case ralph Hawtrey appellant Cassandra daniel widow and other respondent that  may in what case and under what circumstance a person claim title to tithe  must have his right establish at law before he can come into a court of equity  for a account and satisfaction see post case and of this title king Charles  two be seize in right of his crown of the reversion and inheritance of the  abbey of saint Catherine near the city of Waterford in Ireland and among other  thing of the mansion place glebe land and two part of the tithe of Dungarvon  and of the whole rectory of Killbride and Killcollumbe and two part of the  tithe of Fydown lie in the county of Kilkenny expectant upon the determination  of a term brown er p of year grant by king James I to sir Laurence Esmond bart  by his letter patent under the broad seal of Ireland date the that of January  do by way of lease grant set and to farm let unto sir Ellis Leighton knight  the say abbey rectory tithe and premise to hold to the say sir Ellis Leighton  his executor administrator and assign for year to commence in when the former  lease to sir Laurence Esmond expire under the yearly rend of pound S d Payable  at the time and in manner therein mention sir Ellis Leighton by deed poll date  the that of July declare that the say lease so grant to he be in confidence  and trust only and to the use therein after mention that be to say to the use  of himself for year from the enter into possession of the say premise under  the rend of pound per and for the first seven year of pound per and for the  next seven year and of pound per and for the last seven year of the say time  to be pay in current and lawful money of England in Ireland to John then Lord  Berkeley of Stratton his executor administrator or assign over and above the  rend Payable to his majesty for the same and as to the term of year which  shall remain after the expiration of the say year he thereby declare it be  whole in trust for and to the only use and behoof of the say John Lord  Berkeley of Stratton his executor administrator and assign brown king Charles  two by other letter patent under the broad seal of Ireland date the that of  June duly enrol in the court of chancery for the consideration therein mention  grant the reversion of the say rectory and premise to one Edward carry forth  and his heir who by indenture of lease and release date the saint and d of  August in consideration of pound convey the same and all his right and  interest therein to the say John Lord Berkeley of Stratton his heir and assign  for ever Lord Berkeley soon afterward die leave Christian lady Berkeley his  widow and Charles Lord Berkeley of Stratton his old son and heir at law a  infant and by indenture date the that of October between the say Christian  lady Berkeley of the one part and Henry Daniel of the other part recite the  say grant and lease to sir Laurence Esmond and sir Ellis Leighton and sir  Ellis Leightons declaration of trust and the death of John late Lord Berkeley  have make his will date the saint of January whereby he give all his chattel  lease for year and personal estate whatsoever to his say wife and appoint her  sole executrix and recite the before mention grant to Henry carry forth of the  reversion and inheritance of the say abbey rectory tithe and premise and his  conveyance thereof to the say John Lord Berkeley and his heir which reversion  and inheritance be descend to Charles then Lord Berkeley son and heir of the  say John Lord Berkeley a infant and also recite that the say Christian lady  Berkeley in consideration of pound sterling have agree to alien convey and  assign over to the say Henry Daniel his executor administrator and assign all  the right estate interest trust use claim and demand of the say John late Lord  Berkeley of in and to all and singular the premise which she do declare and  undertake have come to her by the will of her say late husband and also for  the same consideration have agree and undertake that the say Charles then Lord  Berkeley shall immediate after attain the age of or in case of his death  before the attain such age his next heir shall alien convey and assign over to  the say Henry Daniel his heir and assign all the say land rectory live  impropriate tithe and premise with their appurtenance in manner therein after  provide and covenant it be witness that in consideration of the say sum of  pound pay by the say Henry Daniel she the say Christian lady Berkeley do grant  bargain sell assign and set over unto the say Henry Daniel his executor and  administrator all the right title estate interest term of year possession  reversion use trust claim and demand which she as legatee or executrix of John  late Lord Berkeley her husband then have or may have in the say land rectory  live impropriate tithe and premise with their appurtenance and all rend and  arrear of rend due or to become due from sir Ellis Leighton to hold to the say  Henry Daniel his executor administrator and assign during the continuance of  the say lease of year grant to brown sir Ellis Leighton and the say Christian  lady Berkeley thereby covenant that her son Charles then Lord Berkeley when of  full age or his next heir shall convey the inheritance thereof to the say  Henry Daniel and his heir in pursuance of this covenant by lease and release  date the d and that of may brown er p between John Lord Berkeley of Stratton  and jane lady Berkeley of Stratton his wife of the first part Christian lady  dowager Berkeley of Stratton mother of the say John Lord Berkeley of the  second part and Richard Daniel gentle of the three part recite the last before  mention indenture and that the say Charles Lord Berkeley be since dead leave  the say John Lord Berkeley his brother and heir whereby the inheritance and  reversion of the say premise become actual vest in the say John Lord Berkeley  party thereto and recite the death of the say Henry Daniel leave the say  Richard Daniel his old son and heir whereby the say Richard Daniel become  entitle to the benefit of the say lastmentioned indenture and that the say  John LordBerkeley be Willing to convey and assure the inheritance and  reversion of the say land and premise unto the say Richard Daniel his heir and  assign in performance of the say recite covenant it be witness that in  performance of such covenant and in consideration of S the say John Lord  Berkeley by the direction of the say Christian lady dowager Berkeley do grant  and convey the say land rectory live impropriate tithe and premise unto and to  the use of the say Richard Daniel and his heir and in order to corroborate and  confirm this conveyance and in pursuance of a covenant therein contain the say  Lord and lady Berkeley on the that of may levy a fine with proclamation in the  court of common plea in Ireland of the say land rectory impropriate tithe and  premise to the say Richard Daniel and his heir by virtue of these conveyance  Henry Daniel and Richard his son enter on the premise and Richard Daniel enjoy  the say rectory and rectorial tithe of the parish of Killcollumbe until his  death on the that of April have by his will devise the say land rectory tithe  and premise to the respondent Cassandra Daniel during her life with remainder  to his daughter Elizabeth Digby since decease mother of the respondent John  Digby and mary MacNaughten since decease mother of the respondent Cassandra  MacNaughten and their heir No claim to the rectory or tithe of Killcollumbe be  set up or pretend to by any of the vicar of that parish or any suit commence  for recover they till when the appellant file his bill in the court of  chancery in Ireland against the respondent Cassandra Daniel Simon Digby and  Elizabeth his wife then live John MacNaughten and mary his wife also then live  the respondent Sydenham snow and Robert snow and several other tenant of land  within the parish of Killcollumbe charge that by letter patent date the that  of June Geo two brown he be present to the vicarage of the church of  Killcollumbe be institute and induct and perform all the requisite to make he  complete incumbent and be the only incumbent have the actual cure of soul  within the say parish he then state the grant of the say several rectory tithe  and premise to sir Laurence Esmond and that king Charles I be seize in fee in  right of his crown of the rend reserve by that lease and of the reversion of  the say rectory by letter under his sign manual and privy signet date the that  of January in the that year of his reign direct to the then chief governor of  his kingdom of Ireland recite that king James I by his instruction for the  good and welfare of holy church in the say kingdom do command that all such  impropriate parsonage as be his inheritance and hold by lease from the crown  shall for ever as such lease expire be thenceforth set to the several curate  and minister of all such church who shall attend the cure of soul and from  time to time be incumbent of the say parsonage they secure to his majesty the  rend duty and service reserve upon such lease which order king Charles I have  confirm by his royal letter date the that of July that notwithstanding his say  majesty be to his great displeasure inform that since the give the say command  by the say letter sundry lease of tithe upon the expiration of former lease or  otherwise have be again grant to layman in breach of his say command his  majesty do by his say letter declare his intention for he and his heir and  successor to give and grant the reversion of all such tithe obventions and  profit and with such reservation only as have be express irrevocable to the  particular church unto which such title do belong and to the several incumbent  which shall happen to be in the say church when such lease shall determine and  to their successor for ever give thereby to such incumbent on the expiration  of such lease full power to enter into possession of the say whole tithe and  charge all officer of the exchequer to receive the same and also require  letter patent under the great seal to be make out for grant the say tithe  brown er p to the use of the say incumbent and their successor for ever then  he state the letter patent of the that January grant the say rectorial tithe  glebe and altarages to sir Ellis Leighton for year which do not efflux in time  till the year and that king Charles two be so seize in right of his crown of  the reversion of the rectorial glebe tithe and altarages of the say several  parish do by letter patent date the that of November grant to John then Lord  bishop of Ossory and his successor among other thing twothird part of the  tithe of the rectory of Dungarvon with the mansionhouse and glebe thereunto  belong and also the say rectory of Killbride and the say rectory of  Killcollumbe and twothird part of the glebe tithe of the say parish of Fydown  in the county of Kilkenny and the reversion right and inheritance of the crown  thereto to hold to the say bishop and his successor for ever to brown the use  of he and his successor in trust for the several and respective incumbent of  the parish wherein the say several rectory tithe and altarages lie and arise  and the successor of such incumbent for ever who have or shall have the actual  cure of soul in the say respective parish and after state that the benefit of  sir Ellis leighton lease become vest in Richard Daniel the respondent  Cassandra late husband and that several action at commonlaw and suit in the  court of exchequer in Ireland have be commence between Robert Watts incumbent  of the church of Fydown and the say Richard Daniel in his lifetime and after  his decease between the say Robert Watts and the respondent Cassandra Daniel  to try the right to the twothirds of the tithe of the say parish of Fydown in  which suit the appellant charge that the say Robert Watts make out and  substantiate his right under the say grant to the bishop of OssoryThe fact be  that upon the hear of that cause on the that of may the court order a case to  be state and send to the court of common plea for their opinion whether  Michael then bishop of Ossory in right of his fee and Watts as derive under he  or the defendant Cassandra Daniel and her daughter and the defendant Robert  and Sydenham snow as derive under they be entitle to the rectorial tithe of  the parish of Fydown this case be state and solemnly argue the court of common  plea on the saint of April certify their opinion that twothirds of the tithe  of the say parish of Fydown the vicarage be admit to be endow with the other  three be grant to the bishop of Ossory and his successor by the letter patent  of the that of November and that Watts the then incumbent of Fydown have the  actual cure of soul be entitle by virtue of that patent to the say twothirds  of the tithe of the say parish whereupon the court of chancery on the d of  June follow establish this right and decree the defendant to account accord  and after state that the right of the incumbent to the tithe of the vicarage  of Killcollumbe be the same with the right of the incumbent to the vicarage of  Fydown and that the church can not be preclude by any act do by the respondent  Cassandra daniel husband or those under who he derive his title during the  subsistence of the say term for year or pen the say suit but that the say suit  be commence with intent to bring to a trial the title of the bishop of Ossory  and the incumbent of the say several parish under the say letter patent and  that they shall have the same effect as to all the rectory claim by the bishop  and the respondent Cassandra daniel late husband under the say title as it  have to the say rectory of Fydown and that the title of the appellant and his  successor incumbent of the say parish in right of the church shall not be bar  or prejudice by any default in the trustee the bishop of Ossory or the late  incumbent of the say parish the appellant by his say bill pray that his title  tonight be establish and he be quiet in the enjoyment of the say rectorial  tithe or if the court shall think proper that while the title be under  consideration the say tithe may be set annual by the proper officer and the  yearly rend Payable for the same may be bring into court for the brown use of  the person who shall appear entitle and that he may have a account the  respondent Cassandra Daniel and the defendant Simon Digby and Elizabeth his  wife and John MacNaughten and mary his wife put in their joint and several  answer to this bill state their right to the say rectory and tithe of the  parish of Killcollumbe in the manner before mention that they claim the same  under the will of the respondent Cassandra daniel late husband and thereby put  in issue the brown er p appellant title but do not set forth all their  objection thereto be advice that the appellant right to the say tithe if any  must be prosecute in a court of commonlaw and not in equity and that the  respondent will have the benefit of all their objection when the appellant  right come to be try at law they therefore insist on the benefit of the fine  levy by Lord Berkeley and his wife and upon which the proclamation have run  and upon a act of parliament pass in Ireland in the that year of king George I  for the more effectual quiet and settle vexatious suit at law and admit the  several action and suit charge by the bill in relation to the tithe of the  parish of Killcollumbe which be no way in issue in those suit the respondent  Sydenham snow by his answer disclaim any right to the say tithe but Robert  snow admit he be tenant to the respondent Cassandra Daniel of the rectorial  tithe of the parish of Killcollumbe and Killbride by lease grant to he thereof  in the bishop of Ossory by his answer admit that the appellant have the actual  cure of soul within the say parish that he believe the crown have grant the  reversion of the rectorial tithe of that and other parish in the bill name to  one of his predecessor bishop of Ossory that he have not be Willing to  commence any suit at law in his name for recovery of the rectorial tithe of  the say parish of Killcollumbe believe the plaintiff have good remedy for  recover the same in his own name but be Willing to act as the court shall  direct the cause abate by the death of the say Elizabeth Digby mary  MacNaughten and Edward Lord bishop of Ossory be duly revive against the  respondent John Digby and Cassandra MacNaughten their infant son and daughter  and heir at law of the say Elizabeth and mary who by their guardian put in  their answer litigate the appellant right and the succeed bishop answer to the  same effect as his predecessor the appellant examine several witness to prove  his institution and induction performance of divine service and have the only  cure of soul within the parish and to prove the yearly value of the tithe a  interlocutory order be make whereby the defendant be at liberty to read at the  hear the bill answer plead and proof in the suit between Robert Watts and the  respondent Cassandra Daniel concern the tithe of the rectory of Fydown brown  save just exception and publication have pass the cause come on to a hear  before the Lord chancellor of Ireland on the that of December and that of  January on which last day his lordship be please to order that the appellant  bill shall be retain for a year and a day and that he shall be at liberty to  ascertain big tithe at law if he shall think proper and also to make use of  the name of the bishop of Ossory as plaintiff in any action to be bring from  this decree the appellant appeal insist c Pratt c York that the court ought to  have establish his title and to have quiet he by perpetual injunction in the  enjoyment of the tithe in question and to have grant he the full relief pray  by his bill or otherwise to have direct a issue or send a case to a court of  law as be do in the former suit institute by Watts in order to have determine  the appellant legal title to the say tithe and in support of this appeal it be  argue that in all case as well where the interest of the crown as that of a  subject be concern the first grant not otherwise impeach be to take place that  the intention of the crown to grant these rectory to the church can no more be  deny than the priority of the grant that there be no deceit upon the crown the  king have a right and intend to grant his whole reversionary interest and the  omission of notice of the reversionary lease to sir Ellis Leighton by which  the operation of the grant be so much long suspend be of no prejudice to the  crown though it be to the church and have there be any informalities or  misrecitals in the grant they be cure by the several non to stand before  clause that the subsequent grantee who find himself sole upon the suppose  invalidity of the prior patent have neither the merit of a purchaser without  notice the prior grant be enrol nor of a purchaser for a valuable  consideration the consideration if any move from progers to the crown be very  uncertain but the consideration pay he by Lord Berkeley plain appear to be no  more than pound and Lord berkelei interest be again sell after his death for  pound include the whole benefit of the year lease and the payment of pound  part of that purchase money to Lord berkelei widow and executrix and only the  remain pound to his heir as plain indicate that the lease rather than the  reversion be the brown er p immediate object of the purchase nor have the  respondent the merit of long and quiet possession the line of be year before  the title of the bishop accrue in possession and be levy mere to bar the dower  of the young lady Berkeley and the right though not the possession have be  litigate from that the appellant have original a right to the aid of a court  of equity to compel a execution of the trust from the bishop of Ossory and the  relief be consequential have the case require it a issue may have be direct on  the very right or a case state for the opinion of a court of law as a mean of  assist the conscience of a court of equity in make its decree without leave  the appellant brown general to law but the court of law have already determine  the legal question upon the very case state against the same defendant and  that in a solemn manner though not in the same cause or upon the same  individual tithe and those proceed have be read in this cause without  objection to the read they or to the opinion of the judge the present decree  do either a hard thing or a vain thing a hard one if the nature of the action  to be bring lie the appellant under difficulty in point of form in bring the  merit of his case to a issue at law and a vain one if nothing but the same  question be to be determine again that there be no matter of fact in this case  necessary to be ascertain by a jury the whole depend on the point of law send  to the common plea in watts cause arise not upon doubtful fact but upon the  construction and operation of grant on record admit alike by both party that  the appellant seek a speedy and final determination upon the true question of  right if the respondent prevail a scene of litigation will be open alike  fruitless and without end unless which must in that case be the event the  appellant shall abandon the unequal contest whereby the benefit intend by the  crown to the church will be elude and the grant to progers in deceit of the  crown establish on the other side it be contend g Perrot a forester that the  title of both party be mere at law the appellant shall have bring his action  and try the right there before he come into a court of equity which can not  determine it each party claim under several letter patent from the crown those  of to the bishop of Ossory the ground of the appellant claim be liable to many  objection determinable only at law as whether the king be or be not full  apprise of his right and so be or be not deceive in his grant whether the  reservation of rend by the patent do or do not pursue the king letter and the  order of council thereon which be the authority for pass the patent these and  several other question make by the respondent in opposition to the appellant  title be cognisable at law only upon a proper action to be bring there that  the respondent who claim as purchaser for a valuable and large consideration  under another patentee who be himself a purchaser also for a valuable  consideration from the crown be not to be deprive of any one advantage which  the law will give they in support of their right and beside the above  objection to the appellant title they have a undisturbed possession of the  premise in question for near year a fine with proclamation and the Irish  statute of Geo I c for quiet possession to urge in their defence and be a  court of equity to interpose it must upon its own principle do it rather for  strengthen than weaken that defence what pass in another cause and relative to  another parish be total immaterial for if a proper defence be not make or a  improper direction be there give the respondent be not at all bind brown to  submit to the like in the present suit that the court of chancery intermeddle  so far as to direct a issue or send a case to a court of law for determine the  title will have be high improper and injurious to the respondent as in either  instance they may have be preclude from the benefit of several of their legal  objection a new trial in case they be wrong will be their only remedy but in a  legal proceed they can not only rectify mistake in fact but in law also by  writ of error from one court to another the appellant likewise will have the  same benefit and if there can be the least doubt of the bishop readiness to  lend the appellant his name for the purpose of bring a action the court of  chancery may order it the bishop be a trustee be the only pretence the  appellant can invent for a equitable jurisdiction but even that vanish on  consider that the bishop be a trustee only of a litigate title and that the  court by retain the bill have reserve to itself the power of direct the  execution of the trust after the establishment of the title at law brown er p  after hear counsel on this appeal it be order and adjudge that the same shall  be dismiss and the decree therein complain of affirm jour vol p