E. T. 1846. Common Pleas. WINCHESTER v. BISHOP OF whether the advowson, when it revested in Rickard, the eighth Earl, vested in him absolutely, or on the uses of the patent of 1662; and they sought to be safe, whichever way the Act of Explanation should MARQUIS OF be construed. They cannot declare that Rickard, the eighth Earl, was seised in fee, and, at the same time, that he was not seised in fee; or that John, the ninth Earl, derived under Rickard, as his heir, and, at the same time, that he did not derive under him as his heir; or that he derived as heir male of the body of Ulick, the first Earl, and in the same breath, that he did not derive as his heir male; and so as to the other Earls. The objections we have been urging apply to all the counts; and the demurrer, therefore, ought to be allowed. Sir Colman O'Loghlen and J. B. Miller, with whom were the Attorney-General and Napier, in support of the declaration. The demurrer taken by the Bishop is irregular, as it is settled law, that in a quare impedit the ordinary cannot demur. At common law the ordinary could not plead to the title of the patron, because he had no interest therein, and therefore could not dispute that in which he had no interest: Mallory, 209. To remedy this inconvenience, the statute 25 Edw. 3, c. 3, s. 7, was passed: Vin. Ab. Presentation, B. D. 12, enabling the ordinary, when he collated by lapse, to counterplead the patron's title; but if he has not collated by lapse, his position remains the same as it was at common law, and he cannot dispute the title of the patron: Ellis v. The Archbishop of York (a); Apperly v. Bishop of Hereford (b). The Bishop's inquiries must be only as to the fitness of the clerk, not the jus patronatus :[BALL, J. Does that principle hold good, when the Bishop claims the advowson against the patron?]-In this case, the Bishop does not claim advowson in his own right on the record. If he had done so, he ought to have pleaded it on the record; he is only to be taken as ordinary, and as such he could not plead, so he will not be permitted to demur; and accordingly there is no precedent of a demurrer by a Bishop. Now, with respect to the principal argument, we do not dispute the three general propositions laid down, but we say that we have complied with all that is required by them. In the first place, we have shown a good commencement of title. We show a patent from the Crown in 1662-the Act of Settlement, and the Act of Explanation, confirming a title in our ancestors. It is contended, that inasmuch as we have not stated that the King was seised in fee, our WINCHESTER v. BISHOP OF E. T. 1846. statement of title is defective. We admit, that if the patent stood Common Pleas. alone, we would have no title, and the declaration would be open to MARQUIS OF demurrer; but the statute cures this defect; and taking the whole of the declaration, viz., the patent and statute together, they form a good commencement of title. The patent confers nothing upon us, yet we have a good title under the Act of Settlement; for, supposing the King had no title to make the patent, yet, having been confirmed by the Parliament, it is a good grant: Vin. Ab. Confirmation, Y. 1, where it is laid down, that a statute can confirm a void grant; and also, that if the King grants to W. N. the lands of I. S., it is a void grant; and yet if it be confirmed by Parliament, it is a good grant. There was no necessity for us to negative the saving in the statute; that should have come from the other side. The 216th section confers no title, as we admit, but the 217th does; for though the word "advowson" is not in that section, yet it is admitted, that the word "hereditaments" may extend to it. This section confers a valid title on us, even if the King had no title. If the statute had stopped before it came to the saving clause, there could be no question on the subject, and it lay on the defendant to negative the saving. We use the patent as furnishing a mere description of the premises vested by the Act of Settlement; and in that view, taking the two together, they confer an indefeasible title, no matter whether the King had title or These observations get rid of another objection as to duplicity in setting out our title, because the title would not be complete unless we stated our title both under the statute and under the patent. I now come to the saving clause, by which, it is urged, we have no title, unless it is shown that the Rectory was the property of the King, or some of the Clanricarde family in 1641; and that such facts, if they were facts, ought to have been averred. But we say, that if the title were in any other person, they should have pleaded it. If there is to be any presumption in the case, it ought to be in our favor, that we had a good title under the statute. The presumption of law is, that the patronage of every advowson is in the King: Mirehouse on Advowsons, 130. He is the patron paramount of all advowsons in England, and of course in Ireland also, where there is no other patron; and therefore, if it is necessary to raise any presumption on the subject, that presumption should be in favor of our title; but there is no such necessity; for if there is title in any other person, they could and ought, as we have before observed, to have raised it by plea: Com. Dig. Pleader, C. 81, where it is laid down, that the party taking advantage of the exception in a statute, must plead it; and, of course, the same principle not. Common Pleas. WINCHESTER v. BISHOP OF KILLALOE. applies to a saving clause: Ingram v. Foot (a); Jones v. Axon (b); E. T. 1846. Steele v. Smith (c). The proviso in the saving clause is separate and distinct, and not incorporated with the enacting clause, there being MARQUIS OF no such words as, "except," &c. There are no sections in the roll of the Acts of Parliament; and the saving clause in question might have had several intervening clauses between it and the enacting clause, and does not necessarily follow it. This is illustrated by the Act of Explanation, because there you find a saving clause like this in the body of the Act, and a perfectly isolated proviso (vide 98th section). We need not, therefore, have noticed it in our statement of title; but they ought to have pleaded it: Ward v. Bird (d). The same principle is applicable to deeds as well as statutes: Montgomery v. Sherlock (e). It was said, that the statute in question did not confer any title upon us; but it not only says that it shall be vested, but that "it is hereby vested." But then it is insisted that the Act of Settlement is not to be read alone, but in connection with the 57th and 58th sections of the Act of Explanation, and that only confirms the title given by the letters patent of 1662; but such is not the true construction. If the 58th section stopped at the first part of it, there might be some ground for the argument; but it goes on, and says, that this restoration and confirmation is not only to extend to the premises in the possession of the Clanricarde family in 1641, but to the premises mentioned in the several clauses of the former Act. It is true, that the word "advowson" is not specifically mentioned in that Act, but the word "hereditaments" is sufficiently large to comprise it; so that the argument that we have no title, unless it was in the possession of the Clanricarde family in 1641, and shown to be such, fails. Therefore, taking the statute and the patent together, we have shown a good title; and if there is any exception in favor of any third person, it should be pleaded by the defendant. Two objections were made by the defendant's Counsel with respect to our title as connected with the M'Cartie family; first, that the Court was bound to presume that Charles M'Cartie was a Protestant; and, in that event, that the estate was never vested in King Charles; and secondly, that the money might, consistently with our averments, have been paid off as recently as the year 1840. With respect to the latter objection, our averment is, "that the "money was long since duly paid off and discharged, to wit, on the (a) 1 Ld. Raym. 709. (c) 1 B. & Al. 94. (b) 1 Ld. Raym. 120. (d) 2 Chit. 582. (e) Ir. Term Rep. 543. Common Pleas. MARQUIS OF WINCHESTER v. BISHOP OF E. T. 1846. "day and year, and place last aforesaid." Here there is a sufficient averment of venue and time, which refers to the last averment—viz., the day of the date of the patent of 1662; but we are not bound to set forth the payment with more accuracy in our declaration, for if not "duly paid off and discharged," as alleged, it was open for them to show that fact at the trial.-[BALL, J. It was for you to show that the condition which determined the estate was performed, not for them.]-The word "duly" was sufficient to show that the money was paid at the proper time, and in the proper manner-viz., at the date of the patent: The King v. Chetwode (a). If we are right in this position, it is then immaterial whether M'Cartie was a Protestant or not (and I will admit that the presumption is that he was a Protestant), because in the pleadings no estate vested in him, the whole being vested on the day of the date of the patent in Rickard, the sixth Earl of Clanricarde, and before the Act of Explanation, which vested it in the King. We have, therefore, shown a legal foundation of our title to the advowson. We have next to show the possession, by a presentation consistent with that title; and then a legal devolution of that title upon ourselves. First, as to the presentation, which we contend is referrible to, and consistent with, the title. The presentation we aver to have been by Lord Dunkellin, who was the grantee of the King, and being a Protestant and competent to take the presentation by him, was not by usurpation, but was sufficient for our title. The King had power to grant to Lord Dunkellin, the advowson being vested in him until the conforming of the heir of the first Earl of Clanricarde. It was assignable by the King, though he had only a qualified title in himself: Culpepper v. Coveney (b); provided the assignment was to a qualified person, which we submit Lord Dunkellin was at the time of the grant. We admit that it is not expressly averred that Lord Dunkellin was a Protestant; but it is sufficiently averred. The Court will presume that all that was done was rightfully done. There is every thing in the record to induce presumption that Lord Dunkellin was a Protestant at the time of the grant; there is a recital of the clause of an Act of Parliament incapacitating a Papist; the presentation too, not being traversed, is admitted, as also the institution by the Bishop, and therefore there is sufficient to warrant the presumption that the presentation was a rightful presentation, and therefore, made by a qualified person. We are, therefore, bound to presume that Lord Dunkellin was a Protestant, the intendment on one side exceeding that in the other: Wriothesly v. Adams (b); Vin. Ab. Declaration B., where it is laid down, that a man having brought (a) 7 B. & C. 703. (b) Vin. Ab. Prerogative M. 6, 13. But Common Pleas. WINCHESTER V. BISHOP OF an action, it will, therefore, be presumed that he had a right of E. T. 1846. action. The principle, that the presumption is that presentations made were made by right and not by wrong, is clearly laid down, MARQUIS OF and acted upon, by Lords Tenterden and Littledale, in the case of Gully v. The Bishop of Exeter (a). It is said, that it must be presumed that Lord Dunkellin continued to be a Papist until his father's death, because it is averred that after his father's death he conformed. such an averment was necessary, even supposing him to have conformed during his father's life; because, according to the terms of the Act, by which he could only conform as heir, it may have been necessary to show that he conformed after he became Earl of Clanricarde. The averment may have been unnecessary and supererogative, but it cannot, under the circumstances, be taken as raising a presumption that Lord Dunkellin was a Papist during his father's lifetime, and therefore at the time of presentation. The presentation averred is, therefore, consistent with the title, and sufficient: Vin. Ab. Presentation, W. cc. 8, 9, 10. All the authorities on this subject will be found collected in the Countess of Northumberland's case (b). Lastly, we have shown a sufficient devolution of title upon ourselves. The question on this part of the case arises, on the demise to John Smith, Earl of Clanricarde, from whom it passed, by the 10 G., to certain trustees for a term of three hundred years, to secure a jointure, and subject to that term, to another term of five hundred years in other trustees, under whom we claim. It is admitted, that our title is good, if it appears that there has been a cesser of the term of three hundred years. Our averment is, that "the trusts of the term have been long since satisfied, and the said term ceased and determined." That averment is sufficient, though there is no averment of the time at which the term ceased.-[BALL, J. They object also that you have not averred how the term ceased.]-We admit that we have only shown by averment that it had ceased. If, on the other hand, it had not ceased, it would have been a good ground for a nonsuit at the trial. They might have traversed that the trusts had not been satisfied, and that the term had not ceased and determined. In real actions, if a man brings an action, the presumption is that he has a right of action. In this case, therefore, as far as pleading is concerned, it is to be presumed that the plaintiffs had a cause of action before the action was commenced, and that, therefore, the three hundred years term had determined. Moreover, the principle of averring time and place to all traversable facts, does |