XXI VICTORIA. 1859. Still ax pic The Judges who usually sat in Banc in this term, were: COCKBURN, C. J. WILLES, J. THE EARL OF SHREWSBURY v. SCOTT and Others. JAMES ROBERT HOPE The Duke of S., in 1700, settled lands to certain uses. After his death, viz. in 1718, his heir,by a settlement, which was confirmed by a private act of 6 G. 1, c. 29, intituled "An act for annexing the late Duke of Shrewsbury's estate to the earldom of Shrewsbury, and confirming Gilbert Earl of Shrewsbury's settlement in order thereto, and for other purposes therein mentioned," whereby the settled estates were rendered inalienable by any future tenant-in-tail, but with a proviso that any issue male taking under the act might aliene, on his making the declaration and taking the oaths prescribed by the 30 Car. 2, c. 2, and 11 & 12 W. 3, c. 4, within six months after attaining the age of eighteen, and continuing a Protestant,-conveyed the same lands to uses in some respects different from and inconsistent with those of the settlement of 1700: Held, that, assuming the settlement of 1700 to have been left as a subsisting settlement so far as its provisions were reconcileable with those of the settlement of 1718, the latter (in conjunction with the act) must be considered as the dominant settlement; and, consequently, that the removal of the disabilities of Roman Catholics by subsequent public statutes did not destroy the efficacy of the parliamentary settlement, so as to enable a tenant-in-tail under the first settlement to bar the entail and dispose of the estate without complying with the conditions imposed by the private act. Held also, that the acts of parliament imposing disabilities upon Roman Catholics did not prevent persons of that persuasion who were legally in possession of land from alienating it; and therefore that the enactments of the estate act of 6 G. 1, c. 29, were not to be considered as intended to enforce the general law of the realm, and consequently were not affected by the subsequent acts which removed the disabilities which the general law had formerly imposed upon Roman Catholics. Where the performance of an act is made a condition precedent to the exercise of a power, and such performance subsequently becomes by act of the law impossible, it does not follow that the power may be exercised without performance of the condition. Where, therefore, a tenant-in-tail had, under a proviso in an estate act, power to aliene lands on condition of his making the declaration and taking the oaths prescribed by the 30 Car. 2, c. 2, and 11 & 12 W. 3, c. 4, within six months after attaining the age of eighteen, and continuing Protestant, and the statutes requiring the declaration and oaths were afterwards repealed-Held that the only effect of such repeal was, that the power enabling the issue in tail to aliene could not take effect. An estate act must be carried into effect according to the intention plainly and clearly expressed therein, and cannot be impeached after the estates have been dealt with for a century and a half under it, by a suggestion that the proper parties were not before the legislature, or that the legislature were imposed upon. [The judgment affirmed in the Exchequer Chamber, post, p. 221.] THIS was an action of ejectment brought by the plaintiff to recover the mansion of Alton Towers, and certain lands situate in the township of Farley; in the parish of Alton, in the county of Stafford. *2] The plaintiff claimed the said mansion and lands as being entitled thereto under the 2d section of an act of 6 G. 1, c. 29, intituled "An Act for annexing the late Duke of Shrewsbury's estate to the earldom of Shrewsbury, and confirming Gilbert Earl of Shrewsbury's settlement in order thereto, and for other purposes therein mentioned." See the statute, post, p. 64. The following admissions were entered into before the trial by the defendants' attorneys, "1. That the plaintiff is issue male of the body of John the first Earl of Shrewsbury. "2. That Gilbert Earl of Shrewsbury (named in the 2d section of the 6 G. 1, c. 29) died in 1743 without issue male; and that John Talbot (named in the same section of the same act) died in 1743 without issue male. "3. That George Talbot, named in the same section of the said act of parliament, died in 1733; and that the issue male of the said George Talbot became extinct upon the death of Bertram Arthur, the last Earl of Shrewsbury, on the 10th of August, 1856. "4. That, upon the death of the said Bertram Arthur Earl of Shrewsbury as aforesaid, the title, honour, and dignity of Earl of Shrewsbury did by virtue of the letters patent of creation of the said earldom (made and granted by King Henry the Sixth to the said John first Earl of Shrewsbury and the heirs male *of his body) descend and come to the plaintiff, who then succeeded to and inherited the said earl *3] dom. "5. That the plaintiff has been duly summoned to parliament and taken his seat as Earl of Shrewsbury; and that it shall not be necessary for the plaintiff at the trial of this cause to prove his pedigree from the said John first Earl of Shrewsbury, or to give any further or other evidence in proof of the facts and matters above admitted." The following admissions were also made on the part of the defendants at the trial, "That the lands described in the schedule hereunder written, being the lands sought to be recovered in this action, are situate in the township of Farley, in the parish of Alton, in the county of Stafford, and are parts of the estates in that county mentioned or referred to in the 6 G. 1, c. 22, intituled, &c.; and that the duke in the said section referred to, at the time of his decease, had an estate of inheritance in possession, reversion, remainder, or expectancy, in the said premises; and that the said premises were at the commencement of this action, and still are, in the actual possession of the defendants or some of them, and were not subject to any estate or interest under which the right to possession might be outstanding in some person not party to this action: and that it shall not be necessary for the plaintiff at the trial of this cause to give any further or other evidence in proof of the facts and matters above admitted." The schedule above referred to described the several premises sought to be recovered, with their respective quantities, and the names of the occupiers. The following admissions were also made at the trial, on the part of the plaintiff," That the said Gilbert Earl of Shrewsbury, John Talbot, and George Talbot, mentioned in the 2d section of the 6 G. 1, c. 29, were Roman Catholics; and that search had been made in vain [*4 for all documents connected with the residence of Gilbert Earl of Shrewsbury at the colleges of Jesuits abroad, in Belgium and in France." It was also agreed that the pedigree set out on next page should be used as evidence at the trial of the cause, for the purposes of the action. The plaintiff gave in evidence the following documents: 1. The settlement on the marriage of the Hon. George Talbot with Mary Fitzwilliam, dated the 3d and 4th of March, 1718. 2. The Shrewsbury Estate Acts, 6 G. 1, c. 29, 43 G. 3, c. 40, and 6 & 7 Vict. c. 28. 3. The counterpart of a lease of mines of copper, lead, &c., in the townships of Stanton and Cotton, in the county of Stafford, granted on the 1st of September, 1855, by Bertram Arthur Earl of Shrewsbury to Messrs. Richmond & Niness, and which lease purported to be executed by the earl" in pursuance and by virtue and in exercise of the powers and authorities vested in him in and by an act of parliament passed in the session held in the 6th and 7th years of the reign of Her present Majesty (6 & 7 Vict. c. 28), intituled 'An act for vesting part of the settled estates of the Right Hon. John Earl of Shrewsbury, in the counties of Oxford, Chester, Salop, Worcester, and Stafford, in trustees, to be sold, and for laying out the moneys to arise by such sale in the purchase of other lands and hereditaments to be settled in lieu thereof to the same uses and subject to the same restrictions, and for other purposes therein mentioned,' and of every other power and authority, estate, or interest enabling him in that behalf." 4. An affidavit of one of the attorneys for the defendants, showing that the defendants were trustees for the devisee under the will of Earl Bertram Arthur. *The settlement of 1718 was as follows: THIS indenture quinquepartite, made the 4th day of March, in [*6 the 5th year of the reign of our Sovereign Lord George by the grace of God of Great Britain, France, and Ireland, King, defender of the faith, &c., and in the year of our Lord 1718, between the Right Hon. Gilbert Earl of Shrewsbury, cousin and heir of the most noble Charles Earl and Duke of Shrewsbury, deceased, and the Hon. George Talbot, only brother of the said Gilbert Earl of Shrewsbury, of the first part, The Right Hon. Richard Lord Viscount Fitzwilliam, of Merion, in the |