fendant in error was taken upon the fifth count only, it is not necessary [333] further to advert to the other counts of the declaration or the pleas thereto.

By the fifth count of the declaration the Plaintiff, after setting forth the pedigree of the house of Clanricarde, from the first to the fourth Earl of the family, stated that Rickard, the fourth Earl of Clanricarde was in the year 1626 seised in his demesne as of fee of and in the manor of Rathweir, with the appurtenances, in the county of Westmeath, to which the advowson of the church of Killucan, otherwise Rathweir, was appendant; and that being so seised, he the said Rickard, Earl of Clanricarde, on the 12th of April, 1626, presented to the said church Doctor Edward Donnellan, his clerk, who was on such presentation admitted, instituted and inducted into the said church: that upon the death of the said Earl in the year 1635, his eldest son and heir-at-law, Ulick, the fifth Earl of Clanricarde, became seised of the said manor of Rathweir, and the said advowson appendant thereto. The count then stated the rebellion in Ireland in the year 1641, and that by reason thereof the manor of Rathweir,with the advowson appendant, were, with the other possessions of the Earl of Clanricarde, seized and sequestrated into the hands of the Crown. The pedigree of the Clanricarde family is then deduced to Rickard, the sixth Earl of Clanricarde, and heir male of the body of Ulick, the first Earl of Clanricarde.

The count proceeds to state that by letters patent, bearing date the 8th day of April, in the fourteenth year of the reign of his late Majesty King Charles II., his said late Majesty granted unto the said Rickard, sixth Earl of Clanricarde, (amongst other properties of which Ulick, the fifth [334] Earl had been seised in the year 1641,) the manor of Rathweir, with the advowson appendant thereto, to hold to the said Rickard and the heirs male of his body, with remainder to the heirs male of the body of Ulick, first Earl of Clanricarde, remainder in fee to the heirs of the said Ulick, first Earl of Clanricarde.

That by the statute made in Ireland in the fourteenth and fifteenth years of the reign of his said Majesty King Charles II., commonly called the Act of Settlement, the said letters patent were fully confirmed.

That upon the death of the said Rickard on the 10th of August, 1666, without issue male, his only brother, William, seventh Earl of Clanricarde, as heir male of the body of Ulick, the first Earl of Clanricarde, became seised in fee tail of the manor of Rathweir, with the advowson of Killucan appendant thereto; and being so seised, the said William, Earl of Clanricarde, by indenture made on the 2d of May, 1670, conveyed to Sir Patrick Mulledy and his heirs the said manor of Rathweir; expressly excepting and reserving to him the said Earl, and the heirs male of his body, the advowson of the said church of Killucan, whereby the said Sir Patrick Mulledy became seised of the manor of Rathweir; and the said William, Earl of Clanricarde continued to be seised in tail male of the said advowson, which thenceforward became an advowson

in gross.

That William the seventh Earl being so seised of the advowson in gross, died on the 10th day of October, 1687, leaving Rickard his eldest son, eighth Earl of Clanricarde, who thereupon became seized in fee tail of the advowson.

[335] The count then set forth the act of parliament, made in Ireland in the second year of the reign of her late Majesty Queen Anne, intituled "An Act to Prevent the further Growth of Popery;" whereby the advowsons of Roman Catholics became vested in the Crown, until conformity, as therein provided.

That Rickard, the eighth Earl of Clanricarde, being so seized of the advowson, died on the 6th of April, 1708, without issue, leaving John, who thereupon became ninth Earl of Clanricarde, his brother and heir at law. That John, ninth earl, being a Roman Catholic, the advowson in gross became vested in the Crown, under the said act of parliament, until such conformity as thereby directed. That John the ninth Earl died in 1722, leaving Michael his son and heir at law, who became tenth Earl of Clanricarde, and who duly conformed to the Protestant religion; whereupon the advowson of Killucan became revested in him in tail male. That on the 28th day of . November, 1726, Michael the tenth Earl died, leaving John Smyth, his eldest son, who thereupon became eleventh Earl of Clanricarde, and seised in fee tail of the advowson of Killucan.

The count proceeds to state that, by a private act of parliament made in England, in the tenth year of the reign of his late Majesty King George III., the said advowson

was, amongst other things, limited to the use of the said John Smyth, eleventh Earl of Clanricarde, for the term of his natural life, with remainder to his eldest son Henry, Lord Dunkellyn, for his life; remainder to the first and other sons of the said Lord Dunkellyn, in tail male; with remainders over, and the reversion in fee to [336] the said John Smyth, eleventh Earl of Clanricarde: and by the said last mentioned act of parliament the said Henry Lord Dunkellyn was empowered to appoint a jointure, chargeable upon said settled estates, in favour of any woman with whom he should intermarry, and to limit and create a term of years for securing the due payment of such jointure. It then states the death of John Smyth, the eleventh Earl, in the year 1782, leaving the said Henry, Lord Dunkellyn, his eldest son, who thereupon became twelfth Earl of Clanricarde, and seised for the term of his life of the advowson in gross.

The count then alleges that Henry, twelfth Earl being so seised and empowered, in the year 1785 intermarried with Urania Anne Paulett (now Dowager Marchioness of Clanricarde); and that by deed, bearing date the 15th day of March, 1785, and made before and in contemplation of the said marriage, the said Henry, twelfth Earl of Clanricarde, by virtue and in exercise of the said power, limited and appointed to the use of the said Urania Anne, a jointure of £2000 per annum, charged upon said settled estates; and also thereby limited, appointed, and demised unto Henry Penruddock Wyndham, and the said Marquis of Winchester, amongst other things, the said advowson of the church of Killucan for a term of five hundred years, for the better securing to the said Urania Anne the due payment of the said jointure of £2000. That the said Henry, twelfth Earl of Clanricarde, who was afterwards Marquis of Clanricarde, died on the 10th of May, 1797, leaving the said Urania Anne Marchioness of Clanricarde, his widow, him surviving (and who is still living). [337] That the said Henry Penruddock Wyndham, and the said Marquis of Winchester, being possessed (amongst others of the said settled estates) of the said advowson for the said term of five hundred years, the said Henry Penruddock Wyndham died on the 1st of May, 1810, leaving the said Marquis of Winchester, the now Defendant in error, him surviving, and sole possessed of the said advowson for the residue of the said term of five hundred years, and intitled to present a fit and proper person to the said church of Killucan, when the same became vacant by the death of the said Reverend Henry Wynne, the last incumbent thereof, on the 15th of February, 1828.

To this fifth count of the declaration the Bishop of Meath, one of the Defendants below, pleaded thirteen pleas: by the first of said pleas the said Bishop traversed the appendancy of the advowson to the manor.

Secondly. The seisin of Rickard, fourth Earl of Clanricarde, of the manor with the advowson appendant.

Thirdly. The admission and institution of Edward Donnellan on the presentation of Rickard, fourth Earl of Clanricarde.

Fourthly. The seisin and sequestration of the manor and advowson to the use of King Charles II.

Fifthly. The grant of the manor, with the advowson appendant, by King Charles II., to Rickard sixth Earl of Clanricarde.

Sixthly. He pleaded nul tiel record of the letters patent of the 8th April, 14th of Charles II.

Seventhly. He traversed the grant of the advowson by John Smyth, Earl of Clanricarde, unto [338] Eaton Stannard and Robert French, by a deed bearing date the 25th of May, 1745, mentioned in the fifth count of the declaration, and thereby stated to have been lost, but not material to be further adverted to.

Eighthly. He traversed the loss of the said deed of the 25th of May, 1745.
Ninthly. He pleaded nul tiel record of the Act of Parliament 10th of George III.
Tenthly. He traversed that Henry, Earl of Clanricarde, did by the deed of the
16th of March, 1785, limit, appoint, and demise the advowson to Henry Penruddock
Wyndham and the Marquis of Winchester.

Eleventhly. That the deed of the 16th of March, 1785, was made and is lost.
Twelfthly. That the Marquis of Winchester is possessed of the advowson.

Thirteenthly. He pleaded a grant by his late Majesty, King Edward IV., on the 9th of January, in the ninth year of his reign, of the said advowson in gross to

William, then Bishop of Meath, and his successors; and that on the 12th day of April, 1626, Edward Donnellan was collated to the said church by Anthony, Bishop of Meath, in right of his said bishoprick, and traversed that the said Edward Donnellan was admitted to the said church on the presentation of the said Rickard fourth Earl of Clanricarde.

The Reverend James Alexander, the other Defendant below, pleaded eight pleas to the said fifth count of the declaration.

The first, second, third, fourth, sixth, and eighth, of the clerk's pleas correspond with the first, second, third, fourth, ninth, and twelfth of [339] the Bishop's pleas. He further traversed the seisin of Michael, tenth Earl of Clanricarde.

And, that it belongs to the Marquis of Winchester to present a fit person to the said church.

The eleventh plea of the Bishop to the fifth count of the declaration having been so framed as to render it impossible for the Plaintiff below safely to take issue thereon, he was compelled to demur thereto; and the Bishop having joined in demurrer the same was argued in the Irish Court of Common Pleas, and judgment had thereon in favour of the Plaintiff below.

Issue being joined upon the other pleas, the cause was tried at the bar of the Court of Common Pleas in Ireland, and before a special jury of the county of Westmeath, on the 15th day of November, in the year 1830.

To maintain the said issues on the part of the Plaintiff below, the substance of the proofs adduced was as follows:

·

It was shown that King Edward II. being seized of the manor of Rathweir with its appurtenances, granted the same, together with all advowsons of churches there unto belonging by letters patent, bearing date the 6th of April, in the 9th year of his reign, to John d'Arcy and Johanna his wife, in tail male: and it appeared by the enrolment of a writ issued on the 21st of July, in the fifth year of the reign of King Edward III., ordering the justices of Ireland to cause an extent of the said manor to be made, and also by the enrolment of an extent of the said manor made in pursuance of said writ, at Drogheda, in the fifth year of the reign of King Edward III., that there then was in the [340] said manor a certain parish church, the patronage of which belonged to the said manor. There was further shown by an entry in an ancient book remaining of record in the registry office of the diocese of Armagh, the presentation by Sir William d'Arcy of one Dermott Martin to the rectory of the parish church .of Rathweir, on the 13th of March, 1509, therein stated to be then vacant by the death of Thomas d'Arcy, the last incumbent thereof. An inquisition taken before the Barons of the Exchequer of Ireland, at Dublin, in the twenty-third year of the reign of King Henry VIII. was also shewn, whereby, amongst other matters, it was found that the said King Henry VIII. was seised of the said manor with its appurtenances; and there was further shown the enrolment in the Rolls' Office of the High Court of Chancery in Ireland of a presentation by King Henry VIII., dated the 18th of August, in the twenty-fourth year of his reign, of one William Cocks to the said church of Rathweir, being then vacant, and to the donation of the said king belonging.

It was further shown, that King Henry VIII., by his letters patent bearing date at Westminster, the 16th of August, in the twenty-sixth year of his reign, granted the said manor of Rathweir, with its appurtenances, together with the advowsons of churches, to one John D'Arcy and his assigns for life, at the rent of twenty marks; and by letters patent, bearing date at Westminster the 29th of October, in the fourth and fifth years of the reign of King Philip and Queen Mary, reciting the said life estate of the said John D'Arcy, in the said manor of Rathweir with its appurtenances; also the Crown's reversion in the same after the death [341] of the said John D'Arcy, the said king and queen granted to Gerald, Earl of Kildare, and Mabella, his wife, and to the heirs male of the body of the said Earl, the reversion of the said manor of Rathweir with its appurtenances, and all advowsons and right of patronage of churches thereto belonging, or in any manner whatsoever appertaining.

It further appeared, that by letters patent of King James I., bearing date, at Dublin, the 30th of October, in the first year of his reign, after reciting the said lastmentioned patent of King Philip and Queen Mary, and reciting that said Gerald, Earl of Kildare, was dead without issue male, the said King James I. granted and

ccnfirmed unto one John King all his reversion in the said manor of Rathweir, with its appurtenances, and all advowsons and patronage of churches in any manner belonging or appertaining to the said manor, as fully as he the said King James, or any of his progenitors had enjoyed the same, to hold to the said John King, his heirs and assigns for ever.

The Plaintiff below also produced an attested copy of a fine, bearing date on the morrow of the Purification, in the fourth year of the reign of King James I., and levied by the said John King, and Catherine his wife, to Rickard Burke, fourth Earl of Clanricarde, of the manor of Rathweir, with all advowsons, rectories or rights, patronage and other appurtenances to the said manor belonging; also a copy of the enrolment from the Rolls' Office of Chancery of a king's letter, bearing date the 8th of April, in the sixth year of the reign of King James I., directing the acceptance from Rickard, fourth Earl of Clanicarde, of a [342] surrender of all his manors and temporal and spiritual hereditaments in Ireland; and 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 inquire as to the same; and also an inquisition taken at Athlone, on the 4th of May, 1609, pursuant to said commission, finding that the said Rickard, Earl of Clanricarde, was then peaceably seised in his demesne as of fee of the manor of Rathweir with its appurtenances, by purchase from John King, as appeared by deed of bargain and sale, dated 1st January, 1606, and of all advowsons of churches and vicarages in any manner belonging to the same; and as also appeared by the exemplification of the said fine; and also letters patent, dated, at Dublin, the 19th of July, in the eighth year of the reign of King James I., whereby he granted and confirmed to Rickard, fourth Earl of Clanricarde, the manor of Rathweir, with all its rights, members, and appurtenances, and hereditaments, as fully and amply as the same ever came or ought to have come to the Crown by any legal means whatsoever, to hold to the said Rickard, fourth Earl of Clanricarde, and his heirs and assigns for ever.

And the Plaintiff further produced and proved a duly attested and compared copy of the letters patent mentioned in the fifth count of the declaration, and dated at Westminster the 8th of April, in the fourteenth year of King Charles II., and confirmed as herein before stated by the Act of Settlement, granting, amongst other things, the said manor, and all rectories and advowsons of churches whatsoever in Ireland, which Rickard, fourth Earl, or Ulick, Marquis of Clanricarde, was [343] possessed of by any title or any claim, to Rickard, sixth Earl of Clanricarde, and the heirs male of his body; remainder to the heirs male of the body of Ulick, first Earl of Clanricarde; remainder to the right heirs of the said Ulick.

The pedigree of the Earls of Clanricarde, as stated in the fifth count of the declaration, was admitted by the Defendants below; and also that there had been a conveyance of the manor of Rathweir to Sir Patrick Mulledy, and that he or the persons deriving under him had forfeited, and that all their property had vested in the Crown under the Act of King William the Third.

The Plaintiff below also produced from amongst the papers of the present Marquis of Clanricarde two deeds; one bearing date the 4th of March, 1699, whereby Rickard, then Earl of Clanricarde, conveyed to John Morgan of Monksfield, in the county of Galway, Esquire, and his heirs, upon trust, the advowsons and rights of presentation to churches of the Clanricarde family; and the other bearing date the 27th of March, 1744, purporting to be a reconveyance by John Morgan of Kilcolgan, in said county of Galway, to John Smyth, Earl of Clanricarde, of the said advowsons; and, amongst others, the advowson or right of patronage of, in, and to the rectory and parish church of Rathweir and Killucan, in the county of Westmeath.

And the Plaintiff below produced and gave in evidence an attested copy of the private act of parliament in the fifth count of the declaration, mentioned to have been made in the tenth year of the reign of King George III., and vesting the settled estates of John Smyth, Earl of Clanricarde, [344] in the kingdom of Ireland, in trustees to the uses therein mentioned, discharged of the trusts contained in the deed of 25th of May, 1745; and by which act the power mentioned in the said fifth count was vested in Henry, then Lord Dunkellyn, the eldest son and heir of the said John Smyth, Earl of Clanricarde, to charge the said settled estates with a jointure of £2000, and to secure the same by a trust term, as in the said count mentioned; and also the original memorial of a deed dated the 16th of March, 1785, whereby the

said Henry, Lord Dunkellyn, upon his intermarriage with Urania Anne Paulett, the present Marchioness Dowager of Clanricarde, exercised his said power of charging his said estates (including said advowson) with said jointure of £2000; and by which, for securing the payment of said jointure, he the said Henry, Lord Dunkellyn, created and vested a term of 500 years in the same, in the said Henry Penruddock Wyndham and the said Marquis of Winchester, and which said term then was and still is vested in the said Marquis of Winchester, he having survived his said co-trustee, the said Henry Penruddock Wyndham.

The evidence relied upon by the Plaintiff below, with respect to seisin of the advowson, or the exercise of the right of patronage, to the rectory and vicarage of Killucan, was as follows: :

1. An attested copy of a royal commission, bearing date the 22d of June, in the fifteenth year of the reign of King James I. to inquire, amongst other matters, by whom the several parsonages, vicarages, and other spiritual livings, then were and had been held and enjoyed, and a duly compared and attested copy of an [345] entry in the regal visitation-book of the year 1615, being the return to the said commission in the words following: 1615. Rectoria de Rathweir, alias Killucken, comes Clanricarde, patronus: dicta rectoria valet per annum, £200; Magr. Johannes Carter, clericus, in artibus Magr., verbi divini predicator, rector. Vicaria de Rathweir, alias Killucken, ecclesia et cancel. reparat. comes de Clanricarde patronus; dicta vicaria valet per annum £40, Magr. Nicholas Robinson, clericus, verbi divini predicator, vicarius; Mr. Jacobus Byram, clericus, in artibus bachalarius, verbi divini predicator, curat." Also an entry in the book containing returns of institutions and collations by the archbishops and bishops of Ireland remaining of record in the First-Fruits Office in his Majesty's Court of Exchequer, showing by certificate of Anthony, Bishop of Meath, dated the 28th of April, 1627, that Edward Donnellan was admitted to the rectory and vicarage of Rathweir: and by certificate of Arthur, then bishop of Meath, dated in 1743, that one Peter Warburton was instituted on the 13th of February, 1741, into the rectory and vicarage of Rathweir also an entry in the regal visitation-book of 1633, whereby it appeared that Mr. Edward Donnellan was then rector and vicar of the said rectory and vicarage.

2. An attested copy from the book of commissioners in the Vice Treasurer's office of Ireland, of a commission of the Commonwealth of England, dated Dublin, 19th August, 1653, directing inquiry by the Commissioners of Revenue, by examination of witnesses on oath, among other things," of all manors, rectories, and other hereditaments, who owned same upon the 23d [346] of October, 1641, and who now enjoy or claim the same; and what estate in the same was enjoyed or claimed in 1641, and what now." And an attested copy of the original return to the said commission, dated Athlone, 7th November, 1653, for county Westmeath, now remaining of record in the said Surveyor-General's office, finding upon oath, "that the parsonage and vicarage of the parochial church of Killucan was on the 23d of October, 1641, held by Edward Donnellan, clerk and parson of the same by virtue of the presentation of the Earl of Clanricarde, patron thereof, and by the admission of the ordinary."

By the examination of three witnesses, namely, Anthony Dopping, John D'Arcy, and Sir William Betham, the Plaintiff below proved the finding at Lowton House, in the county of Meath, of two documents; one a parchment deed bearing date the 28th day of March, 1637, and purporting to be a grant of Ulick, fifth Earl of Clanricarde, to Doctor Edward Donnellan of the then next avoidance of the rectory and vicarage of Rathweir, otherwise Killucan; and the other dated 28th of February, 1695, and purporting to be a case stated for the opinion of counsel on the part of the said Anthony Dopping, Bishop of Meath, wherein it was, among other things, stated on the part of the said Bishop, "that in the year 1637, Ulick, Earl of Clanricarde, granted to Doctor Donnellan, incumbent of Rathweir, his executors and administrators, the next presentation to the rectory and vicarage of Rathweir, dated the 28th March, 1637; that in 1642, both rectory and vicarage being void by the death of Doctor Donnellan, his widow and executrix, presented pro hâc vice tantum William Barry to both, who was insti-[347]-tuted by the bishop June 13th 1642, but not inducted till the 27th February, 1660; and that, by a mandate from the Bishop's suc cessor, the bishop that instituted being dead before William Barry's induction."