case robert shirt plaintiff Charles car defendant in error that February Mews  dig v benefice Act Vict c S on the division of a old parish into three new  parish by act of parliament it be provide that the right of patronage and  presentation to the say three church shall belong to the dean and chapter of d  and their successor for ever in such manner as the presentation to the rector  of the old parish do belong to they and not otherwise one of these new parish  become vacant the dean and chapter nominate I S to the cure but do not present  he to the ordinary for institution hold that this rectory be presentative and  not a donative that the word presentation be a know term of the law and when  speak of a benefice with cure of soul as in this case import the patron  present his clerk to the ordinary to be admit and institute and that the  subsequent relative word videlicet in such manner as the presentation to the  rectory of the old parish do belong to they and not otherwise refer only to  the right which the dean and chapter have of put in a incumbent but not the  manner in which it be to be do in easter term the plaintiff bring a ejectment  in the court of common plea in Ireland for the rector of the parish of saint  Paul in the county of the city of Dublin and twenty acre of land in that  parish on the demise of William Williamson clerk to which the defendant have  plead not guilty and issue be join the cause be try at the bar of the say  court on the that of November follow on which trial the plaintiff give the  follow evidence videlicet that king Henry VIII by letter patent date the that  day of may in the d year of his reign recite that there be and time out of  mind have be a episcopal see in the metropolitan church of the holy Trinity in  Dublin and also that there be and time out of mind have be in the same church  a monastery or priory consist of a prior and convent do thereby transpose and  change the priory into a dean and chapter and make the prior dean one of the  monk precentor another brown chancellor another treasurer and six other vicar  choral and incorporate brown er p they by the name of the dean and chapter of  the cathedral church of the HolyTrinity Dublin now call Christ church with  power to purchase and sue and give they a common seal with 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 he also 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 James I by letter patent date the that of June in the d year of his reign  change the six vicar choral part of this chapter into three canonical  prebendary allot to each of they possession and assign to one of they call the  prebend of saint Michan near Dublin the rectory of that name and grant that  the dean and chapter may choose these prebendary and put they in possession  without application to the archbishop or any other for licence or consent in  that behalf That by a act of parliament pass in Ireland William III this  parish of saint Michan near Dublin be divide into three several parish to be  call the new parish of saint Michan the parish of saint mary and the parish of  saint Paul each appoint to be separate and independent of the other and each  to have all parochial right and privilege as distinct parish and it be thereby  enact that for each of the say three parish there shall be a several parochial  church and a rector or minister several and independent of the other and  succeed rector or minister for ever who shall each of they respective have  cure of soul in the say respective parish and the due and profit arise within  each the act then assign the district of saint Paul and direct the building of  a church which shall be a separate parish church call saint Paul and appoint  Ezekiel Burridge the present and immediate rector or minister of the say  church subject nevertheless to the visitation and power of the ordinary of the  diocese in such manner as the rector of the old parish be and no otherwise and  to such other canon rule and law ecclesiastical as rector or minister of  parish usual be or of right ought to be subject or liable to then the act in  like manner set out and constitute the rectory of saint mary and enact that  the rest of the old parish of saint Michan shall be the new parish of saint  Michan and that the then parish church of saint Michan in the old parish shall  be call the prebend of saint Michan belong to the cathedral church of Christ  church Dublin as the rectory of the old parish be and that John Clayton shall  be the present rector or minister of the say church and shall be a prebendary  of the cathedral church of Christ church Dublin as the rector of the say old  parish be subject to ordinary jurisdiction canon brown etcetera ut above then  follow this clause and it be hereby further enact that the right of patronage  of the say rectory and of presentation to the say three church on the  avoidance of each of they respective by the death session or removal of the  present incumbent hereby appoint for the same shall belong unto the dean and  chapter of Christ church in Dublin and their successor for ever in such manner  as the nomination or presentation to the rectory of the old parish of saint  Michan do belong to they and no otherwise that the parish church of saint Paul  be build accord to the say act and that Ezekiel Burridge the first incumbent  name in the act die on the that of August whereby the church become vacant and  be so vacant the say dean and chapter of Christ church do on the same that of  August choose nominate admit and constitute the say William Williamson clerk  the plaintiff lessor to be rector of the say church of saint Paul and on the  that of August give a instrument under their common seal to induct he into the  actual possession of the say rectory and on the that of October he be  thereupon induct accord that Williamson before admission videlicet on the that  of August make and subscribe the declaration of uniformity accord to the Irish  statute of and Charles two and take make and subscribe the oath and  declaration require by the late act before the dean and chapter which they  certify under their common seal and that he do the same before the archbishop  of Dublin on the that of September which the archbishop certify under his seal  that within two month after Williamson be admit and induct he on Sunday  morning of the that of November in the say parish church read the common  prayer and make his brown er p declaration accord to the say act of uniformity  and after morning prayer read open and public the say several certificate of  the archbishop and of the dean and chapter in presence of the congregation  there assemble in time of divine service and that after and before noon of the  say Sunday the that of November the defendant shut the say church door so that  the lessor of the plaintiff and some other then assemble in the say church can  not go out and that in the afternoon the lessor desire the defendant to open  the church door at the usual hour of prayer that the parishioner may come in  to prayer which the defendant deny and thereupon the lessor begin at the usual  hour in the afternoon of the same day to read the evening prayer appoint by  the say act and book of common prayer but be stop by the defendant with his  hand cover Mr williamson eye and mouth and snatch from he the book so that Mr  Williamson can not in the afternoon read the prayer or the say declaration or  certificates That the defendant hold Mr Williamson out of possession of the  say church ever since and that on the that of may the dean and chapter under  their common seal style themselves the undoubted patron of the rectory of  saint Paul Dublin do as be brown ordinary of that place allow and approve this  to be a lawful impediment That in Michaelmas term Mr Williamson take the oath  to the government and subscribe the declaration accord to the statute in the  court of common plea in Ireland and on the saint of march he make the demise  to the plaintiff as in the declaration this ejectment be bring to try the  right to the say rectory of saint Paul as between the lessor of the plaintiff  thus put in by the dean and chapter and the defendant who be collate by the  archbishop and upon the above evidence the defendant counsel insist upon the  four follow point I that this new erect rectory of saint Paul whereof the  patronage be in the dean and chapter of Christ church Dublin be presentative  and that the incumbent ought to be present to the archbishop of Dublin as  ordinary of the diocese and be institute by he which the lessor of the  plaintiff not have be he be not lawful incumbent of the parish church of saint  Paul but the court of common plea rule the evidence sufficient to prove it a  donative and that the incumbent be elective and collative by the dean and  chapter and not presentative to any other ordinary and that therefore the  plaintiff lessor come in by the nomination and appointment of the dean and  chapter be the legal incumbent two that this impediment admit it to be a legal  impediment ought to have be allow by the archbishop of Dublin as ordinary of  the diocese accord to the act and not by the dean and chapter III that no  proof of a impediment of this nature by witness ought to be admit IV that the  fact be not a sufficient impediment in law but it be rule by the judge of the  court of common plea that the impediment be a sufficient excuse for the  lessors not read the common prayer in the afternoon that the dean and chapter  be ordinary and their certificate good and not the archbishop that the  evidence for the plaintiff be sufficient and therefore they direct the jury to  find a verdict for he accord the jury bring in a general verdict for the  plaintiff which occasion the defendant to bring a bill of exception contain  the several matter before state and upon which the four point above mention  arise in Hilary term the defendant bring a writ of error in the court of king  bench in Ireland to reverse the judgement of the say court of common plea and  have assign for error the say bill of exception the judgement after several  argument be reverse whereupon on the that of December the plaintiff bring a  writ of error in the king bench in England to reverse the judgement of  reversal give by the court of king bench in Ireland and in Trinity term all  the judge of that court unanimous give judgement upon the first point only and  which brown be the chief point in the cause videlicet that the say rectory of  saint Paul be presentative and not a donative and therefore affirm the  judgement of reversal but to reverse this judgement of affirmance the  plaintiff bring a writ of error in parliament and on his behalf it be insist t  Lutwyche c Phipps that brown er p the intent of the private act of parliament  for divide the parish of saint Michan into three parish be to provide only for  the ease and good of the parishioner it appear by the recital of the act that  by the increase of building in the old parish the cure be become too great for  one single minister and the church not sufficient for so great a number of  inhabitant but it be never intend to make a alteration in in the right of the  dean and chapter in who gift the church be or in their manner of give it which  before the act be always without presentation to or institution by the  archbishop that there be a express clause in the act that the presentation to  the three church videlicet the old and the two new one shall belong to the  dean and chapter and their successor for ever in such manner as the nomination  or presentation to the rectory of the old church do belong and not otherwise  and the same act also provide that the new rector shall be subject to no other  power of the ordinary than the old rector be and therefore as the rector be  not presentative before they ought not to be so now nor be it now pretend that  any presentation be necessary to the old church and yet this be one of the  three church mention in the above clause of the act as to the objection that  the lessor of the plaintiff have not qualify himself by read prayer etcetera  the defendant in the ejectment though it do not appear that he have any title  endeavour to take advantage of his own wrong by hinder the lessor of the  plaintiff from read prayer and keep he by force and violence out of the church  which make it impossible for he to perform those duty and therefore it be hope  that the judgement give in the court of common plea in Ireland will appear to  have be well give and consequent that the judgement give contrary thereto will  be reverse on the other side it be contend n Lechmere r Raymond that if any of  the above four point be with the defendant judgement ought to be affirm for in  that case the plaintiff lessor have clear no title upon which he can recover  now the first of these point namely that the rectory of saint Paul be  presentative and that without a presentation to and admission and institution  by the archbishop the lessor of the plaintiff can not be entitle to the  rectory in question be apprehend to be so clear that it be not necessary to  trouble their lordship with any thing upon the three other point though even  as to they the defendant insist that the law be in his favour for the act of  parliament after have divide the old parish of saint Michan into three several  parish and have sever those of saint Paul and saint mary from the three which  still continue annex to the prebendary brown enact that the right of patronage  of the say rectory and of presentation to the three church shall belong to the  dean and chapter etcetera that the word presentation be a know term of the law  and when speak of a benefice with cure of soul as in this case import the  patron present his clerk to the ordinary to be admit and institute and that  the subsequent relative word videlicet in such manner as the nomination or  presentation to the rectory of the old parish of saint Michan do belong to  they and not otherwise in which word the very act distinguish between  nomination and presentation refer only to the right which the dean and chapter  have of put in a incumbent but not to the manner in which it be to be do that  before this act a clergyman be appoint prebendary of saint Michan become  rector of the parish church but since the act the prebendary be only to have  one of the three church videlicet the church of saint Michan and therefore by  now elect and appoint a prebendary it be impossible this church of saint Paul  can be fill and yet in that manner before the act the nomination or  presentation to the say church belong to the dean and chapter after hear  counsel on this writ of error it be order and adjudge that the judgement give  in the court of king bench in England in affirmance of a judgement in the  court of king bench in Ireland whereby a judgement for the plaintiff in  ejectment in the court of common plea in that kingdom be reverse shall be  affirm and that the say writ of error with the transcript of the record shall  be remit to the court of king bench in England to the end the say Charles car  may have execution of the say judgement as if no such writ of error have be  bring into the house jour vol p brown er p