MAULE, J. I am of the same opinion. It is the defendants, and not the plaintiff, who seek to set up the fraud to which their testator was a party. Doe 1850. PHILLPOTTS บ. d. Roberts v. Roberts is an authority to shew that it is PHILLPOTts. not competent to them to do so: and that is consistent with a multitude of older authorities. Supposing this were not so, I think this plea affords no answer to the action. It proceeds upon the ground that a covenant to pay money is void, if made in pursuance of such an agreement as must be taken to be found upon this plea, viz. an agreement to multiply votes, with a secret trust and condition that no beneficial interest should pass by the conveyance to the plaintiff; -in short, bringing it within the common law of parliament as declared in the statute 7 & 8 W. 3. c. 25. That statute relates to the election of members to serve in parliament. The 7th section is, "that all conveyances of any messuages, lands, tenements, or hereditaments, in any county, &c., in order to multiply voices, or to split and divide the interest in any houses or lands among several persons, to enable them to vote at elections of members to serve in parliament, are hereby declared to be void and of none effect, and that no more than one single voice shall be admitted for one and the same house or tenement." In terms, it is declaratory. In the recital of the 10 Anne, c. 23. it is The question is, called enacting. It may be both. 1850. PHILLPOTTS V. greater extent than the mischief to be remedied renders necessary. Such was the state of the law for about sixteen years, until the passing of the statute of Anne. PHILLPOTTS. That statute recites the former provision, and that it had been found insufficient to prevent the practices against which it was levelled. In its enacting part, it does not avoid any conveyance whatever, but makes some conveyances more effectual than they were before. It, however, tends to throw some light upon the statute of William. That statute, according to the true construction of it, invalidated conveyances so far as to prevent them from conferring votes, but left them valid in other respects. The legislature, finding, that, by merely avoiding the conveyance to this extent, and leaving it effectual as a grant,—and, amongst other things, leaving the condition or qualification for the benefit of the party affecting to confer the vote, in passing the statute of Anne, professing to deal with fraudulent instruments, enact that such fraudulent conveyances, though made subject to conditions or agreements to defeat or determine the estate, or to re-convey the same, shall be deemed and taken, against those persons who executed the same, as free and absolute, and be holden and enjoyed by the grantee freely and absolutely acquitted and exonerated from all manner of trusts, conditions, clauses of re-entry, powers of revocation, &c. That provision seems to assume that the construction which I put upon the statute of William is the true construction. It assumes that the statute of William does not prevent the property from passing and it makes the condition void, and the estate absolute. I therefore think that the true construction of these two statutes, is, that, dealing only with the subject of parliamentary law, they prevent a man from acquiring a right to vote which it was contrary to the policy of the law that he should acquire: but that they 1850. PHILLPOTTS leave the conveyance to operate upon the land freely and absolutely in all other respects. (a) I think, therefore, that, assuming that this was a matter which it was competent to the defendant to set up, it affords PHILLPOTTS. no answer to the action. WILLIAMS, J. I also am of opinion that the plaintiff in this case is entitled to judgment, notwithstanding the verdict found for the defendant upon this plea. The plea alleges that the deed was fraudulently and collusively made, for the mere purpose of creating votes, with an understanding that it should not operate beneficially to the grantee. It seems to me that the cases of Doe d. Roberts v. Roberts and Bessey v. Windham shew that it is not competent to the defendant to set up the supposed fraud. I therefore do not think it necessary to express any opinion upon the construction of the two statutes to which reference has been made. TALFOURD, J. I am of the same opinion. The cases of Doe d. Roberts v. Roberts and Bessey v. Windham seem to me to remove the whole foundation upon which this plea rests. I therefore abstain from discussing the statutes 7 & 8 W. 3. c. 25. s. 7. and 10 Ann. c. 23. s. 1.: not that I mean to express any doubt as to the correctness of the construction which has been put upon them by my lord and my brother Maule; for, I do not feel any. (a) Quare, whether an enactment that a conveyance shall be void and of none effect, does not Rule absolute. import that the property ex- V. 1850. By the 24 H. 8. c. 12. ss. 2. all causes within the Ex parte The Bishop of EXETER, in re GORHA M v. The Bishop of EXETER. SIR IR F. Kelly, in Easter term last, moved for a rule to shew cause why a writ of prohibition should not 5, 6, 7, 8., issue to the Dean of the Arches, and to the Archbishop of Canterbury, to prohibit them from requiring the Lord Bishop of Exeter to institute the Rev. George Cornelius Gorham to the vicarage of Brampford Speke, and also to prohibit the said dean and archbishop from instituting the said George Cornelius Gorham to the said vicarage, or otherwise carrying into execution an order of Her Majesty in council, made on the 9th of March, 1850, upon a report of the judicial committee of the privy-council, in an appeal from the judgment of in the King's the court of Arches in a suit of Duplex Querela between the said George Cornelius Gorham and the said lord bishop. courts; and where, in such cases, the appeal used to be made to the see of Rome, it was thenceforward to be carried from the archdeacon's court (if commenced therein) to the bishop's court, and from the bishop's court to that of the archbishop, whose decision was to be final. By s. 9., in case any such cause should touch the king, the appeal from any of the said courts was to be made to the upper house of convocation for the province. By the 25 H. 8. c. 19. ss. 3, 4., no appeal was to be made to Rome in any cause arising within this realm; but all appeals were to be made in the manner limited by the 24 H. 8. c. 12. for causes of matrimony, tithes, oblations, &c. An ulterior appeal was given, for lack of justice in the archbishop's courts, to the King in Chancery; and, on such appeal, a commission under the great seal was to issue to such persons as the King should name, to hear such appeal. The judicial committee of the privy-council was substituted for such commission, by the statutes 2 & 3 W. 4. c. 92. s. 3., and 3 & 4 W. 4. c. 41. s. 3.: Held, that, if the crown presents a clerk to a vicarage in its gift, and the ordinary refuses to admit him, on the ground that he maintains unsound doctrine, and, on a duplex querela brought in the archbishop's court, the judge, for the same reason, pronounces sentence confirming such refusal to admit, the appeal lies to the judicial committee of the privy-council, and not to the upper house of convocation. The motion was founded upon affidavits, which stated the following facts, -- that the vicarage of Brampford Speke, in the county of Devon, is a benefice with cure of souls within the diocese of Exeter, and that the patronage of, and right of presentation to, the said vicarage belongs to, and is lawfully vested in, Her Majesty Queen Victoria, in right of Her crown, and that Her said Majesty, in right of Her said crown, is seised as of fee of the advowson of the said vicarage as of one in gross: that, on the 3rd of March, 1847, the said vicarage became void by the death of the Rev. John Mudge, who theretofore, and until the time last aforesaid, had been the vicar thereof, and that thereupon afterwards, that is to say, on the 2nd of November, in the year last aforesaid, the said vicarage then being and remaining void as aforesaid, Her said Majesty the Queen, as patron of the said vicarage, in right of Her said crown as aforesaid, did, by letters-patent under the great seal of Great Britain, bearing date the day and year last aforesaid, present to the bishop the Rev. George Cornelius Gorham, clerk, as Her Majesty's clerk appointed to the said vicarage, commanding and requiring the said bishop to admit the said George Cornelius Gorham to the said vicarage, and him then to institute, induct, and invest with all and every the rights, members, and appurtenances thereof, and to do all and singular other matters and things in any wise concerning the admission, institution, and induction aforesaid, which to the bishop's pastoral office belonged or appertained: that the said bishop is the ordinary, and hath full ecclesiastical and spiritual jurisdiction in and over the said vicarage, and the vicar thereof for the time being, and that, as such bishop and ordinary, he had full and sole right and authority by law to admit, institute, and induct, or to authorise the admission, institution, and induction of each and every person from time to 1850. Ex parte The Bishop of |