Page:The English Reports v1 1900.pdf/1484

This page has been proofread, but needs to be validated.

III BROWN.

ARMAGH (ARCHBISHOP OF) v. A.-G. [1728]

that the promotee is still alive; but this would be ab-[514]-solutely necessary, if the king's title determined by his death. It was therefore prayed, that the judgment of the court of King's Bench, upon which this writ of error was brought, might be affirmed.

After hearing counsel on this writ of error, a doubt arose, "Whether the writ of error returnable in the court of King's Bench in England, from the court of King's Bench in Ireland, was not abated; the same having been taken out in the lifetime of his late majesty, but not returnable till after his death?" and the counsel being directed to withdraw, the following order and judgment was made.

For that it appears to this House, that the writ of error returnable into the King's Bench in England, was abated by the demise of his said late majesty, it is hereby ordered and adjudged, by the lords spiritual and temporal in parliament assembled, that the judgment given in the court of King's Bench in England be, and is hereby reversed; and that the record be remitted.^[1]

(Jour. vol. 23. p. 333.)

↑ In consequence of this determination, the attorney-general brought a new writ of error, returnable in the court of King's Bench in England; and in Trinity term 1729, that court gave the same judgment of reversal, as they had done before. Whereupon, the archbishop and Mr. Whaley brought a new writ of error in parliament; and in support of it, the following additional arguments were offered:

As to the first point (T. Lutwyche, D. Ryder), whether Drelincourt having been instituted and inducted to the rectory of Armagh, after Dr. Vigors's promotion, and enjoyed it till his death, the king could have a right, on account of that promotion, to present another clerk to the rectory, although he had not, or did not present Drelincourt to it? it was said, that where the crown has but a temporary right, as the right by promotion is, the law books agree that the rule nullum tempus occurrit regi, will not hold they also agree, that where the king, or a common person, has a right to present to one turn only, if he suffers an incumbent to die in possession of the church, that turn is lost, and he cannot present afterwards. Now it is stated in both the pleas, that Drelincourt was at least instituted and inducted to the church of Armagh, after Dr. Vigors's promotion, and that he died possessed of it; to which the attorney-general has given no answer. And that which the plaintiffs in error insist upon is, that whether Drelincourt was presented or no, yet his institution, induction, and enjoyment made him incumbent; and that by his death an end was put to that turn, and consequently to the king's right. That institution and induction will make a man incumbent, appears, because a church never lapses after a clerk is once instituted to it; and if an incumbent of a church, of the value of £8 per ann. or upwards, be instituted and inducted, or instituted only, to a second church without dispensation, the first church immediately becomes void by cession, whether he was presented to the second or no, That this is evident from the known practice of all the courts of common law, where when a clergyman sues for any right belonging to his church, they require no more of him to prove himself incumbent, but to shew that he has been instituted and inducted; these being the proper tokens and evidences, by which he is known to the parishioners and others: and therefore the law judges the church full according to these, and not according to the presentation, which is a thing secret and hid from the parishioners and every one else, except the bishop, and the persons presenting and presented; and were the law otherwise, it is easy to see what absurdities and inconveniences would unavoidably follow.—But it is objected on behalf of the defendant, that Green's case, 6 Co. 29, and Hunston's case, 2 Croke 252, are authorities in point to shew, that institution and induction, without presentation, are merely void against a lawful patron. The first of these cases, however, manifestly proves, not that they are merely void even as to the patron, but only that they are void to one purpose, namely, that he may still present to the church, without being put to his writ of right of advowson, or his quare impedit; which is perfectly consistent with the church being full to all other purposes. And so this is explained by Gawdy's case, Hob. 302, where such clerk is said to be a full incumbent, and may sue for tithes, and the lapse is stopped by him and the like is laid down in several other cases. As to Hunston's case, it relates to an appropriate church, to which the bishop had [515] no right to institute, and so makes nothing to the present point; there it is true that institution and induction, without presentation, are merely void, i.e. void not only to the patron or appropriator, but to the parishioners also, as appears by that case.

1468

[3BroPC507-1] In consequence of this determination, the attorney-general brought a new writ of error, returnable in the court of King's Bench in England; and in Trinity term 1729, that court gave the same judgment of reversal, as they had done before. Whereupon, the archbishop and Mr. Whaley brought a new writ of error in parliament; and in support of it, the following additional arguments were offered:

As to the first point (T. Lutwyche, D. Ryder), whether Drelincourt having been instituted and inducted to the rectory of Armagh, after Dr. Vigors's promotion, and enjoyed it till his death, the king could have a right, on account of that promotion, to present another clerk to the rectory, although he had not, or did not present Drelincourt to it? it was said, that where the crown has but a temporary right, as the right by promotion is, the law books agree that the rule nullum tempus occurrit regi, will not hold they also agree, that where the king, or a common person, has a right to present to one turn only, if he suffers an incumbent to die in possession of the church, that turn is lost, and he cannot present afterwards. Now it is stated in both the pleas, that Drelincourt was at least instituted and inducted to the church of Armagh, after Dr. Vigors's promotion, and that he died possessed of it; to which the attorney-general has given no answer. And that which the plaintiffs in error insist upon is, that whether Drelincourt was presented or no, yet his institution, induction, and enjoyment made him incumbent; and that by his death an end was put to that turn, and consequently to the king's right. That institution and induction will make a man incumbent, appears, because a church never lapses after a clerk is once instituted to it; and if an incumbent of a church, of the value of £8 per ann. or upwards, be instituted and inducted, or instituted only, to a second church without dispensation, the first church immediately becomes void by cession, whether he was presented to the second or no, That this is evident from the known practice of all the courts of common law, where when a clergyman sues for any right belonging to his church, they require no more of him to prove himself incumbent, but to shew that he has been instituted and inducted; these being the proper tokens and evidences, by which he is known to the parishioners and others: and therefore the law judges the church full according to these, and not according to the presentation, which is a thing secret and hid from the parishioners and every one else, except the bishop, and the persons presenting and presented; and were the law otherwise, it is easy to see what absurdities and inconveniences would unavoidably follow.—But it is objected on behalf of the defendant, that Green's case, 6 Co. 29, and Hunston's case, 2 Croke 252, are authorities in point to shew, that institution and induction, without presentation, are merely void against a lawful patron. The first of these cases, however, manifestly proves, not that they are merely void even as to the patron, but only that they are void to one purpose, namely, that he may still present to the church, without being put to his writ of right of advowson, or his quare impedit; which is perfectly consistent with the church being full to all other purposes. And so this is explained by Gawdy's case, Hob. 302, where such clerk is said to be a full incumbent, and may sue for tithes, and the lapse is stopped by him and the like is laid down in several other cases. As to Hunston's case, it relates to an appropriate church, to which the bishop had [515] no right to institute, and so makes nothing to the present point; there it is true that institution and induction, without presentation, are merely void, i.e. void not only to the patron or appropriator, but to the parishioners also, as appears by that case.

[1]