Page:The English Reports v1 1900.pdf/887

the intent of the private act of parliament, for dividing the parish of St. Michan into three parishes, was to provide only for the ease and good of the parishioners; it appearing by the recitals of the act, that by the increase of buildings in the old parish, the cure was become too great for one single Minister, and the church not sufficient for so great a number of inhabitants; but it was never intended to make any alteration in the right of the Dean and Chapter, in whose gift the church was, or in their manner of giving it, which, before the act, was always without presentation to, or institution by the Archbishop. That there was an express clause in the act, that the presentation to the three churches, viz. the old, and the two new ones, should belong to the Dean and Chapter, and their successors, for ever; in such manner, as the nomination or presentation to the rectory of the old church did belong, and not otherwise; and the same act also provided, that the new Rectors should be subject to no other power of the Ordinary, than the old Rectors were; and therefore, as the Rectors were not presentative before, they ought not to be so now; nor was it now pretended, that any presentation was necessary to the old church, and yet this was one of the three churches mentioned in the above clause of the act. As to the objection, that the lessor of the plaintiff had not qualified himself, by reading prayers, etc. the defendant in the ejectment (though it did not appear that he had any title) endeavoured to take advantage of his own wrong, by hindering the lessor of the plaintiff from reading prayers, and keeping him by force and violence out of the church, which made it impossible for him to perform those duties. And therefore it was hoped, that the judgment given in the Court of Common Pleas in Ireland, would appear to have been well given; and consequently, that the judgments given contrary thereto, would be reversed.

On the other side it was contended (N. Lechmere, R. Raymond), that if any of the above four points were with the defendant, judgment ought to be affirmed; for, in that case, the plaintiff's lessor had clearly no title upon which he could recover. Now, the first of these points, namely, that the rectory of St. Paul was presentative, and that without a presentation to, and admission and institution by the Archbishop, the lessor of the plaintiff could not be entitled to the rectory in question, was apprehended to be so clear, that it was not necessary to trouble their Lordships with any thing upon the three other points; though even as to them, the defendant insisted, that the law was in his favour. For the act of parliament, after having divided the old parish of St. Michan into three several parishes, and having severed those of St. Paul and St. Mary from the third, which still continued annexed to the prebendary, [178] enacted, that the right of patronage of the said rectories, and of presentation to the three churches, should belong to the Dean and Chapter, etc. that the word presentation is a known term of the law, and when spoken of a benefice with cure of souls, as in this case, imports the patron's presenting his clerk to the Ordinary, to be admitted and instituted; and that the subsequent relative words, viz. in such manner as the nomination or presentation to the rectory of the old parish of St. Michan did belong to them, and not otherwise, (in which words, the very act distinguished between a nomination and presentation,) referred only to the right which the Dean and Chapter had of putting in an incumbent, but not to the manner in which it was to be done. That before this act, a clergyman, being appointed Prebendary of St. Michan, became Rector of the parish church; but since the act, the Prebendary was only to have one of the three churches, viz. the church of St. Michan; and therefore, by now electing and appointing a Prebendary, it was impossible this church of St. Paul could be filled; and yet, in that manner, before the act, the nomination or presentation to the said church belonged to the Dean and Chapter.

After hearing counsel on this writ of error, it was ordered and adjudged, that the judgment given in the Court of King's Bench in England, in affirmance of a judgment in the Court of King's Bench in Ireland, whereby a judgment for the plaintiff in ejectment in the Court of Common Pleas in that kingdom was reversed, should be affirmed; and that the said writ of error, with the transcript of the record, should be remitted to the Court of King's Bench in England, to the end the said Charles Garr might have execution of the said judgments, as if no such writ of error had been brought into the house. (Jour. vol. 20. p. 610.)