annesly versus Dixon mich Ann sir Thomas powys for the plaintiff in error hope  the judgement will be reverse for the question be now whether Dixon have enter  his claim and be dismiss by the trustee shall be admit to bring his ejectment  and set up the same title and that a jury shall try the same fact which be  before settle by the trustee and whether now after the sale this will be admit  and controvert which ought to be settle before the sale if such a thing can be  imagine then or there have be any ground for such a opinion I do believe our  Act here have be make in vain for we shall get no purchaser and so the public  will lose what be design by such a beneficial Act which bring we in l now the  question remain whether they can determine what be vest and I think they can  from the necessity of the thing from the mischief that otherwise must follow  and from the word of the Act of parliament from the necessity we be to  construe act of parliament by the preamble now by the preamble we be to expect  a great deal of money by the sale of the Irish forfeiture and how can that be  expect if the trustee can not make a title to the purchaser next it reasonable  and necessary that such power to determine what be forfeit and what be vest  shall be lodge somewhere and we know of none therefore it must be in the  trustee beside the trustee have power to determine encumbrance therefore this  more reasonable that they shall have power first to settle such estate on  which the encumbrance be and which be subject to the same how can they  determine the encumbrance if they can not settle the land which be subject and  this not reasonable that they have power to determine part if they can not  determine the whole because it more reasonable and necessary that holt KB the  trustee shall have power to settle the whole because they be arm with a  extraordinary power holt KB er p to find out the forfeit land because the  forfeit person keep their deed and title so that the purchaser nor even the  trustee can have they but the vendees be to have a good title make to they and  how will this be at this rate the purchaser be and be suppose to be englishmen  and by the express word of that Act of parliament be to be protestant and the  person that forfeit be papist in what condition be such English protestant now  if this judgement shall be affirm when papist may be juror in that kingdom at  this we may guess what equality such purchaser will have there in such case  and we know that venomous beast will not live in that country yet there S as  much perjury and forgery there as in their neighbour country to prevent which  it necessary the vendees shall have a good title which can not be if the  trustee have not a power to determine what be forfeit the purchaser by this  Act be to pay their money into the exchequer there before they can have any  conveyance and by this Act they be only to have a bare deed of bargain and  sale without the usual covenant which be think and make sufficient by this Act  of parliament against all people but such who claim be allow they by the  trustee how then shall these purchaser if you take their land from they have  their money back I see no way nor no remedy for they it have be object that  such power will be exorbitant and too great to be give but this objection be  of no weight if we consider that it will go to all power to judge jury c for  such a power must be somewhere and where can such a power be lodge with more  safety to the public than where it videlicet in the trustee who be choose by  the king lord and Commons they be then know person they have reward give they  which keep they beyond corruption they be on their oath they be not to buy or  purchase or any one for their use or in trust for they any estate or interest  in or to any land in Ireland which be vest in they by this Act so that there  be all the reason that human prudence can foresee to satisfy that such power  be well repose in the trustee and they behave themselves so well that this be  the first complaint which have be regular make against they so that we have  all reason to be satisfy with they beside the holt KB commissioner who be at  first send over to inquire into the several forfeiture and the grant make of  they who be to make a registry of all the forfeit and other estate in Ireland  which be to be vest by this Act be a sufficient notice to all person foe of  this Act how can they make such a registry if they know not or can not  determine what be forfeit or the person forfeit as to the encumbrance now  every person have notice that be in danger then the next thing to be do be to  claim for which they have sufficient time allow they by the Act but here it  object that it very hard that the judgement of the trustee shall be final and  that no appeal or writ of error shall be c that be not hard as they make it  because we have frequent example of such act of parliament whereby summary  proceed be warrant by justice of the peace c and such be the power give by  their own Act of settlement in Ireland whereon no man have ever hear of a  appeal or writ of error bring and I take it that this Act be frame by that but  to give a full answer to this objection they do agree of the other side that a  power be give to settle encumbrance why may it not be so in land when the  encumbrance may be of as great value if not more than the land and be there  not as great regard to he have to those who all consist in encumbrance as to  those who have land so that we see that the gentleman of the other side  inveigh against a power which they admit and if there have be any further  appeal from their judgement no man will purchase till they be determine for no  man will buy a litigate title but here every body by the registry know whether  he be grieve for the registry be a sort of interlocutory judgement then they  be to claim for which they have full time and a fair bear and if they be wrong  they may apply to the parliament which then be frequent and which every man  know will be so and we have hear no such complaint against they and if there  have be any cause for it we shall have hear before now if this action shall be  or go against we the mischief will be that this Act of parliament which be  make for very good end will be evade and render useless but such construction  be not to be make of act of parliament hob and in more and Hussey S case and  Lord coke say insult exhibition be who to destroy woven fabric and in another  holt KB er p holt KB place he tell we viperina exhibition and if that be so in  any case this so here for this whole Act will be avoid which be make for such  good purpose for though the encumbrance be bind by the judgement of the  trustee yet they may bring their action and say that the land which be subject  to their encumbrance be not forfeit so that no purchaser under this Act be  safe because that every person will direct or indirect avoid the judgement of  the trustee will not this make the whole Act illusory the mark for every body  to shoot at for I know of no other limitation of ejectment and this in the  case of innocent people and English protestant subject to Popish jury c which  I say before sure no man will say be a design of such Act but such will be the  consequence if such construction as they will have will stand the trustee be  arm with a extraordinary power they can send for any person in that kingdom  they can examine they upon oath they can send for evidence deed and write and  keep they as long as they think fit c and all this be to find out the truth of  what land be forfeit and what encumbrance c be upon they and be this  extraordinary power give they to no purpose if they can not determine unless  it be to deceive purchaser either the parliament shall make the judgement of  the trustee final or else they shall transmit this extraordinary power to  their vendees and if neither then I must say that this be the most  dishonourable Act of parliament or construction upon it that can be think on  Mr Dixon have himself claim the land and have be allow in part and disallow  for the residue yet I believe he think himself safe under the trustee for the  part which they have allow he by the express word of that Act of parliament  the decree of the trustee be to be final and bind against the say trustee and  their heir and against the king his heir and successor and will it not be very  mischievous and absurd that the judgement of the trustee shall be final and  bind one and shall have no force the other way beside no writ of error nor  attaint lie unless the matter or the same evidence which appear on the  original action be then to be have and that be find upon great reason and  great justice and equity because the first judgement shall not be condemned  unless the motive and inducement whereon the same be ground appear when that  be reexamined for holt KB that possible there be a good motive to give the  first judgement which do not appear in the reexamination and that be the  reason if one of the witness die the attaint fail I roll now that be our case  the trustee be arm with very extraordinary mean to send for person paper and  record to examine person upon oath to examine other man S deed and write and  so may have great reason for judge this moiety of Tippenan to have be of the d  of York S estate and we be the more induce to believe it for that the lessor  of the plaintiff say in his claim he will for his peace sake purchase it now  the defendant in ejectment have no such power no such reason and proof for he  as the trustee have and be put in this action to plead the general issue last  I think that by the word of the Act of parliament this power be give to the  trustee to determine what be vest they be to declare what be forfeit and vest  for with submission the word of a Act of parliament be to be liberal construe  above totan means and not like word of the party in grant or deed which be to  be most strong take contra to carry out this true there be no express word for  they to determine what be vest but they be to declare what be forfeit and  consequential to declare what be vest for all the forfeit land be vest in they  by this Act and this not by any express word but take all together if this be  not so to what purpose have they all this extraordinary power to send for  person deed and write this must be to some purpose or end for the benefit of  the public that do employ they for no body else can be the better for it nor  even the public unless their judgement be to be final then they be to register  what as well the inheritance as the encumbrance all the estate in the land and  also particular estate reversion and remainder so that they be not to register  part but the whole then natural come immediate after the save for innocent  person to claim not only encumbrance but also the possession and inheritance  the word be not that they shall claim the particular estate reversion  remainder or encumbrance but they may claim every thing in the premise and  premise be every thing put before videlicet all the estate and interest in  land all the estate therein now holt KB er p I say whatever the party can  claim by this Act the trustee have a holt KB power to determine if a innocent  person have a power to claim and they determine and can do so by this Act then  certain the trustee can determine it the Act go on in the same place foe and  say every person which do not claim his right shall be extinguish and go so  that clause of claim be universal and land vest shall be take to be what be  register until it be take out by the subsequent claim so that the word vest  shall not be take to be absolute at first until the claim be determine and  therefore Hobart with a great deal of reason say that word can be write or  speak at the same time though they be at the same time imagine by the author  every person be conclude by the judgement of the trustee infant feme covert  idiot person beyond the sea therefore sure their judgement must be final and I  must again insist upon it that wherever any person can claim by this Act the  trustee can determine as for the case of commissioner of sewer and  commissioner of bankrupt I think they be not at all applicable to this case  for they be no judge   a nor be they any court of record but the trustee be  judge of record and have full power to hear and determine so we may  distinguish this case from the case in Hardr which case be not there adjudge  quod notam because the commissioner of excise there have no power to judge  what liquor be exciseable otherwise if they have judge small beer to be strong  for there they have jurisdiction but here the trustee be judge of what be  forfeit and if not then several other clause as I say before will be absurd as  the clause that give they power to give Triple damage if any waste be do in  the forfeit land and how can that be unless they can determine what those land  be last if this power be not express give in terininis in the Act yet it be at  least necessary imply as without quo res self to take a stand non to be able  hob therefore if the king give by his letter patent land Probus man of  Islington render a rend this be a incorporation to that special purpose  therefore here the trustee if they can not determine what be forfeit they can  determine nothing so that even what be agree of the other side that their  judgement be final as to encumbrance particular estate reversion remainder can  not be so unless they can determine what be forfeit and I take it that the  find of the jury shall not be take holt KB here to be the truth for they be  estopped by the decree of the trustee as if trover be bring for the good that  belong to a feme before the coverture if before this come to the jury the  marriage be dissolve in the ecclesiastical court or the lawfulness of the  marriage be determine there this shall conclude the jury therefore since this  point have be determine by the trustee who have jurisdiction thereof by this  Act of parliament I hope that jury will not be let in to undo poor innocent  purchaser for which reason I hope the judgement will be reverse it be late the  case be put off till the next day sergeant wield for the defendant I do agree  with my brother powys that if the trustee have power by this Act before that  the jury ought not to be admit to try it again for the judgement of the  trustee be final in such thing whereof they have jurisdiction but the question  between we be whether the trustee have a power to determine what be forfeit  for if they have not then what judgement they give be in person non judge and  void for if they have not power they can not judge I shall only speak of the  duke of York S estate which be now the point for we have no dispute now about  the forfeit estate in the Act foe this declare what shall be vest and that be  what king James ill at the time of his accession to the crown of England be  seize or possess of or any other person in trust for he or to his use now that  be a notorious thing and not so long since but that several person can prove  what that be and whatever that be it vest and no more then come foe where the  trustee be to swear they will not purchase any part of the land vest yet at  this rate and by my brother S construction they may purchase great estate in  Ireland and yet purchase no part of the land vest they may purchase all my  client S estate yet not break their oath then the claim clause say they shall  put in their claim to all the land vest by this Act then the clause that  empower they to sell say only they shall sell and dispose of all the land vest  so that all the power and authority give they by this Act be over the land  vest and not one word in all the Act do give they authority to deter holt KB  er p I what be vest but if it be vest then they have power it say that if we  can claim they can determine to that I can say that all the forfeit land in  Ireland be in the trustee holt KB by this Act and they have power to determine  of they and of no other and if I claim from they where they have no  jurisdiction their judgement for I do not mend my title no more can their  judgement against I do I any hurt but if it a forfeit estate or be belong to  the late king James then they have jurisdiction so that this plain that this  Act give they a limit and my brother will give they a absolute power the land  do such a day belong to I S yet the trustee may at this rate by matter ex post  facto say it forfeit and so vest this in themselves the Act of parliament do  vest the duke of York S land and the forfeit land in these trustee but by my  brother S construction they shall vest the land of all Ireland in they and  that by colour of this Act of parliament this construction sure will be as  mischievous and more than the other if the Act be thus to be construe I think  it better to send over a new colony into Ireland and turn they all there out  of their estate than to give a power of do it in effect under a pretence of  justice this will be like the fox in the fable who will not come to court for  fear his ear shall be say to be horn but say they Mr Dixon have claim and have  admit the jurisdiction of tile trustee and therefore now he shall be conclude  true if that shall be think a reason it will be a pretty hard one first  because the trustee turn he out of possession therefore I think he shall  complain to they his possession be undisturbed till they come then he complain  to they and set forth his claim and in all his claim he do not say nor admit  that the late king James have any right but be show that one sir William  Talbot who be a very busy sort of a man and who be a gentleman to the duke of  York make a lease of these land which the trustee decree against my client but  no possession ever go along with such lease nor do be allow either by  implication or by express word that the duke of York or any concern for he  have any right as my brother will insinuate and for this I submit my self to  the claim which also be find in the special verdict so that it fit for he to  complain to the trustee who turn he out but if he have no further remedy and  if all the people of that country have no other remedy in such case it will be  very hard to have recourse only to those who wrong they so that the people  there if our claim give they jurisdiction be in a very bad way for if holt KB  they claim then they admit their jurisdiction and so be conclude by their  judgement if they do not claim then they be conclude also for their right be  go say my brother if they do not claim this be a mere juggle like cross I win  pile you lose but they have no power but what be give they by this Act and  this power be not give therefore this like a appeal of murder bring in the c b  or a fine levy in this court for though they be both court of record yet their  proceed in such case will be in person non judge and void so be the case of  terry and Huntington Hardr and the Lord Leicester S case in Plowden S  commentary which be both very applicable to this case for that the trustee  have no power to judge what be forfeit or what be not for the Act of  parliament do determine that point therefore whatever judgement they give upon  that matter be void it object by my brother and much insist on that their way  of judgement and the way they have be very different from that which a jury  can have but what I say last will answer that though in truth I do believe the  way they take be pass find out and it will be very proper perhaps to bring  they to light Mr attorneygeneral say when be argue on the other side this Act  will be impertinent and my brother say it very dishonourable unless this Act  do give power to those trustee to dispose of all this kingdom for so far their  construction will carry it and we be now to thank they that they have not do  it for they may do so by their construction and warrant it when they have do  will not this be a mischievous construction that because they have a power  over forfeit land they must also have power over innocent estate too and this  they say be necessary to secure purchaser sure this no new thing in our book  or experience to bear of forfeiture in other country as well as this and there  have be purchaser find out without this extraordinary method to secure they  and can there be no way to secure they but by make these gentleman who  possible be honest holt KB er p enough have power of dispose of the estate of  all the innocent in that kingdom but I take it there be no necessity for it  nor for deed or write neither for if there be a possession in forfeit person  or in the late king James when he come to the crown that be enough to give  they power and jurisdiction so holt KB deed and covenant be not necessary to  give a possession which be a notorious thing and easy know be so late in every  man S memory therefore these extraordinary power be not at all necessary to be  give they tell we of several act of parliament that give power to proceed  summary but they do not tell we what they be but I say there be no such Act  nor never be such power give without express word at least and though there  may be such act yet they concern chattel only but a man S freehold and  inheritance shall never be divest without very strong and express word there S  the Act for the building of London this give power but yet if a new house be  on part of the old foundation and partly on my ground the person empower d by  that Act can not justify such building for that be out of their jurisdiction  and that be to be try at law so here as to what my brother say of the people  of the country I must differ with he for I think they be a very honest sort of  people and he shall say so too for they may have find a general verdict  against the defendant and if so then my brother may have something to say of  they but here they find the matter at large and refer the matter of law to the  court my brother say it necessary to raise a great sum of money but I think it  will be very dishonourable if the people of England will raise it out of the  innocent estate then my brother say papist be juror there I say all the  sheriff there be protestant and they will not nor be they admit tj return a  jury of papist my brother say that all power be arbitrary I say so too but  that be in the dernier resort king lord and Commons and that by step too I  hope he will not put these gentleman in the same rank and any seven of they if  I be to find out by all mean the estate of John of style and to sell it do it  follow that if I be false inform and I sell that ground on such information be  this bind sure no why then shall not the information of the trustee be liable  in this point to a scrutiny my brother say the word premise in this Act  comprise all which I deny for the common case be against he for if I let a  piece of ground and set forth the abuttals this will be viperina exhibition  with a vengeance then they shall not be vest till the claim be hear that will  be as bad and I be sure my brother S say so will not make it so but then he  think that will not do and say holt KB they be vest by their registry and they  be to be take out by claim why then they may register all the land in the  kingdom this I be sure will be viperina exhibition but my brother at last come  to own there be no express word for he then he say the power be give by  implication for that I say what I have before that no such power ever be or  can be give by implication but by express word which be not here my brother  say there be but this complaint then the mischief be not so great as my  brother seem to apprehend but if there have be more I doubt not but they shall  have their due and proper remedy therefore I pray the judgement may be affirm  for I be satisfy as to that while we endeavour to support it especial in  westminsterhall sir Thomas powis reply I do agree with my brother wield if  there be no jurisdiction in the trustee then their decree be void but the  question between we be whether they have such a power or not which he have not  as I take it with great submission answer he say we be to avoid arbitrary  power in the main I agree with he but I hope he do not mean act of parliament  if so I disagree with he for every Act of parliament be so and so be this Act  as well as other I must then beg leave to insist upon it and my brother have  give no answer to what I say videlicet that if any man claim and his claim be  allow the king and all the people of England be bind by their judgement and  may have their remedy at law be not this the juggle that I speak of and will  not his fable be applicable to the people of England who give a power to  trustee to act so to conclude they and leave the other side at large have not  these trustee power to give away all the forfeit land c in Ireland and be not  we bind and why shall they not have the same power over the innocent these  trustee be think to be indifferent why then shall they not have power over the  other side have not jury power to holt KB er p take the life of innocent  person so that this power which look frightful at first yet be very familiar  when view at a near distance I do agree with my brother that all the land be  vest by the Act but they be ascertain by the determination of claim the case  put by my brother be very true if I have authority to sell the estate of John  of style but if I have a judicial power this otherwise so be his case of the  building of London and all his other case I say they holt KB have a power of  judicature which be to allow of encumbrance c which I say and insist on with  submission can not be unless they can also judge of the possession and  inheritance which I take my brother do not answer Powell I you will allow  there be no express word that give any power to the trustee to determine what  be forfeit and that this only by implication holt c j brother if you please we  will reserve our self till we argue it when we shall deliver our opinion the  first Saturday of the next term but I hope brother powys you believe the story  of the fox in the fable will not influence we