case Theophilus Harrison plaintiff archbishop OF dublin defendant in error  that June Mews dig v Kildare v archbishop of Dublin bro p c and note thereto  although a benefice be appropriate to a prior or a dean and chapter yet the  bishop may visit to see how the church be serve etcetera and for contumacy may  proceed to suspension ab duty et kindness Mod viner vol p can vol p note to  can the plaintiff declare in prohibition that the priory of the holy Trinity  in Dublin be a ancient priory that the rectory of saint John in Dublin be  appropriate to it at the time of the dissolution or give up or renounce or  relinquish of the say priory and long before and that the last prior be seize  in fee thereof in right of his priory that king Henry VIII be seize in fee of  the say priory in right of his crown and of all the land and live thereunto  belong by letter patent date the that of may in the d year of his reign  transpose and change the priory into a dean and chapter and make the prior  dean one of the monk precentor another chancellor another treasurer and six  other vicar choral and incorporate they by the name of the dean and chapter of  the cathedral church of the holy Trinity Dublin with power to purchase and sue  and give they a common seal and power to make bylaw to allot what possession  each be to have and to choose vicar on vacancy and put they in actual  possession reserve to the king his heir and successor the nomination donation  and installation of the dean precentor chancellor and treasurer and their  successor and grant they all manor land advowson church rectory and other  hereditament as well spiritual as temporal which belong to the say late prior  in right of the cathedral church aforesaid that king Edward VI by letter  patent augment their number with six presbyter and two chorister during  pleasure and grant a pension to each of they for his subsistence that king  Philip and queen mary by letter patent date the that of may in the saint and d  year of their reign make the six presbyter and two chorister perpetual and  make their stipend perpetual also and grant that the dean and chapter shall  have the nomination of they and of all other inferior minister in the say  church that king brown James I by letter patent date the that of June in the d  year of his reign change the six vicar choral into three prebendary canon and  the six presbyter into six vicar choral he also name particular the person to  be then dean precentor chancellor treasurer and prebendary and make John  Albright prebendary of saint Michael Meredith Hanmer prebendary of saint  Michan and Barnaby bulger prebendary of saint John he then make they a  corporation by the same name as before and grant they de to make new all the  possession which the prior have as full and ample as they be in the hand of  any of the say former king and queen by any title whatsoever and dispose of  those possession among the member of that body politic and more particular he  give the church of saint Michael to the say John mbright and his successor  prebendary of saint Michael the rectory of saint Michan to the say Meredith  Hanmer and his successor prebendary of saint Michan and the rectory of saint  John to the say Barnaby bulger and his successor prebendary of saint John and  brown er p he also grant that all the member of that body shall enjoy their  several possession as so assign separate to they and their successor for ever  reserve nevertheless a power to the dean and chapter to appoint what portion  each member as well prebendary as other shall have of their possession and  grant that the dean and chapter and their successor upon any vacancy of  prebendary or vicar choral shall choose another and put he into the real  possession of the place without any application to the king his heir or  successor or to the archbishop of Dublin or his successor or any other person  whatsoever for their licence or consent save to the king his heir and  successor the nomination and donation of the dean the precentor the chancellor  and the treasurer and their successor on any vacancy that by virtue of these  grant the say dean and chapter have hitherto continue a corporation and  exercise the authority grant they without the intermeddle of any archbishop of  Dublin for the time be that the dean and chapter choose the plaintiff  prebendary of the prebend of saint John when vacant and put he into the actual  possession thereof by virtue of the say letter patent whereby he become seize  in fee of the rectory of saint John in right of his say prebend that all plead  touch freehold belong to the queen and her crown and not to the spiritual  court nevertheless the archbishop have sue the plaintiff in the spiritual  court as prebendary or incumbent of the say church of saint John under  pretence of contempt for not appear at the archbishop ordinary visitation and  although the plaintiff offer to plead all the say matter and to prove the same  yet the archbishop refuse to admit he so to do and suspend he ab duty et  kindness in the say church of saint John whereby he be deprive of his freehold  to this declaration the defendant protestand that king Henry VIII be not seize  of the say priory or of the land and hereditament thereunto belong as in the  declaration be brown suppose plead that the say priory be a ancient priory  time out of mind in which priory the canon of the order of saint victor and of  the regulation of saint Austin be to do divine service under one canonical  prior and which prior and canon from the time aforesaid be the chapter of the  archbishop of Dublin for the time be that the rectory and church of saint John  in Dublin be time out of mind a ancient rectory with cure of soul in the  diocese of Dublin that the archbishop of Dublin be time out of mind a ancient  archbishopric and that the defendant and all his predecessor archbishop of  Dublin time out of mind by ordinary jurisdiction which they have exercise do  for all the time aforesaid visit the say rectory of saint John and the  incumbent thereof actual have the cure of soul in the say parish of saint John  as often as there be need in saint Patrick close videlicet in the cathedral  church of saint Patrick Dublin within the diocese of Dublin that in the letter  patent grant by king Henry VIII the king do will and declare that the say  cathedral church shall be the archiepiscopal seat of Dublin as it before be  and use to be prohibit nevertheless the then archbishop of Dublin and his  successor from exercise any other jurisdiction or authority than the same  archbishop former use to exercise there while it be a priory that the rectory  or church of saint John aforesaid be long before and at the time of make the  say letter patent of king Henry VIII appropriate to the say priory that by a  act of parliament make at Limerick the that of February Henry VIII entitle a  act for the suppression of Kilmainham and other religious house it be inter  alian enact that such of the priory and religious house as before the  dissolution be exempt from the visitation and all other jurisdiction of the  ordinary of the respective diocese in which they be situate shall for the  future be within the jurisdiction and visitation of the ordinary of the  diocese within which they be situate the say statute or any other exemption  liberty or jurisdiction to the contrary notwithstanding that the say priory  and rectory time out of mind be within the diocese of the archbishop of Dublin  and that they time out of mind use to visit at saint Patrick close within the  diocese of Dublin the say priory until the time of the make the say letter  patent of king Henry VIII and also the dean and chapter of the cathedral  church of saint Trinity Dublin continual after the make of those letter patent  and likewise the say rectory and incumbent thereof have actual cure of soul in  the say parish of saint John that the say defendant be archbishop of Dublin do  on the that of march at saint Patrick close aforesaid decree to hold a synod  and visitation ordinary brown er p in the choir of the cathedral church of  saint Patrick Dublin within his diocese of Dublin upon the saint of April  accord to law and accord to the manner and custom aforesaid and that the  plaintiff be prebendary of the say prebend of saint John and incumbent of the  say rectory and church of saint John within the diocese of Dublin and have the  actual cure of soul brown in the say parish be afterward on the same that day  of march duly summon and cite to appear before the archbishop or his vicar  general in the cathedral church of saint Patrick Dublin on the say saint of  April then next to undergo the canonical visitation of the say archbishop the  defendant aver that he do hold the say visitation accord notwithstanding which  the plaintiff do not appear at the say synod or visitation whereupon the  archbishop in the say visitation then and there hold and continue till the d  of April then next do the same day in due form of law declare the plaintiff  contumacious and for his penalty of contumacy do in due form of law by his  sentence suspend the say plaintiff ab duty et kindness in the say parish  church of saint John Dublin for his contempt as it be lawful for he to do to  this plea the plaintiff demurrer and show for cause that the defendant have  answer the seize of king Henry VIII by way of protestation only that no  mention be make in the plea of the patent of Edward VI and Philip and mary  that the letter patent of king James I be recite verbatim whereas over ought  to have be demand of they that such part of the statute Henry VIII as be set  out in the plea be repeal and Philip and mary and never revive that the plea  as to this be argumentative and that the plea be repugnant and inconsistent  traverse matter not traversable and not answer the matter of the declaration  the defendant have join in demurrer the court of common plea in Ireland after  several argument give judgement for the defendant and upon a writ of error  first in the queen bench there and afterward in the court of queen bench in  England this judgement be affirm whereupon the plaintiff bring his writ of  error in parliament insist e Northey t Lutwyche that the judgement be  erroneous and that the archbishop in this case have not a power to visit the  plaintiff and if he have yet he can not do it in the manner he have do it be  admit that the rectory of saint John be appropriate to the priory and as the  law suppose this to be do with the consent of the ordinary he have therefore  divest himself of his right of visitation of the rector of the church nor be  it dispute but that this rectory come to the crown by the statute for the  dissolution of monastery so that king Henry VIII be seize in fee thereof have  a power to grant it to who he please and therefore it ought to be look upon as  a lie fee in the same manner as if he have grant the dean and chapter any  other land or live in his gift that do not before belong to the priory which  make they donative and so the archbishop can not hinder they or the plaintiff  in their right from receive the profit thereof that the prebendary be at first  establish by king James I he be to be take as the founder of they and so they  be donative not come in by any application to the bishop and therefore not  visitable by he that it be very considerable in this case who must be take  upon the brown present record to be the rector and incumbent of this church  the rectory be first grant to the dean and chapter by king Henry VIII and  afterward by the charter of king James I it be likewise grant to the dean and  chapter but in the same charter it be direct that the prebend of saint John  and his successor shall receive the profit 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 belong to the dean and chapter and the plaintiff  can only be look upon as their curate and consequent if punishable for his  contumacy it ought to be by other ecclesiastical censure and not by suspension  ab duty et kindness admit it ought to be take that this rectory be appropriate  to the prebend yet it must be agree on the other hand that the archbishop can  not deprive the prebendary of the rectory and leave he still prebendary and if  so it be conceive he can not suspend he from it suspension be a temporary  deprivation which it be in the archbishop power to make total by continue the  suspension as long as he think fit if therefore the plaintiff be at all  visitable in this case he ought to be so as prebendary and not as incumbent  brown er p of saint John for in such case the rectory must be take to be a  incident inseparable from the prebend and if the plaintiff be visitable as  prebendary it can only be in chapter that as from the declaration this live  appear to be a donative so it appear from the whole record that the plaintiff  in respect of such donative be not visitable by the archbishop all his proceed  be therefore ab beginning in person non judge and void his sentence of  suspension be also null and void nay even his citation be void as be issue  against one who upon the whole of this record appear not to be visitable it be  say in the declaration that the plaintiff offer to plead all the matter  contain in it before the archbishop and to prove the same but that the  archbishop refuse to admit he so to do this be not traverse or deny by the  archbishop plea otherwise than by say the plaintiff refuse to appear and  therefore he pronounce he contumacious and suspend he but this allegation  though inconsistent with the declaration for the plaintiff can not offer to  plead and prove all the matter therein contain nor the archbishop refuse he if  he have not appear yet do not disprove it nor do the plea in that particular  so much as refer to the proceed before the archbishop whereby his allegation  may appear and therefore the demurrer be no confession of it suppose the  plaintiff be guilty of a contumacy for not appear yet if the sentence of  suspension ab duty et kindness be such a sentence as the archbishop can not in  this case lawful pronounce and which from the present record it appear to be  he ought to be prohibit and the judgement already give reverse and that this  be so appear saint because such a sentence can not be give but by the visitor  and as it be manifest from the record that the rectory be a donative it be  equal manifest that the archbishop have not ordinary visitation brown dly the  archbishop can suspend ab duty but where he can appoint one to supply the cure  and it be apparent from this record that he have no such power of appointment  for the nomination and admission of the prebendary be grant by the charter of  king James to the dean and chapter only without make any application to the  archbishop and dly the archbishop can not suspend the plaintiff from this  benefice when it be in the power of the dean and chapter to allot he elsewhere  such part of their live and in such place as they shall think fit and allot  this live to another that these reason be warrant by the declaration which the  court decree to be the only part of the record on which the case turn the  defendant plea be disregard by the court for its manifold defect both in form  and substance and therefore as so many error be apparent in the record it be  hope that the judgement will be reverse on the other side it be say r Raymond  p king that there be two question be in this case saint whether the plaintiff  be visitable as rector of saint John and if so dly whether he be visit in a  proper manner that the first be the principal and main question for if he be  visitable the manner of such visitation belong entire to the ecclesiastical  law and any error therein be to be remedy by appeal as to the plaintiff be  visitable nothing appear from his declaration to excuse he from it he be  rector and incumbent of a church within the archbishop diocese and whatever  may be his title it can not hinder the archbishop from see the cure serve and  that he behave himself proper in his office and though he be seize of this  rectory in right of his prebend yet still be rector and incumbent he may as  such be visit as to what have be insist on by the plaintiff that this be a  donative find by king Henry VIII there be no colour to make this church a  foundation of that king neither be he even founder of the corporation of the  dean and chapter he only translate and change the prior and canon into a dean  and chapter and the whole consequence of that be that all matter test in  respect of visitation as they be before and the archbishop may do every thing  after those letter patent which he may do before it have be hint that the  appropriation of the rectory to the priory do of itself without any thing more  exempt the church from the archbishop visitation but sure there be no real  foundation for such a opinion the rectory still remain a rectory the  appropriator must still be sue as rector and the procuration be still Payable  out of such appropriation to the bishop for visitation that though the dean  and chapter be but one body in law yet their possession may be several and  divide and each of they may bring a action in his own name for his several  possession that brown er p the charter of king James I have only assign a  special share to each one of the body and particular incorporate they for this  purpose that they may thereby have a distinct capacity to sue and be sue for  their several brown possession but this charter do not take away the bishop  power of visitation it only leave it as it be before that the plaintiff may be  visit as prebendary touch his temporal by the dean and chapter for they have  the government of the temporal and may see how he administer the good of the  church but the archbishop alone be to call he to account as to spiritual when  therefore the archbishop come to visit he perhaps he find that the plaintiff  neither officiate himself nor appoint any person to officiate for he in this  case it be the archbishop duty to take care that the cure be well serve and  though he can deprive he because he be prebendary yet he certain may suspend  he and appoint another to officiate in his room and pay such other person out  of the profit for otherwise the archbishop power signify nothing that the  plaintiff own himself to be rector be summon before his ordinary the  archbishop and whatever defence he can have make he ought at least to have  appear and not to say you have no right to visit I for whether the rectory be  in the dean and chapter or in a particular prebendary yet the plaintiff be the  person act and officiate in the cure of soul be visitable and ought to have  appear before the archbishop accord and since he do not he be right suspend  after hear counsel on this writ of error it be order and adjudge that the  judgement give in the court of common plea in Ireland and the several  affirmances thereof shall be affirm and that the record shall be remit to the  end execution may he have thereupon as if no such writ of error have be bring  into the house jour vol p