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DUBLIN (DEAN AND CHAPTER OF) v. R. [1724]
I BROWN.

[73] Case 7.—The Dean and Chapter of Dublin,—Plaintiffs; The King,—Defendant (in Error) [21st April 1724].

[Mew's Dig. v. 204; 1 Will. IV. c. 21; 46 & 47 Vict. c. 49, s. 3; Short and Mellor, Cr. O. Proc. p. 63, note (2); Short on C.O.R. r. 136; R.S.C. 1883, O. 53. Inform. Shortt, p. 414.]
[Since the statute 9 Ann, c. 20. (s. 2) which allows special pleadings to a mandamus, it seems that a writ of error lies of a judgment thereon, because it is in the nature of an action, and costs are given by the statute for that side which prevails; but upon the award of a peremptory mandamus, a writ of error will not lie, there being no plea to it, and therefore not in the nature of a judgment.]

1 Wms. 348. Viner, vol. 9. p. 475. ca. 13. 481. ca. 15.

The Dean and Chapter having, for the reasons after mentioned, refused to admit Robert Dowgate, Clerk, to a stall in the choir, and a place and vote in the chapter of the said cathedral church, to which he claimed a right, as Archdeacon of Dublin; a writ of mandamus issued out of the Court of King's Bench in Ireland, in Michaelmas term 1716, directed to the said Dean and Chapter, setting forth,

That the said Robert Dowgate was, by William, Archbishop of Dublin, the true and undoubted patron of the archdeaconry of Dublin, duly collated, instituted, and inducted to the said archdeaconry; that all Archdeacons of Dublin, by letters patent of King Henry VIII. granted to the Dean and Chapter of the cathedral church of the Holy Trinity, Dublin, and by ancient custom hitherto used in the said church, had enjoyed, and ought to enjoy, a stall in the choir, and a vote and place in all chapter acts of the said church, according to the honour and prerogative of their dignity.—But, that the said Dean and Chapter had unjustly denied to the said Robert Dowgate, not only a stall in the choir, but also a vote and place in the chapter, in all chapter acts of the said church, in contempt of the King, and to the said Robert Dowgate's great damage, &c. And therefore commanding the said Dean and Chapter, that immediately after the receipt or sight of the said writ, they should receive and admit the said Robert Dowgate to the stall of the Archdeacon of Dublin in the choir, and to a vote and place in the chapter, in all chapter acts of the said church of the Holy Trinity, Dublin, or shew cause to the contrary, &c.

The Dean and Chapter not making any return to this mandamus, the said Court of King's Bench, in the same term, issued an alias mandamus, directed to the said Dean and Chapter, returnable on Tuesday next, after fifteen days of St. Martin. But no return being made to this second mandamus, the Court, in Hilary term following, issued a pluries mandamus, returnable on Wednesday next, after the morrow of the Purification of the blessed Virgin Mary.

To this third writ, the Dean and Chapter made the following return, viz.

That the said King Henry VIII. by his letters patent under the great seal of Ireland, dated at Dublin the 10th [74] of May, in the 33d year of his reign, did give and grant to the Dean and Chapter of the said cathedral church of the Holy Trinity, Dublin, and their successors, (among other things) that the said Dean and Chapter, and their successors for ever, might constitute and ordain statutes and ordinances, for the good government of the said church, and abrogate and change the same, and make others in their place; and that among the statutes constituted by the said Dean and Chapter, for the good government of the said church, it is ordained, that every person, who ought to have a stall in the choir, and a vote and place in the chapter of the said church, shall, before he is admitted to have a stall in the choir, and a vote and place in the chapter of the said church, take his corporal oath, before the said Dean and Chapter for the time being, to yield canonical obedience to the Dean of the said church for the time being, and his successors canonically entering, and observe the statutes and lawful customs of the said church and chapter, and the secrets of the said chapter shall secret keep. And further, that the said Robert Dowgate, on the 29th of November 1715, before the said Dean and Chapter, who were then in the Chapter-house in chapter assembled, and were ready and willing to admit the said Robert Dowgate to the stall of the Archdeacon

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