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The documents were produced by Anthony Dopping, who deposed that he was a descendant of Anthony Dopping, Bishop of Meath, and that he had in his possession several papers which were handed to him as coming from Lowton House, where the Dopping family papers were kept, that Lowton House is the family mansion of the Doppings, and that the papers in his possession were handed to him by John Darcy, who is a relation of the Dopping family, and that the two documents were handed to him among the said papers by John Darcy at a Major Sirr's, and that he never saw the said two documents or any of them at Lowton House. John Darcy deposed that he handed a parcel of papers to Anthony Dopping, the last witness, and that he got the said parcel of papers from Sir William Betham. Sir William Betham deposed that he found а parcel of papers Lowton House among other papers, and that the Reverend Mr. Sirr was with him, that he found the said parcel of papers in a room with other papers relating to the see of Meath, and that he handed the said parcel of papers to the said Mr. Sirr; that Lowton House belonged to or is inhabited by a Mrs. Dopping, a middle aged lady, and that he put no mark on the said parcel of papers, but that he took copies of them; and the two documents produced were among them; that at the time of finding the said parcel of papers he found several visitation books of the diocese of Meath, particularly one of the year 1616. By the [348] evidence of the Rev. G. Brabazon, the registrar of the diocese of Meath, it appeared that there was no registry of ecclesiastical or other records of the diocese of Meath (except one old roll) anterior to the year 1717, and that no visitation-books of the diocese, or entries of presentations, admissions, institutions, or collations to ecclesiastical benefices within the diocese, or other papers or records relative to the diocese, or the benefices within the same, were preserved or to be found in the said registry office, relating to any period anterior to the year 1717.

To the admission of these documents (the grant and case) in evidence and the directions of the Court exceptions were taken on the part of the Defendant, the substance of which is set forth in the errors assigned in the Exchequer Chamber, and in parliament as after stated.

The Defendants below having relied upon the grant of King Edward IV. to William Sherwood, Bishop of Meath, stated, in the thirteenth plea of the Defendant the Bishop, the Plaintiff below (protesting against the validity of said alleged grant and further insisting that it had not in a single instance been acted upon) relied upon its total extinction, (if it ever had valid existence,) by the act of resumption of the tenth of King Henry VII., which was given in evidence on the part of the Plaintiff below; and by which, for the reasons and considerations therein contained, it was ordained and enacted, and established by the authority of the then parliament," that there be resumed, seized, and taken unto the said King's hands, amongst other things, all manors, lordships, castles, advowsons of churches, free chapels, lands, tenements, rents, services, fee farms, and all other [349] manner of profits, hereditaments, and commodities, whereof the said sovereign lord, or any of his noble progenitors, kings of England, was at any time seised in fee simple or fee tail, from the last day of the reign of King Edward II. to the passing of the said act; and by the same authority all manner of feoffments, gifts, intails, grants, leases for term of lives, or term of years, releases, confirmations, and reversions, of all and every of the aforesaid honours, manors, lordships, and of all others as before specified, or of any parcel of them, as well by authority of parliament, as by any letters patent made under the Great Seal of England or Ireland, to any person or persons, or by whatsoever name or names, they may be named jointly or severally, from the said day to be resumed, revoked, annulled, and made void, and of none effect in law.

The evidence on the part of the Defendants below (the now Plaintiffs in error) consisted of the following documents.

An attested copy of a king's letter or mandate, bearing date the 8th day of July, 1354, in the twenty-eighth year of the reign of King Edward III. whereby, after reciting that the judgment against Roger De Mortimer, Earl of March, had been annulled as erroneous, the said King Edward III. commanded that the rolls' memoranda and muniments, which belonged to the said Earl, and which were in the treasury of the Exchequer, should be delivered over by the treasurer and barons of the Exchequer to Roger de Mortimer, then Earl of March, cousin and heir of the said late

Earl, or his attorney in that behalf; to which letter a memorandum is attached, of the delivery of certain rolls pursuant thereto, to the treasurer of the said Earl.

[350] Also an attested copy of letters patent of King Henry V. dated 9th March, in the second year of his reign, containing certain recitals, and granting certain privileges to Roger, Earl of March.

Also an attested copy of the alleged grant by King Edward IV., to Bishop Sherwood, as set forth in the thirteenth plea of the Defendant below, the Bishop of Meath. And a parchment roll purporting to be a proxy roll of the diocese of Meath, and to be written in the year 1518.

The Defendants below also gave in evidence an entry in the visitation-book of the diocese of Armagh for the year 1664, stating that William Barry exhibited collation of the rectory and vicarage of Killucan, otherwise Rathweir, granted by Anthony, bishop of Meath, dated 13th January, 1642, and exhibited mandate to induct into the aforesaid rectory and vicarage, by Henry, Bishop of Meath, dated 16th February, 1660; and another entry from the visitation-book of the diocese of Armagh for the year 1745, in these words: Rathweir or Killucan rectory and vicarage, collative, rector and vicar, Peter Warburton:" also the collation of the Reverend Anthony Dopping, by Anthony Dopping, bishop of Meath; and the collation of the Reverend Henry Wynne, the late incumbent of the said benefice.

The Defendants below further gave in evidence an attested copy of a fine, bearing date on the morrow of the Holy Trinity, in the first year of the reign of King James II., purporting to be a fine levied by William, Earl of Clanricarde, and Helen, Countess of Clanricarde, his wife, to John Brown, Gerald Dillon, and Anthony Mulledy, Esquires, of (amongst other things) the advowson of Killucan.

[351] This evidence was the subject of an exception on the part of the Defendant in error, who relied upon the inadmissibility of the said alleged fine upon any of the issues, knit upon the record between the parties, as also upon its non-operation, to bar his the Marquis of Winchester's claim to the advowson, even supposing it to have been admissible in evidence.

The Defendant also gave evidence of collations made in some instances by the Bishop of Meath, which the Plaintiff offered evidence to explain.*

Upon the foregoing pleadings and proofs, the special jury, empanelled to try the issues joined between the parties, found a verdict upon all the issues in favour of the Plaintiff below.

The Defendants below took a bill of exceptions to the charges and direction of the Court to the Jury; and judgment thereon having been given for the Plaintiff below, the Defendants below brought their writ of error in the Irish Court of Exchequer Chamber, and assigned for errors the same causes as constituted their exceptions in the Court of Common Pleas.

The substance of the errors assigned was, that the Court of Common Pleas ought not to have allowed the said two documents produced from Lowton House to have been given in evidence.

That the court ought to have told the jury, that if they believed that King Edward IV. made the grant of the advowson to Bishop Sherwood, and that he was seised of the manor at the time of making the grant, in such case the grant was a [352] good and valid grant at the time of making thereof, and had rendered the advowson for ever disappendant and in gross, and that it never again became appendant to the said manor, and did not pass to the said John King by the letters patent of the first year of King James I.

That the Court ought not to have told the jury, that although they should believe that King Edward IV. was seised of the manor, and had made such grant of the advowson to the said Bishop Sherwood, yet that the said advowson had again become appendant to the manor by force of the act of the 10th of King Henry VII.

That the Court ought to have told the jury, that the grant of the advowson by King Edward IV. to Bishop Sherwood was not resumed, revoked, or avoided by the act of the 10th of King Henry VII., and that the grant, notwithstanding the said act, or any other act or matter, was and still is a good, valid, and subsisting grant. That the Court ought not to have told the jury, that the grant to Bishop Sherwood

* See the bill of exceptions in the appendix to the cases in the House of Lords, the errors assigned, and the argument, post.

became, and was, on the passing of the act of the 10th of Henry VII. resumed, revoked, avoided, and made of none effect.

That the Court should have told the jury, that if they believed that King Edward IV. was seised of the manor and advowson as of his private property, and, being so seised, had made the grant, that the same was not resumed, revoked, or avoided by the act of the 10th of Henry VII.

That the Court told the jury, there was no evidence that King Edward IV. was seised of the advowson as of his private estate.

That the Court refused to direct the jury, that [353] by the effect and operation of the fine levied by William, seventh Earl of Clanricarde and Helen his wife, to John Brown, Gerald Dillon, and Antony Mulledy, all the estate and interest of the said Earl William and his heirs, of and in the said advowson, was conveyed and passed away from the said Earl and his heirs; and that the said Earl, and his heirs, and the Plaintiff below, were estopped, barred, and concluded thereby from having, acquiring, claiming, or alleging any estate term, interest, or possession, of or in said advowson.

That the Court told the jury, that the fine was not a bar to the Plaintiffs' right to recover on the issues.

And-That the Court refused to tell the jury, that the fine was sufficient evidence to show that the Plaintiff was not, and had not been, possessed of the said advowson, or any term therein.

The Defendant in error having filed a joinder to the errors so assigned, the case was argued on several days by counsel for both parties respectively, in the Court of Exchequer Chamber in Ireland, whereupon the judgment obtained by the Defendant in error, in the Court of Common Pleas, was affirmed.

From this judgment a writ of error was brought in parliament where the same errors were assigned.

For the Plaintiff in error, the Attorney General and Sir William Follett (in chief and in reply),

The title of the Plaintiff in this case stands upon the allegation of one grant and one presentation and admission under it, supported by documents which have been improperly admitted in evidence: whereas, upon the face of this record, at least from the year 1626, this living has continually been filled by collations from the Bishop of Meath, [354] and it is only in the year 1828, two centuries after the time when we can trace the rights of the Bishops of Meath, that it has been called in question. That appears on the face of these proceedings. If we could travel out of the record into matters which have since been investigated, we could shew that they have collated long prior to that date.

It appears that in the year 1626, the very person upon whose presentation they count, namely, Donnellan, was collated by the Bishop of Meath. It appears that in 1642, William Bury, who they say was presented by a grant of the Earl of Clanricarde, was collated by the Bishop of Meath. It appears that in 1695, Anthony Dopping was collated by the Bishop of Meath. In 1741, Peter Warburton was presented, not by the Earl of Clanricarde, but by the King, in consequence of a vacancy created by that Anthony Dopping being made a bishop. In 1784, Henry Logan was collated by the Bishop of Meath, and he held it down to the year 1828, when the present possessor was collated by the Bishop of Meath. To get rid of the effects of these collations, it is suggested that it is the duty of a bishop to collate to the benefice in the event of a lapse; but how do they account for the Bishop of Meath collating in 1626, and continuing to do so without any opposition, the individuals so collated continuing to hold the living to their death, and upon their deaths the then bishop again collating to that living? the strongest proof of the continued exercise of the right.

Against such proof a verdict has been obtained by the admission of documents not duly authenticated and misdirection of the Court. Those docu-[355]-ments were, in truth, the only material evidence in the cause, and having been erroneously submitted to the jury, it must be inferred that they produced the verdict; and, therefore, the question at issue ought to be sent to a new trial. What is that issue? The Plaintiff's present to the living under the title of the family of Clanricarde. They count upon the presentation of a person of the name of Donnellan in 1626. Since that year there has been no exercise of the right by the family. But inde

pendently of the unauthenticated documents, how do they make out their title? It is admitted that by grant of Edward IV. to the Bishop of Meath of the advowson it had been severed from the manor, and then became an advowson in gross. They produce a grant to John King by letters patent of King James I., bearing date at Dublin the 30th October in the first year of his reign. In this grant nothing is said about the advowson of this church. It is a grant of the manor of Rathweir, with all the rights and advowsons belonging or appertaining to the manor. King James I. does not profess to grant to John King the advowson to this church; he gives him the manor of Rathweir; and the only mode in which the Earl of Clanricarde can set up any title under this grant is by shewing that when King James executed the letters patent, this advowson was appendant to the manor of Rathweir, that is the first step in their title.

In the fourth year of the reign of King James I., a fine was levied by John King and Catherine his wife to Richard Burke, fourth Earl of Clanricarde, of the manor and lordship of Rathweir, with all advowsons, rectories, or rights of patronage, and other appurtenances to the said manor belonging, [356] so that John King also passes only the manor with the advowsons belonging to it. Then a king's letter bearing date the 8th day of April, in the 6th year of King James I., directs the acceptance from Richard, fourth Earl of Clanricarde, of a surrender of all his manors, and temporal and spiritual possessions and hereditaments in Ireland, held by patent or other instruments; that a new grant of the same should be made by letters patent; and that a commission should issue under the great seal of Ireland to enquire as to the same and by an inquisition taken at Athlone on the 4th of May, 1609, it is found that the then present earl of Clanricarde and his ancestors were lawfully seised in his demesne as of fee of the manor of Rathweir, with all appurtenances belonging to the same by purchase from John King, as appeared by deed of bargain and sale, dated 1st January, 1606, specifying among other things the said manor, and all advowsons of churches and vicarages in any manner belonging to the same; so that here again there is nothing said about the advowson of this church; no advowson is mentioned by name, but simply the manor with its appurtenances. Nor is this advowson mentioned expressly in any of the conveyances to the Clanricarde family. Such is the title under which they claim.

The question is, whether the advowson of the church of Killucan was at the time of the grant by King James, appended to the manor; of this there is no evidence, except in the two documents mentioned in the bill of exceptions. There is a deed dated in 1702, which recites that Richard, late Earl of Clanricarde, by indenture, dated 6th April, 1702, and made between the said Richard and John [357] Morgan the elder conveyed unto the said John Morgan, among others, the advowson or right of patronage of the rectory of Rathweir and Killucan. That is the only deed in which the advowson is mentioned by name, and it destroys their title.

The first plea of the Bishop, after stating that he is seised of the advowson in gross, in right of the see, traverses the appendancy of the advowson to the manor of Rathweir, there is therefore a distinct issue raised on this fact. The next material plea is a denial that Richard the fourth Earl was seised of the manor with the advowson appendant; and there is a denial that Edward Donnellan was admitted and instituted on the presentation of Richard the fourth earl.

The Plaintiffs, to prove the facts, offer a deed which they state to have been found in Lowton House; that deed is not pretended to be an act of the fourth Earl of Clanricarde whose seisin is traversed, or any presentation of Edward Donnellan, whose alleged presentation is traversed. It has been contended that we have no right to offer in evidence a certain fine, because it was not properly admissible upon any of the issues raised. Now upon what issue is the deed of the fifth Earl of Clanricarde or the presentation of Barry, admissible evidence, unless it be upon the general one to prove the title of the Plaintiff? Is it because the fifth Earl of Clanricarde granted the next presentation to Donnellan, that therefore the fourth Earl of Clanricarde was seised of the advowson; or what proof does that afford that Edward Donnellan was presented by the fourth Earl of Clanricarde? It is admissible in evidence no doubt because it shews the title of [358] the Clanricarde family, under which the Plaintiff counts: And therefore when you come to the general traverse, no doubt the deed of the fifth Earl of Clanricarde, or the presentation by the representative of Donnellan would be admissible in evidence, but it is no evidence

under the special traverses. It is important for your lordships to bear in mind that the most material document of evidence for the Plaintiff is offered, not upon a distinct issue or traverse, but upon the general traverse upon which they say our fine is not admissible in evidence.

Supposing that the documents are receivable in evidence upon the pleadings as they stand, and that if properly authenticated they prove the title of the family of Clanricarde, the next question is whether they were properly authenticated. We contend, that according to the established rules of evidence, neither the deed nor the case ought to have been submitted to the jury at all. It has been superfluously contended that it is a rule of law, that a deed thirty years old does not require proof by an attesting witness, and that the courts discountenance the production of an attesting witness to prove the execution of such a deed. But this doctrine must be qualified by the question, does it come from the proper custody, which is the material point of the issue in this case, and it applies to both documents. As to the case, supposing it properly authenticated, there is another and distinct objection, the objection to receiving it in evidence, as being a statement made by a client for the opinion of his counsel.

With respect to the deed, the proof that it comes from the proper custody is upon the Plaintiff. In [359] the course of the discussion which has taken place, it has been assumed that these papers have been found in the custody of a descendant of the bishop of Meath. The evidence proves no such thing; Dopping says, he is a descendant of Anthony Dopping, formerly Bishop of Meath, and that he has in his possession several papers." But where did he get those papers? he never had the custody of those papers. He must shew that he is that species of descendant who was likely to have the papers of the party, and that they were properly in his custody as the descendant of that person. But the mere fact that he was a descendant, if he had produced them from his own house, would not be sufficient to allow those papers to be received in evidence. This he does not shew, and therefore so far as regards authentication these papers might as well have been produced at the trial by a stranger. It appears that Sir William Betham went to Lowton House, " and that the Rev. Mr. Sirr was with him; that he found said parcels of papers in a room with other papers, and that he handed said parcel of papers, to the said Mr. Sirr on or about the 28th of October, 1828: that Lowton House belongs to or is inhabited by Mrs. Dopping, a middle aged lady." But whether she is connected with the family of the Bishop of Meath does not at all appear. Sir W. Betham says, "he put no mark on the papers, but that he took copies of them; that at the time of finding the papers he found several visitation books of the diocese of Meath, particularly one of the year 1616, by George, Bishop of Meath, and that there were in the same room other papers relating to the see of Meath, several of [360] which were in the parcel which he brought away." These other papers were not produced.

Suppose a witness to state that he found certain papers, produced with a book which he says was a visitation book of the diocese of Meath; and suppose upon enquiry it turned out that the book was a book belonging to the diocese of Ossory; does it not show the extreme danger of allowing a witness to state the contents of a written paper? If the document is to receive authentication upon the ground that it was found with the visitation book of the diocese of Meath, it was most important that the book should be produced to show that it was in fact the visitation book of the diocese of Meath. Are we to take the statement of Sir William Betham, the brother of the party in the cause, that this book belonged to the diocese of Meath, and that these papers were found in connection with it? Lowton House has no connection with the registry of the diocese; and, if these papers are to receive authentication merely from being found in company with the visitation book belonging to the diocese of Meath, that book ought to have been produced.

In the case of wills, if a witness goes to the proper custody for such wills, and says, "I found this among the wills of a certain date," you need not produce the other wills to prove that they bore that date. But if, as in this case, a witness goes to a house unconnected with the diocese, not proved to be connected with the Bishop or any of the parties, then if such paper is to receive its authentication by other papers that are found with it, those papers should be submitted to the court, that the court may see whether they answer the [361] description given by the witness; otherwise