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11 & 12 Williel. intitled, "An act for granting an aid to his majesty, by the sale of the forfeited and other estates and interests in Ireland, and by a land tax in England, for the several purposes therein mentioned."

That the plaintiff also gave in evidence a claim duly made and exhibited by Patrick Magawley, deceased, and the defendant Jane Magawley, then his wife, before the trustees named in the last mentioned act; by which claim, the said Patrick and Jane Magawley, in right of the said Jane, claimed a moiety of the lands of the said Thomas Leicester, and the interest thereof.

That the plaintiff also produced and gave in evidence, a decree of disallowance and dismission of the said claim, made by the said trustees upon hearing the same.

That the plaintiff also gave in evidence another act of parliament, made at Westminster, 1 Annæ, intitled,

An act for advancing the sale of the forfeited estates in Ireland, and for vesting such as remain unsold by the present trustees, in her majesty, her heirs and successors, for such uses as the same were before vested in the said trustees; and for the more effectual selling and settling the said estates to protestants, and for explaining several acts relating to the Lord Bophin and Sir Edward Everard;

and also another act, made at Westminster, 2 Annæ, intitled, "An act to enlarge the time for the purchasors of the forfeited estates in Ireland to make the payments of their purchase money."

That the plaintiff proved by witnesses, that the said Thomas Leicester was a papist at the time of his death and thereupon the defendant's counsel objected, that it was not found by the inquisition, that the said Thomas Leicester, at the time of his death, was a papist; and that the plaintiff ought not to be admitted to give parol evidence of that matter.^[1]

That the plaintiff also proved and gave in evidence on the trial, the before-mentioned indenture of bargain and sale inrolled, dated the 19th of June 1703, from the commissioners of the forfeited estates in Ireland, to the sword-blade company in England, of the lands in question; and that the company paid the con-[591]-sideration money in the said indenture mentioned, into the exchequer in Ireland.

This bill of exceptions was several times argued before the barons in the court of Exchequer; but, before final judgment was given, the defendant Luke Nugent died: at length, in Hilary term 1722, the Lord Chief Baron Gilbert and the rest of the barons, gave judgment unanimously for the plaintiff, against the defendant Jane Magawley, and £76 6s. 8d. costs.

The defendant thereupon brought a writ of error in the Exchequer Chamber of Ireland; and after several arguments, the court, in Easter term 1725, reversed the judgment so given for the plaintiff.

But to reverse this judgment of reversal, the plaintiff brought a writ of error in parliament; and on his behalf it was insisted (P. Yorke, T. Lutwyche), that as to the first exception contained in the bill of exceptions, the barons of the Exchequer acted rightly, in permitting the inquisition to be given in evidence, notwithstanding the commission for taking the same was not produced: for this commission being proved to be lost, the best evidence ought, by law, to be received, which the matter was capable of; and no better evidence could, under these circumstances, be possibly given, than the recital of it in the inquisition, which appeared to be filed of record in the court of Chancery of Ireland, and proof viva voce, that such a commission was actually issued under the great seal, by virtue whereof the said inquisition was taken; all which the plaintiff proved upon the trial of the cause, and so it was stated at large in the bill of exceptions. And as to the second exception, the opinion of the barons was apprehended to be also right, in admitting the plaintiff to give evidence, by witnesses examined viva voce, that Thomas Leicester during his life, and at the time be died in rebellion, was a papist for the act of 9 Will. III. on which this point depends, does not make it necessary to be found by any inquisition, before the making of that act, as this inquisition was, that the person dying, or being slain in actual rebellion, was a papist; but only makes the being papists, or reputed papists, a part of the description of the persons attainted by that act; and who wore likewise to have this further circumstance attending them, that they should be found by inquisition to have died, or been slain in actual