute of O'Neill's Attainder, in the eleventh year of the reign of Elizabeth, was seized in right of his bishopric of several yearly rents, customs, and refections, issued out of certain specified herenagh lands, including the herenagh lands of Camus. It further found, on the jurors' oaths, that the right of presentation and advowson of churches within the county of Coleraine, did of right belong and appertain to the King's Majesty in right of his Imperial Crown ; but that the Bishop might, and did, until the 11th of Elizabeth, place a clerk in any parsonage or vicarage, being void, until the King presented or bestowed the advowson on the Bishop, or some other person. This inquisition was signed by George Montgomery, Bishop of Derry, among others of the Commissioners. Third.-Certain articles of agreement, bearing date the 28th of January 1609,* enrolled in Ireland, between the Lords of the Privy Council of King James the First, on the King's behalf, and the mayor and commonalty of the city of London, concerning the plantation of Ulster, the principal parfof which had lately escheated to the Crown, by the attainder of sundry rebels therein. By the first article, it was agreed that the city of London should expend £2000 on the intended plantation ; and by the ninth article, that they should have the patronage of all the churches, as well within the city of LondonÂderry and- town of Coleraine, as in all the lands to be undertaken by them. Fourth.-Letters patent of King James the First, bearing date the 29th of March 1613, enrolled in...