Common Pleas. WINCHESTER v. BISHOP OF With respect to the first of these propositions, I propose to show E. T. 1846. what the allegation is, on which the plaintiffs must be considered to found their title here, that no other foundation of their title can be MARQUIS OF collected from the matters stated, and then to show, that that foundation is a bad one. What then, is the allegation with which the plaintiffs commence their title to the advowson? It is this, that "by force and virtue of the premises (therein mentioned), the "advowson vested, remained, and continued in King Charles the "Second, and his said Majesty became seised thereof as one in gross, until the conformity of Rickard, the sixth Earl, or his heirs." This allegation, as a commencement, is bad, because it is a mere conclusion of law, and as such there should be proper premises to warrant it, and it is not warranted by any premises stated in the count. Before discussing that question, let us examine if there is in the count any matter showing, or from which it can be inferred, that the advowson (either as appendant to the rectory or otherwise) was vested in any person at any earlier period, or by any other means: First, do the words, "His Majesty granted," used in stating the letters patent of 1662, import that his Majesty had then the capacity to grant, or had then any title to the premises? We submit, that they do not import that that patent amounted to a valid grant, or that his Majesty had then a title to grant, nor were they used in the count for that purpose. The authorities in support of this position, will be found collected in the note to Morrison v. Redshaw (a), where it is laid down, "That in all cases of declarations by tenant in tail, for "life, or years, when the commencement of the particular estate "must be shown in the case of a common person, the same thing "must be done when the estate is derived from the King." It must be shown of what estate the King was seised at the time of the grant. So with respect to corporations, sole or aggregate: Newman v. March (b). It must also, it is said, be shown quo jure the King was seised, whether in right of his Crown, Dutchy, &c.: All Saints College v. Tamworth (c); Davenant v. Bishop of Sarum (d); Astot v. Clarke (e); Stephen on Pleadings, 308, 3rd ed.; 2 Chitty on Pleading, 376, 6th ed.; Heath's Maxims, 146. Then with respect to the precedents, seisin of the King is stated in all of them, e. g. Morrison v. Redshaw, where a lease from the King is pleaded. So in 2 Chitty on Pleading, 389 (6th ed.), and in Mallory (2nd part) 6. Another argument may be drawn from the fact, that the letters patent E. T. 1846. here were under the Great Seal of England, and not that of Ireland. WINCHESTER v. BISHOP OF Assuming that the plaintiffs must adopt this view, we are at liberty to say, that for aught that appears on this pleading, neither Charles the Second, nor Rickard, the sixth Earl, had any title whatever to the Rectory or the advowson, on the 8th of April 1662, the day on which the letters patent were made. We cannot infer that the advowson in question was vested in any way in Rickard, the sixth Earl, by virtue of the provisions of the 217th section of the Act of Settlement. In the first place, there is no mention of advowsons in that Act, nor any reference to them, save so far as they may have been comprehended in the word "hereditament," which, in its ordinary signification, would, of course, be sufficient to comprehend them. But it is not to be taken in its ordinary signification, for the 158th section of the Act of Explanation declares (in effect), that by the word "hereditaments," or by any other word contained in the former Act, advowsons should not be understood to have vested in any Irish Papist; so that it is not to be inferred, that the advowson became vested by the Act of Settlement in Rickard, the sixth Earl, who is alleged to have been all his life an Irish Papist, nor do the plaintiffs allege it, though they do allege that the Rectory became vested in him, but the advowson in the King. Such being the case, until we come to the allegation which I have termed the fundamental one in their case, there is nothing in the count importing that the advowson was vested in any person; in whom it was previously vested is left to conjecture. Their whole case, therefore, depends upon this, whether that fundamental allegation, which is obviously a conclusion of law, is or is not warranted by the premises? The facts on which this question arises may be thus stated:-Certain premises, and amongst them the Rectory of Kilgerrill, with its appurtenances, having been mentioned in the letters patent of 1662 to be granted to Rickard, the sixth Earl, and having been thereby intended to be granted to him; and the 217th section of the Act of Settlement having enacted, that whatever premises were so mentioned or intended to be granted, should be vested, settled, and established in Rickard, saving the rights of all persons, other than the persons therein mentioned; and nothing whatever having been said about the rights of the persons whose rights were so subjected to the Act, or whether they had any rights in the Rectory or not-does it follow that the Rectory of Kilgerrill was vested, settled, and established in him and his heirs, or that the Act gave him any title whatever to Common Pleas. WINCHESTER v. BISHOP OF KILLALOE. the Rectory? Was the vesting of the Rectory in him conditional, or E. T. 1846. unconditional? The plaintiffs must contend, that it lies on the defendant to show that the Act did not operate so as to vest the Rectory MARQUIS OF in Rickard, while the defendant, on the other hand, contends that it lies on the plaintiff to show that the Act did so operate. We submit that the plaintiffs should have shown that the parties excepted from the saving clause in the 217th section, had, in the Rectory, the estate which the plaintiffs allege was vested by virtue of the Act in Rickard, or (which amounts to the same thing) that the Rectory belonged, on the 22nd of October 1641, to the Clanricarde family, and was forfeited by the Earl, who was engaged in the insurrection in that year. The 217th of the Act of Settlement never operated, nor could operate, save only in one of two ways, first, by settling and establishing in Rickard, the sixth Earl, any property in which he himself had pre-existing rights, to the extent of such rights-in which case the Act would, in effect, merely declare or confirm such rights, or, in other words, merely relieve his property from its previous infirmity, or its liability to forfeiture; or, secondly, by vesting in, or transferring to Rickard, the sixth Earl, the rights of those parties whose rights were not saved from its operation, but subjected to it, to the extent of those rights, whatever they might be, like any ordinary conveyance. In the first view, if correct, the pre-existing rights of Rickard should of course be stated, whereas they are not. In the second view, the rights of the parties which the Act was to convey to him, should, of course, be stated, whereas they are not. Such an enactment, therefore, in the present case, must be read in this qualified way, viz., as vesting in Rickard this Rectory, "provided those parties, whose rights were not saved from, but subjected to, the Act, were entitled to it, and to the extent of any estate which they may have had therein." It is to be considered as if it were in fact a parliamentary conveyance of those rights, whatever they might have been. For example, if any of them were entitled to the lands, and not to the Rectory, it would operate to vest the lands in Rickard, and not the Rectory. This Act, therefore, is to be considered as if it had never been made, as to those whose rights were saved; and hence there are only two ways in which it could operate; first, as a mere declaration or confirmation of Rickard's pre-existing rights-in which view, such pre-existing rights should be stated-whereas they are not; and secondly, as a mere conveyance of the rights of those whose rights were not saved; in which case, those rights should in like manner be stated, which has not been done. The 1st section of the Act of settlement declares all the property of the insurgents to have been forfeited and vested in the King. WINCHESTER v. BISHOP OF KILLLALOE. E. T. 1846. Certain portions of this property were, however, excepted from the Common Pleas general vesting clause; and, among others, that described in the MARQUIS OF letters patent of 1662, which, it was provided, should be vested, settled, and established in Rickard, the sixth Earl, saving the rights of all persons, other than those parties therein specified. The 216th section declares that the property should not vest in the King; and the 217th section provides that it should be vested, settled, and established in Rickard, the sixth Earl, on the uses in the letters patent mentioned, "saving to all manner of persons, bodies corporate "and politic, other than your Majesty, your heirs and successors, &c., "and other than such as shall claim any right or title thereto, in "prejudice of any of the uses limited in and by the said letters "patent, by descent, or by virtue of any estate or remainder in tail "from any of the late Earls of Clanricarde." The 58th section of the Act of Explanation shows that the intention of the Legislature was to convey to the sixth Earl such property as belonged to his ancestors in 1641-that is to say, any estate which Ulick, the fifth Earl, might, if he pleased, have barred and defeated. That section, coupled with the 217th section of the Act of Settlement, left the latter a mere parliamentary conveyance to Rickard, the sixth Earl, of such rights, whatever they might be, as his ancestors had in the premises described in the letters patent on the 22nd of October 1641, or as the King had in them by forfeiture since that period. So that if any portion of those premises did not belong to his ancestors on the 22nd of October 1641, such portion would not have become vested by the Act, though described in the patent. It was intended to have been a mere restoration of the family property; and the 25th section of the Act of Settlement confirms this position. If these views are right, then, to show that the Act operated on the Rectory in question, the plaintiffs ought to have alleged that it belonged, on the 22nd of October 1641, to the Clanricarde family, and was forfeited by the Earl engaged in the insurrection, to the King. Our construction of the Act of Explanation is, that nothing therein or in the former Act mentioned, shall be understood to give, restore, or confirm to any Irish Papist, any advowson which but for this Act would have been given, restored, or confirmed to him, the words plainly implying that the property had belonged to him, and had been forfeited; but that all such advowsons (viz., as had formed part of the forfeited property of such Irish Papist) shall vest, remain, and continue in his Majesty until the conformity of such Papist (i. e. to whom his property was restored); and upon such conforming, shall again revest in him and his heirs. Thus, the 15th section points by irresistible implication to a state WINCHESTER v. BISHOP OF KILLALOE. of facts, showing that the advowsons belonged, on the 22nd of E. T. 1846. Common Pleas. October 1641, to an Irish Papist, by whom it was then, under the 1st section, forfeited; and in whom it nevertheless remained vested MARQUIS OF at the time of the Act of Explanation; and that it indispensably required such a state of facts to attract its operation. The plaintiffs, therefore, having omitted to show such state of facts, they have shown no title by virtue of that Act. The same observations are applicable in all respects to the second count, in which the letters. patent of 1662 are set out in the same way. But the advowson is alleged to have been appendant to the rectory. They also apply to the third and fourth counts, in which the advowson is stated to have been an advowson in gross; for in order to sustain these counts, they should show that the advowson would have become vested in Rickard the sixth Earl, but for the Act of Explanation; and the same arguments which went to prove that the rectory is not shown to have been vested in Rickard by virtue of that Act, proves also that it is not shown that the advowson (as in gross) would have been vested in him. With respect to the second main proposition-viz., that supposing the plaintiffs to have shown that a good title to present was vested in some person, yet they have not shown a presentation which can be referred to, or is consistent with, that title; in other words, the presentation shown by them, is one by a party who had himself no title but by usurpation. This proposition will be established, by showing that Lord Dunkellin, when he made the presentation relied on, had no title whatever to present. This we shall establish-first, by showing, that when Charles the Second made the patent of 1681, he had no title. Now, admitting that the plaintiff's have shown that the Act of Settlement operated so as to vest the rectory in Rickard, the sixth Earl, it does not follow that the advowson (which was appendant to it) must have vested in Charles the Second by virtue of the Act of Explanation; for the Act of Settlement vested the premises (if at all), not to the use of Rickard, but of Charles M'Cartie and his heirs, until payment by Rickard, or his heirs, or the heirs male of Ulick the first Earl, of the several sums in the said letters patent specified, and in the manner, and at the times, therein mentioned. Now, if this M'Cartie was a Protestant, and if the Act of Settlement vested the advowson in him and his heirs, until the money was paid, and if the money was not paid until the year 1800, or 1840 (all which we are at liberty to infer from what appears in the count), then the advowson would never have vested in Charles the Second by virtue of the Act of Explanation; for, in order that it should vest in the King, the advowson should be so circumstanced, |