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in the choir of the cathedral church of St. Patrick, Dublin, within his diocese of Dublin, upon the 21st of April 1707, according to law, and according to the manner and custom aforesaid; and that the plaintiff, being Prebendary of the said prebend of St. John, and Incumbent of the said rectory and church of St. John, within the diocese of Dublin, and having the actual cure of souls [202] in the said parish, was afterwards, on the same 26th day of March 1707, duly summoned and cited to appear before the Archbishop or his Vicar-general, in the cathedral church of St. Patrick, Dublin, on the said 21st of April then next, to undergo the canonical visitation of the said Archbishop.—The defendant averred, that he did hold the said visitation accordingly; notwithstanding which, the plaintiff did not appear at the said synod or visitation; whereupon the Archbishop, in the said visitation then and there held and continued, till the 23d of April then next, did the same day, in due form of law, declare the plaintiff contumacious; and for his penalty of contumacy, did in due form of law, by his sentence, suspend the said plaintiff ab officio et beneficio, in the said parish church of St. John, Dublin, for his contempt, as it was lawful for him to do.

To this plea the plaintiff demurred, and shewed for cause, that the defendant had answered the seisin of King Henry VIII. by way of protestation only; that no mention was made in the plea of the patents of Edward VI. and Philip and Mary; that the letters patent of King James I. were recited verbatim, whereas oyer ought to have been demanded of them; that such part of the statute 33 Henry VIII. as was set out in the plea, was repealed 3 and 4 Philip and Mary, and never revived; that the plea, as to this, was argumentative; and that the plea was repugnant and inconsistent, traversing matters not traversable, and not answering the matter of the declaration.

The defendant having joined in demurrer, the Court of Common Pleas in Ireland, after several arguments, gave judgment for the defendant; and upon a writ of error, first in the Queen's Bench there, and afterwards in the Court of Queen's Bench in England, this judgment was affirmed.

Whereupon the plaintiff brought his writ of error in parliament, insisting (E. Northey, T. Lutwyche), that the judgment was erroneous, and that the Archbishop, in this case, had not a power to visit the plaintiff; and if he had, yet he could not do it in the manner he had done. It was admitted, that the rectory of St. John was appropriated to the priory; and as the law supposes this to be done with the consent of the Ordinary, he had therefore divested himself of his right of visitation of the rectors of the church. Nor was it disputed, but that this rectory came to the Crown, by the statutes for the dissolution of monasteries; so that King Henry VIII. being seised in fee thereof, had a power to grant it to whom he pleased; and therefore it ought to be looked upon as a lay fee, in the same manner as if he had granted the Dean and Chapter any other lands or livings in his gift, that did not before belong to the priory, which made them donatives; and so the Archbishop could not hinder them, or the plaintiff in their right, from receiving the profits thereof. That the prebendaries being at first established by King James I. he was to be taken as the founder of them, and so they were donatives, not coming in by any application to the Bishop, and therefore not visitable by him. That it was very considerable in this case, who must be taken upon the [203] present record, to be the Rector and Incumbent of this church; the rectory was first granted to the Dean and Chapter by King Henry VIII. and afterwards by the charter of King James I. it was likewise granted to the Dean and Chapter; but in the same charter it was directed that the Prebend of St. John, and his successors, should receive the profits of this rectory for his allotment, but with a power to the Dean and Chapter to allot it to any other of the body; so that, in law, the rectory belonged to the Dean and Chapter, and the plaintiff could only be looked upon as their Curate; and consequently, if punishable for his contumacy, it ought to be by other ecclesiastical censures, and not by suspension ab officio et beneficio. Admitting it ought to be taken, that this rectory was appropriated to the Prebend; yet it must be agreed on the other hand, that the Archbishop could not deprive the Prebendary of the rectory, and leave him still Prebendary; and if so, it was conceived. he could not suspend him from it; suspension being a temporary deprivation, which it is in the Archbishop's power to make total, by continuing the suspension as long as he thinks fit. If therefore the plaintiff was at all visitable in this case, he ought to be so as Prebendary, and not as Incumbent