brown case thomas Anderton plaintiff jane MAGAWLEY widow defendant in error  that February Mews dig way a old inquisition post death may be read as  evidence without produce the commission upon which it issue but it be  necessary to prove that such a commission do actual issue which may be do viva  voice viner vol p can can the commissioner of the forfeit estate in Ireland by  indenture of bargain and sale date the that of June and enrol in the court of  chancery there in consideration of pound bargain and sell to the governor and  company for make hollow sword blade in England several land and tenement in  Kilcolmuck alias Kilcormuck Ballycolane Currahmore Kilduffe down Gurteen and  Killyshell in king county which be the estate and inheritance of Thomas  Leicester attaint of high treason and all other the land of the say Thomas  Leicester in king county to hold to they their successor and assign for ever  subject to a quit rend to the crown and to all the claim and demand which have  be allow by the say trustee out of the premise and soon afterward the company  sell the say premise to Francis Edward Esq for a valuable consideration brown  er p in Trinity term the plaintiff bring a ejectment for the premise in the  court of exchequer in Ireland against the defendant and also against Luke  nugent son and heir of mary nugent decease who together with the defendant be  the sister and coheiress of the say Thomas Leicester and declare on a double  demise videlicet on the demise of the sword blade company and on the demise of  the say Francis Edward to which declaration the defendant plead not guilty in  easter term this ejectment be try at bar and a verdict be give for the  plaintiff the defendant tender to the court a bill of exception which be  afterward sign by two of the baron and be to this effect videlicet that the  plaintiff give in evidence a inquisition recite the commission upon which it  be take date Decimus of purifying Williel by which inquisition it be find that  Thomas Leicester late of Ballyboy in king county gentleman November Williel  Mari be seize in his demesne as of fee of the say land and be so seize he on  the say saint of November traitorous take up arm and enter into actual  rebellion and levy war against the say king and queen and afterward videlicet  that of march Williel Mari die in the same actual rebellion and that all the  say land by reason of the say treason and death of the say Thomas brown  Leicester in rebellion be forfeit to the king in right of his crown this  inquisition be take at Philip town in king county on the that of march as  appear by another inquisition of that date which be prove to be take upon the  same commission and at the same time and place to this the defendant counsel  object that the record of the inquisition ought not to have be give in  evidence till such commission as be mention in the title of the record be  produce to warrant the caption of such inquisition and for that upon view  thereof it appear that several word be want or not legible without which it be  imperfect and insufficient that thereupon the plaintiff prove by witness that  a commission issue out of the court of chancery under the great seal of  Ireland by virtue whereof the say inquisition be take that the say commission  be lose that the several part of the inquisition which be want and not legible  be eat out by vermin in the office of the roll of the chancery of Ireland that  there be many inquisition in the say office take in the time of king Charles I  without any commission annex and that there be not one of a hundred of the  inquisition remain in the say office take in and before the year that have the  commission annex that the plaintiff also give in evidence a act of parliament  make at Dublin Williel III entitle a act to hinder the reversal of several  outlawry and attainder and to prevent the return of subject of this kingdom  who have go into the dominion of the French king in Europe whereby it be enact  that all papist or repute papist that have be guilty of the say rebellion in  this kingdom against his majesty and her late majesty the queen and who by any  inquisition already take by the oath of twelve man and return or that shall be  take by the oath of twelve man and return within the space of two year from  the saint day of September have or shall be find to have die or be slay in  their say actual rebellion before the d day of October shall by authority of  this act be convict and attaint of high treason and shall incur the penalty  and forfeiture that traitor attaint by the ordinary course of proceed in case  of high treason by the law of this realm now in be ought to suffer and undergo  and that wheresoever any such papist heretofore have be find to have be slay  or to have die in the say rebellion against his majesty and her late majesty  the queen before the d day of October by inquisition take upon the oath of  twelve man of the county where such papist have commit such rebellion and  treason the say papist or repute papist so find to have be slay or to have die  in rebellion against his majesty and her late majesty the queen shall at all  time hereafter be adjudge and deem brown and be hereby declare to be traitor  attaint to all intent and purpose and to have incur all such penalty and  forfeiture of estate real and personal from the time he or they shall by such  inquisition be find to have commit or be guilty of the say rebellion and  treason as if he or they have be attaint of any such rebellion and treason by  judgement upon verdict or outlawry that the plaintiff give in evidence another  act of parliament make at Westminster brown er p Williel entitle a act for  grant a aid to his majesty by the sale of the forfeit and other estate and  interest in Ireland and by a land tax in England for the several purpose  therein mention that the plaintiff also give in evidence a claim duly make and  exhibit by Patrick Magawley decease and the defendant jane Magawley then his  wife before the trustee name in the last mention act by which claim the say  Patrick and jane Magawley in right of the say jane claim a moiety of the land  of the say Thomas Leicester and the interest thereof that the plaintiff also  produce and give in evidence a decree of disallowance and dismission of the  say claim make by the say trustee upon hear the same that the plaintiff also  give in evidence another act of parliament make at Westminster Ann entitle a  act for advance the sale of the forfeit estate in Ireland and for vest such as  remain unsold by the present trustee in her majesty her heir and successor for  such use as the same be before vest in the say trustee and for the more  effectual sell and settle the say estate to protestant and for explain several  act relate to the Lord Bopbin and sir Edward Everard and also another act make  at Westminster annae entitle a act to enlarge the time for the purchaser of  the forfeit estate in Ireland to make the payment of their purchase money that  the plaintiff prove by witness that the say Thomas Leicester be a papist at  the time of his death and thereupon the defendant counsel object that it be  not find by the inquisition that the say Thomas Leicester at the time of his  death be a papist and that the plaintiff ought not to be admit to give parole  evidence of that matter No inquisition prior to the act will III find the  religion of the rebel die or be slay in rebellion that the plaintiff also  prove and give in evidence on the trial the beforementioned indenture of  bargain and sale enrol date the that of June from the commissioner of the  forfeit estate in Ireland to the sword blade company in England of the land in  question and that the company pay the brown consideration money in the say  indenture mention into the exchequer in Ireland this bill of exception be  several time argue before the baron in the court of exchequer but before final  judgement be give the defendant Luke nugent die at length in Hilary term the  Lord chief baron Gilbert and the rest of the baron give judgement unanimous  for the plaintiff against the defendant jane Magawley and pound S d cost the  defendant thereupon bring a writ of error in the exchequer Chamber of Ireland  and after several argument the court in easter term reverse the judgement so  give for the plaintiff but to reverse this judgement of reversal the plaintiff  bring a writ of error in parliament and on his behalf it be insist p York t  Lutwyche that as to the first exception contain in the bill of exception the  baron of the exchequer act right in permit the inquisition to be give in  evidence notwithstanding the commission for take the same be not produce for  this commission be prove to be lose the best evidence ought by law to be  receive which the matter be capable of and no better evidence can under these  circumstance be possible give than the recital of it in the inquisition which  appear to be file of record in the court of chancery of Ireland and proof viva  voice that such a commission be actual issue under the great seal by virtue  whereof the say inquisition be take all which the plaintiff prove upon the  trial of the cause and so it be state at large in the bill of exception and as  to the second exception the opinion of the baron be apprehend to be also right  in admit the plaintiff to give evidence by witness examine viva voice that  Thomas Leicester during his life and at the time he die in rebellion be a  papist for the act of will III on which this point depend do not make it  necessary to be find by any inquisition before the make of that act as this  inquisition be that the person die or be slay in actual rebellion be a papist  but only make the be papist or repute papist a part of the description of the  person attaint by that act and who be likewise to have this further  circumstance attend they that they shall be find by inquisition to have die or  be slay in actual brown er p rebellion before the d day of October and that  this be the meaning of the law be evident inasmuch as not one of those  inquisition which be take and return before that act be make and which the  legislature then have under their consideration find of what religion the  traitor be but it be think sufficient to find that he die in actual rebellion  last it be submit whether the give way to exception so slight find as those  make by the defendant in the present case may not tend to overthrow or render  precarious the purchase make under the brown faith of the act of parliament  for sale of the forfeit estate in Ireland for which the public have already  receive the consideration money and if so it be hope that the judgement of the  baron of the exchequer will be affirm on the other side it be contend n  fazakerley t Bootle that a inquisition so obliterate ought not to have be  admit as evidence or read to the jury until the commission therein mention be  first produce that this inquisition be apparent defective several material  part of it be illegible or whole want and it appear upon the face of it not to  be warrant by the commission therein recite that these defect and imperfection  of the inquisition can not be supply by any testimony viva voice for no parole  evidence ought to have be admit to prove the issue of the commission by virtue  whereof the say inquisition be suppose to have be take that commission if any  such there be be a record to be prove by itself only and of so high a nature  as not to admit of any extrinsic proof that no viva voice testimony ought to  have be admit to prove that the say Thomas Leicester be a papist or a repute  papist at the time of his death in order to supply the defect of the  inquisition in that behalf it be altogether unprecedented that on such  supplemental oral proof a attainder shall sudden start up where none before  appear upon record and last that the say other inquisition and commission be  quite foreign to the matter in issue and therefore ought not to have be give  in evidence upon the trial for all which reason it be humble insist that the  judgement give by the baron of the exchequer be manifest erroneous and  consequent that the judgement of reversal give in the exchequer Chamber be  warrant by the rule of law and ought to be affirm but after hear counsel on  this writ of error it be order and adjudge that the judgement of reversal give  in the exchequer Chamber shall be reverse and that the judgement of the baron  of the court of exchequer shall be affirm jour vol p