brown case huge MONTGOMERY plaintiff Charles Dempsey defendant in error that  may Geo III c Geo IV c Vict c a clergyman live be not a office civil or  military within the statute Ann c to prevent the further growth of popery and  therefore upon the trial of a ejectment bring by a parson for part of the  glebe it be not hold incumbent upon the plaintiff to prove that his lessor  have take the oath and receive the sacrament accord to the direction of that  statute on the d of march Charles Dodd be collate to the vicarage of the unite  parish of Drumlease and Kilarga in the county of Leitrim by the bishop of  Kilmore the patron William hansard the former vicar be remove to other live on  the that of the same month he be induct and on the that read his assent and  consent soon after his induction Mr Dodd find the glebe land of the say unite  parish in the possession of the plaintiff in error and therefore in Trinity  term he by the say Charles Dempsey his lessee bring his ejectment against  Montgomery in the court of exchequer in Ireland for recovery of the say glebe  land to which he appear and plead the general issue not guilty on the that of  August this ejectment come on to be try at the assize when the say Charles  Dempsey to show the say Charles Dodd his lessor to be legal incumbent of the  say unite parish prove his collation and induction his read his assent and  consent and that the land for which the ejectment be bring be the glebe land  of the say parish and which be admit so to be by the say Hugh Montgomery and  his counsel and the jury after a very full hear bring in their verdict in  favour of the say Charles Dempsey but the say Hugh Montgomery counsel then  insist that the say Dempsey as lessee of the say Charles Dodd to entitle he to  recover the say grebe land must show that the say Charles Dodd his lessor have  take the oath and receive the brown er p sacrament as direct by a act make in  Ireland in the second year of the reign of queen Ann entitle a act against the  further growth of popery and though Dempsey be prepare to show that the say  Charles Dodd have take the oath and receive the sacrament yet the court be of  opinion that the act only require person in civil and military employment and  not person in ecclesiastical office to qualify themselves as thereby direct  that point be at the request of Montgomery counsel save to be speak to before  the judge upon their return to Dublin accord the point so save be afterward  full speak to before the judge by Montgomery council the same be overrule  whereupon a bill of exception be tender set forth that upon the trial of the  issue join as aforesaid the say Charles Dempsey to maintain and prove the  aforesaid issue give in evidence to the jury that the town and land of brown  Killany Kinaragh Coneghill and Geskenagh be part and parcel of the glebe of  the say parish church of Drumlease and Kilarga and that the bishop of Kilmore  to who the advowson of the vicarage of the say church belong on the d of march  collate the say Charles Dodd to the say vicarage which be then vacant and that  the say Charles Dodd by virtue of the say collation be induct and put into  possession of the say vicarage on the that of march and that the say Charles  Dodd on Sunday the that of march in both the say parish church before the  congregation then and there assemble read the declaration of his assent and  consent accord to the form of the statute in that case make and provide upon  which the counsel for the say Hugh Montgomery upon the say trial insist for  matter in law that the say Charles Dempsey upon the say trial ought to have  give in evidence to maintain his say issue that the say Charles Dodd his  lessor after his collation to the say vicarage have take the several oath and  public make and repeat the declaration appoint or require to be take make and  subscribe within the kingdom of Ireland and that he have subscribe his name to  the say oath and declaration and further insist that the say Charles Dempsey  to maintain the say issue ought to have give in evidence upon the say trial  that the say Charles Dodd have receive the sacrament of the lord supper accord  to the usage of the church of Ireland in some public church upon a Sunday  immediate after divine service and sermon accord to the statute in that case  make and provide but notwithstanding which the judge declare to the jury that  the say Charles Dempsey be not oblige to give in evidence to the jury that the  say Charles Dodd have take the oath aforesaid or make or repeat the  declaration aforesaid or subscribe his name to the say oath and declaration or  that he have receive the sacrament in manner and form aforesaid and upon which  the jury bring in their verdict for the say Charles Dempsey and therefore and  because the judge have not declare it for law to the jury that the say Hugh  Montgomery be not guilty of the trespass aforesaid in the declaration  aforesaid mention and for that the matter in the say bill of exception mention  do not appear upon the record of the say verdict the say Hugh Montgomery have  put such his exception into write by this bill of exception the defendant in  error be delay near a whole year but on argue the same in the court of  exchequer in easter term judgement be give for the say Charles Dempsey  whereupon the plaintiff in error for further delay bring his writ of error  from the say judgement returnable into the exchequer Chamber where after  another year delay the judgement be in Trinity term affirm and now as his last  resource Mr Montgomery bring a writ of error in parliament in support whereof  it be say t Parker t Bootle that by a act pass in Ireland Elizabeth it be  inter alian enact that all and every person and person that at any time  thereafter shall brown be prefer promote or collate to any archbishopric  bishopric or to any other spiritual or ecclesiastical benefice promotion  dignity office or ministry in that kingdom before he or they shall take upon  he or they to receive use exercise supply or occupy any such archbishopric  bishopric promotion dignity ministry office or service shall make take and  receive the oath of supremacy which be therein set forth before such person as  shall have authority to admit any such person to such office ministry or  service or else before such person or person as by her majesty her heir and  successor by commission under the great seal of England or Ireland or by the  Lord deputy or other brown er p governor or governor of Ireland by letter  patent to be make by his or their warrant under the great seal of that kingdom  shall be name assign or appoint to William minister the say oath that by a act  of parliament make in England William and mary it be enact that so much of the  say former act as relate only to the take of the say oath of supremacy shall  be repeal and that instead of the say oath all person that shall after the  saint day of march then next ensue be admit into any office or employment  ecclesiastical or civil or come into any capacity in respect or by reason  whereof they shall have be oblige to take the say abrogate oath in the say  former act mention shall take the oath and make and subscribe the declaration  by this act appoint in such manner at such time and before such person as they  shall or ought to have take the say former oath by virtue of the say former  act as if the same have not be abrogate as aforesaid that it be therefore  incumbent upon the say Charles Dodd the lessor of the plaintiff to have first  take the say oath and subscribe the say declaration as a previous condition  and a necessary qualification without which he can have no right or title to  the say glebe land or any power to demise the same and the plaintiff ought to  have prove upon the trial that his lessor have take the oath and subscribe the  declaration as by law require for it will be a precedent of the most dangerous  tendency in Ireland if by any other construction than what the express word of  these statute plain import ecclesiastical person shall upon their respective  promotion be dispense with or exempt from give the aforesaid test and  necessary assurance of their fidelity and allegiance to his majesty and his  government and the mischief will be equal great if they shall not be oblige to  prove their have do so it be a matter rest entire within their own knowledge  and what those who contest their right to the possession of their live be  ignorant of and therefore the proof of the want of such necessary  qualification ought not to be throw upon they for all which reason it be hope  that the judgement in Ireland will be reverse and that judgement will be give  for the say Hugh Montgomery with cost for the defendant in error it be say I  strange n fazakerly that there can be no doubt but that the land in question  be the glebe land brown belong to the vicarage and that they do not belong to  the plaintiff in error there be likewise no question but that the bishop of  Kilmore be patron of the vicarage that as such he present Mr Dodd thereto and  that the same be then vacant nor be there any dispute touch dodd be duly  collate to and induct into this live that he duly read his assent and consent  and that he be still in possession and officiate as vicar thereof the single  point save at the trial be whether a clergyman live be a office civil or  military within the act Ann against the further growth of popery or if it be  whether the plaintiff be oblige upon the trial to show that his lessor have  take the oath and receive the sacrament accord to the direction of that  statute as to the first part of this question it be insist that a clergyman  live be not a office civil or military within this statute for though the  station of a clergyman may in contradistinction to a military employment be  call a civil one yet his live can not be comprehend within the meaning of the  act so as to be call a civil office for no spiritual promotion can be  comprehend within the word civil or military and if it have be mean to have  include spiritual promotion within this act they will have be express mention  in it as they be in several other statute which comprehend office  ecclesiastical civil and military the civil magistrate be not intend to  include the ecclesiastical office but the office intend by the statute be such  as immediate flow from the grant of the crown and be public trust for the  advancement of justice and defence of the realm and not spiritual promotion  and as to the second part of the question it be apprehend that even if  ecclesiastical promotion have be include in this act yet the defendant in  error be under no necessity upon the trial of the ejectment to have prove that  his lessor have comply with the direction of the act because the lease on  which this ejectment be bring be make the that of April within less than a  month after induction which be on the that of march precede and this induction  be the act which give the lessor a right to the glebe whereas the statute give  he three month after induction to take the oath and receive the sacrament  beside the only issue before the jury be whether Charles Dodd at the time of  make the lease brown er p can give the lessee such a right as will entitle he  to enter for if his right of entry be then good no subsequent act or neglect  of his lessor can hinder he from recover the defendant however be ready to  have prove his lessors have take the oath and receive the sacrament but the  court will not permit he to do it as be unnecessary but the counsel for the  plaintiff in error find that the statute Ann which be the only one insist on  at the trial and upon the argument in the court of exchequer and particular  mention in the bill of exception will not serve their purpose do in the  exchequer Chamber insist that by the statute brown and William and mary Mr  Dodd must have take the oath before he can receive use or exercise his  promotion this however be a question never make before the court which first  try the cause and therefore ought not to be make afterward beside by this  statute the oath of supremacy mention in the statute Elizabeth be abolish and  other oath be therein substitute in the room of that and in fact the defendant  in make out the title of Mr Dodd his lessor upon the trial do show under the  hand and seal of the bishop of the diocese that he have take the oath pursuant  to this statute of William and mary and those instrument be give in evidence  upon the trial and be peruse by Montgomery counsel but upon the argument in  the exchequer Chamber the Lord chancellor and chief justice be of opinion that  on the bill of exception no statute can be insist upon but that of Ann it be  the only statute therein mention upon which there be but one single point to  be consider and that the word of the bill of exception that the say Charles  Dodd post comparison shall have take the oath can not mean or intend the  statute of and William and mary which be ground on the statute of Elizabeth  require the oath to be take before collation and that even in this statute of  William and mary there be no mention make of any penalty disability or  forfeiture on the neglect of take the oath thereby prescribe it be therefore  hope that the judgement will be affirm with exemplary cost after hear counsel  on this writ of error and the exception state in the bill of exception appear  to be ground on the act of parliament make in Ireland in the second year of  the reign of queen Ann entitle a act against the further growth of poperty it  be order and adjudge that the judgement give in the exchequer Chamber affirm  the judgement of the court of exchequer shall be affirm and that the  transcript of 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 and it be  further order that the plaintiff in error shall pay to the defendant in error  pound for his cost sustain by reason of the bring the say writ of error jour  vol p