Page:The English Reports v1 1900.pdf/1532

In Trinity term 1717, the plaintiff brought an ejectment for the premises, in the court of Exchequer in Ireland, against the defendant, and also against Luke Nugent, son and heir of Mary Nugent, deceased, who, together with the defendant, were the sisters and co-heiresses of the said Thomas Leicester; and declared on a double demise, viz. on the demise of the sword-blade company, and on the demise of the said Francis Edwards. To which declaration the defendants pleaded not guilty.

In Easter term 1718, this ejectment was tried at bar; and a verdict being given for the plaintiff, the defendants tendered to the court a bill of exceptions, which was afterwards signed by two of the barons, and was to this effect, viz. that the plaintiff gave in evidence an inquisition, reciting the commission upon which it was taken, dated decimo Februarii, 7° Williel. by which inquisition it was found, that Thomas Leicester, late of Ballyboy in King's county, Gent. 1 November, 2 Williel. & Mariæ, was seised in his demesne as of fee of the said lands; and being so seised, he, on the said 1st of November, traitorously took up arms, and entered into actual rebellion, and levied war against the said king and queen; and afterwards, viz. 26th of March, 3 Williel. & Mariæ, died in the same actual rebellion; and that all the said lands, by reason of the said treason and death of the said Thomas [589] Leicester in rebellion, were forfeited to the king, in right of his crown.^[1]

To this the defendant's counsel objected, that the record of the inquisition ought not to have been given in evidence, till such commission, as was mentioned in the title of the record, was produced, to warrant the caption of such inquisition; and for that, upon view thereof, it appeared, that several words were wanting, or not legible, without which it was imperfect and insufficient.

That thereupon the plaintiff proved by witnesses, that a commission issued out of the court of Chancery, under the great seal of Ireland, by virtue whereof the said inquisition was taken; that the said commission was lost; that the several parts of the inquisition which were wanting and not legible, were eaten out by vermin, in the office of the Rolls of the Chancery of Ireland; that there were many inquisitions in the said office, taken in the time of King Charles I. without any commission annexed; and that there was not one of a hundred of the inquisitions remaining in the said office, taken in and before the year 1641, that had the commission annexed.

That the plaintiff also gave in evidence, an act of parliament made at Dublin, 9 Williel. III. intituled, "An act to hinder the reversal of several outlawries and attainders, and to prevent the return of subjects of this kingdom, who had gone into the dominions of the French King in Europe." Whereby it is enacted, that all papists, or reputed papists, that have been guilty of the said rebellion in this kingdom, against his majesty, and her late majesty the queen, and who (by any inquisition already taken by the oaths of twelve men and returned, or that shall be taken by the oaths of twelve men and returned within the space of two years, from the 1st day of September 1697,) have, or shall be found to have died, or been slain in their said actual rebellion, before the 3d day of October 1691, shall, by authority of this act, be convicted and attainted of high treason; and shall incur the penalties and forfeitures that traitors, attainted by the ordinary course of proceedings in cases of high treason, by the laws of this realm now in being, ought to suffer and undergo.—And, that wheresoever any such papists heretofore have been found to have been slain, or to have died in the said rebellion against his majesty, and her late majesty the queen, before the 3d day of October 1691, by inquisition taken upon the oaths of twelve men of the county where such papists have committed such rebellion and treason, the said papists, or reputed papists, so found to have been slain, or to have died in rebellion against his majesty, and her late majesty the queen, shall, at all times hereafter, be adjudged and deemed, [590] and are hereby declared to be traitors attainted, to all intents and purposes, and to have incurred all such penalties and forfeitures of estate, real and personal, from the time he or they shall, by such inquisition, be found to have committed, or been guilty of the said rebellion and treason, as if he or they had been attainted of any such rebellion and treason, by judgment upon verdict or outlawry.

That the plaintiff gave in evidence another act of parliament, made at Westminster,