brown case the dean and chapter OF DUBMN Plaintiffs the KING Defendent in  error saint April Mews dig v will IV c Vict c S short and Mellor Cr oh proc p  note short on c o r r r s c oh inform Shortt p since the statute Ann c S which  allow special plead to a mandamus it seem that a writ of error lie of a  judgement thereon because it be in the nature of a action and cost be give by  the statute for that side which prevail but upon the award of a peremptory  mandamus a writ of error will not lie there be no plea to it and therefore not  in the nature of a judgement wms viner vol p can can the dean and chapter have  for the reason after mention refuse to admit Robert dowgate clerk to a stall  in the choir and a place and vote in the chapter of the say cathedral church  to which he claim a right as arch deacon of Dublin a writ of mandamus issue  out of the court of king bench in Ireland in Michaelmas term direct to the say  dean and chapter set forth that the say Robert dowgate be by William  archbishop of Dublin the true and undoubted patron of the archdeaconry of  Dublin duly collate institute and induct to the say archdeaconry that all  archdeacon of Dublin by letter patent of king Henry VIII grant to the dean and  chapter of the cathedral church of the holy Trinity Dublin and by ancient  custom hitherto use in the say church have enjoy and ought to enjoy a stall in  the choir and a vote and place in all chapter act of the say church accord to  the honour tie prerogative of their dignity But that the say dean and chapter  have unjust deny to the say Robert dowgate not only a stall in the choir but  also a vote and place in the chapter in all chapter act of the say church in  contempt of the king and to the say Robert Dowgates great damage c and  therefore command the say dean and chapter that immediate after the receipt or  sight of the say writ they shall receive and admit the say Robert dowgate to  the stall of the archdeacon of Dublin in the choir and to a vote and place in  the chapter in all chapter act of the say church of the holy Trinity Dublin or  show cause to the contrary  and c the dean and chapter not make any return to  this mandamus the say court of king bench in the same term issue a alias  mandamus direct to the say bean and chapter returnable on Tuesday next after  fifteen day of saint Martin but no return be make to this second mandamus the  court in Hilary term follow issue a pluries mandamus returnable on Wednesday  next after the morrow of the purification of the bless virgin mary to this  three writ the dean and chapter make the follow return videlicet that the say  king Henry VIII by his letter patent under the great seal of Ireland date at  Dublin the that brown of may in the d year of his reign do give and grant to  the dean and chapter of the say cathedral church of the holy Trinity Dublin  and their successor among other thing that the say dean and chapter and their  successor for ever may constitute and ordain statute and ordinance for the  good government of the say church and abrogate and change the same and make  other in their place and that among the statute constitute by the say dean and  chapter for the good government of the say church it be ordain that every  person who ought to have a stall in the choir and a vote and place in the  chapter of the say church shall before he be admit to have a stall in the  choir and a vote and place in the chapter of the say church take his corporal  oath before the say dean and chapter for the time be to yield canonical  obedience to the dean of the say church for the time be and his successor  canonical enter and observe the statute and lawful custom of the say church  and chapter and the secret of the say chapter shall secret keep and further  that the say Robert dowgate on the that of November before the say dean and  chapter who be then in the chapter house in chapter assemble and be ready and  Willing to admit the say Robert dowgate to the stall of the archdeacon brown  er p of Dublin in the choir and to a vote and place in the chapter of the say  church do refuse to take the say oath before his admission thereunto although  to take the same he be then and there require by the say dean and chapter and  do yet refuse for which cause they the say dean and chapter do and do refuse  to admit the say Robert dowgate to the stall of the archdeacon of Dublin in  the choir and to a vote and place in the chapter of the say cathedral church  this return be afterward consider by the say court of king bench in Ireland  they in easter term adjudge the same to be insufficient and not good in law  and therefore order a peremptory mandamus to admit the say Robert dowgate to  his say stall vote and place whereupon in Michaelmas term the dean and chapter  bring a writ of error in the court of king bench in England and after several  argument that court be unanimous of opinion that a writ of error do not lie in  this case and therefore give judgement that the say writ of error shall be  quash but to reverse both these judgement the dean and chapter bring a writ of  error in parliament and on their behalf it be argue c Wearg f not as to the  judgement of the court of king bench in Ireland that the statute or ordinance  of the dean and chapter mention in that return be a very reasonable statute be  make for the good government of the say church and chapter and to enforce  canonical obedience therein and that the oath thereby require be essential  necessary to be take by every member of the chapter before he be admit to be  one of the body in order to manifest and secure his conformity to discipline  and order that it be still the more reasonable as be what be common practice  by other Deans and chapter and body corporate brown both spiritual and  temporal and that the archdeacon be contumacious to the say ordinance in  refuse to comply with so reasonable a request as a qualification it be good  cause for the dean and chapter be refusal to admit he to a stall in the choir  or vote in the chapter and therefore the return ought to have be judge  sufficient but admit it not to be sufficient yet it be humble conceive that a  peremptory mandamus ought not to have be award because a mandamus be not a  proper remedy in this case for the design of grant a mandamus be to admit a  person to a office in order to enable he to bring his action for the profit  and privilege belong to that office and which he can not do till he have be  admit but in the present case it appear by the mandamus itself that dr dowgate  be duly collate institute and induct to the archdeaconry of Dublin and as such  if he have legal qualify himself ought to enjoy a stall in the choir and a  voice and place in the chapter which be privilege belong to the archdeaconry  to which he be entitle he may bring a action against any person who disturb he  in the enjoyment of they as he may bring a ejectment for a house belong to  that office and as to the judgement of the court of king bench in England it  be conceive that a writ of error lie upon a judgement on a mandamus as well as  on any other judgement since otherwise the subject will be deprive of the  benefit of appeal in case where their liberty and property be very much  concern and in no case more than by erroneous judgement on writ of mandamus  whereby not only the real and personal estate and office which every  Englishman enjoy may be much affect but the liberty and privilege of every  city and borough in great Britain and Ireland be very high concern and that  therefore the court ought not to have quash the writ but to have give  judgement on the merit of the return on the other side it be contend p York t  reeve that there war no precedent or judgement to maintain that a writ of  error will lie in this case for that in the award of any mandamus it be not  necessary by law that there shall be a judgement enter of therefore to look at  closely be which be the constant form of enter judgement and it may with as  good reason be insist that a writ of error will lie on the award of the first  or of the alias or pluries mandamus as upon the award of the peremptory writ  or that a writ of error will lie upon the court be deny a mandamus or award a  procedendo in any case which it be conceive will not be pretend that from the  very nature of the present case a writ of error will be vain and fruitless for  a mandamus give no better right to the party who prosecute it than he have  before even though it shall be brown er p obey but his right still remain  examinable at law and triable in a proper action and if in this case the party  sue the writ shall be admit the reverse the award of the peremptory writ upon  a writ of error will not turn he out again beside here be no cost or damage  which the party be adjudge to pay and brown therefore the writ of error can  give the party sue it no benefit to be restore to any thing which he have lose  that if a writ of error will lie in this case it will be attend with very  great inconvenience for by the same reason it will lie upon a mandamus to  swear in churchwarden or to deliver the insignia to the mayor of a corporation  or to make a poor rate and the like which will introduce a great deal of  confusion delay and unnecessary expense that it be humble apprehend if a writ  of error will lie in this case yet the court of king bench in Ireland have do  right in award a peremptory mandamus upon the insufficiency of the return for  that the dean and chapter can not by virtue of any bylaw make by they impose  the oath mention in the return when the charter do not require any such oath  to be take and it will be of mischievous consequence to allow of such a power  but suppose the bylaw to be good yet the return be insufficient because it be  not therein set forth when or by who such bylaw be make that this point be  debate in the argument in the court of king bench in England and also another  point namely whether a mandamus will lie in this case or not but the court  give no opinion as to these point their opinion be clear as to the other point  that the writ of error will not lie after hear counsel on this writ of error  and the unanimous opinion of all the judge present be deliver by the Lord  chief baron that no writ of error will lie upon the award of a peremptory  mandamus with reason for the same it be order and adjudge that the say  judgement give in the court of king bench quash the writ of error returnable  in the same court shall be affirm and that the record shall be remit to the  say court of king bench in England and it be further order that the plaintiff  shall pay the sum of for the cost sustain by reason of bring the say writ of  error jour vol p