avoid lessee of cowper versus the college OF dublin in ejectment bill of  exception c this be a ejectment wherein James avoid declare against the  provost fellow and scholar of Trinity college on a lease make to he the saint  of may for six year by Arthur Cowper on not guilty verdict be give for the  plaintiff on this a bill of exception be enter on record wherein they set  forth the certificate by which the commissioner say that it appear to the  court that these land be seize and sequester in the rebellion that break out  the d of October and that these land be allot to Edward Cowper and certify  their judgement to the Lord lieutenant and chancellor in proper form and on  this certificate a patent be make November the that year car to Edward Cowper  and his heir under the rend in the certificate reserve and that Arthur Cowper  lessor of the plaintiff be son and heir of the say Edward Cowper Gilbert  report er p the bill of exception far say that it be give in evidence for the  defendant that queen Elizabeth by letter patent date the that of June in the  that year of her reign give those land to the provost fellow and scholar of  Trinity college and their successor and that they the saint of November year  Elizabeth grant they to Maurice Fitzgerald and his heir in feefarm under the  rend of S and that Maurice Fitzgerald be a forfeit person prout per search set  out in order to settle this case three thing be to be consider first the  general frame of this Act and what person be oblige to claim in pursuance of  it second the particular construction of the college clause three the  consequence to the title of Ireland if claim shall be allow that be not save  in the certificate first of the general frame of the Act and what person be  oblige to claim by it by this statute all the land that be in seize and  sequestration be vest and settle in the king without office or inquisition but  this be not for the king mere use and benefit but the king be in nature of a  royal trustee for answer the several use and intent of the Act and this be in  pursuance of the car c in Gilbert which several land be to be set out to such  adventurer as shall advance money for the reduction of Ireland the land vest  in the king be to be divest by the claim of the several party in interest and  these person be by the Act of parliament to make their claim by a certain time  appoint the word be that all person and body politic and corporate who have  not already put in their claim before the commissioner do put in their claim  within the space of thirty day immediate after the proclamation make by the  chief governor which proclamation be not to be make till the commissioner for  execute the Act shall arrive at Dublin and shall have meet for the execution  of the Commission but as soon after as may convenient be and that after the  say time shall be expire no claim shall be receive but the party leave without  remedy and debar for ever now there be three sort of person particular concern  in this Act first the soldier and the adventurer second the innocent that be  to be restore three the several person and body politic mention in the Act by  name first the soldier and adventurer and these be entitle not only in  pursuance of the car c but likewise by the king royal declaration which be  incorporate into this Act and say that the land and tenement which the  adventurer and soldier possess the that of may shall be confirm and make good  to they but those person no doubt be oblige to claim in order to divest the  land which by the vest clause be in the king this be plain from the two clause  of make out certificate for by these the commissioner be empower to make out  their certificate accord to every man interest and on such certificate the  chief governor with the advice of the Council be to order letter patent under  the great seal so that the adventurer and soldier be to begin a Title from the  king he be to make out his right before the commissioner and the patent be to  be grant not in the usual way where the patent be ex agreeableness by letter  from the king and fiat to the Lord chancellor but these patent be ex debt is  owed Justitice and find only on the certificate of the commissioner without  any order from the king second the innocent that be to be restore these come  under the divest clause which immediate follow after the vest clause in the  king the word of the proviso be that the Act shall not vest or be construe to  vest the land of innocent protestant or innocent papist their innocent heir  executor or administrator now these likewise be oblige to claim in pursuance  of the Act because they be oblige to make out this qualification of innocence  but when they have make that appear they be not enforce to take out any new  patent because they be not to begin any new Title from the king but remit to  their old Title to such land as they claim and the land Gilbert come out of  the crown not by any patent or new grant but by the divest clause in the Act  of parliament but then the adventurer and soldier be to be reprized wherever  such innocent be to be restore and the word be that he shall be forthwith  reprized so that the Gilbert report er p reprisal be to go acquire step with  the restitution this appear by the enact clause immediate follow the divest  clause and also by another clause in the instruction three the several person  and body politic mention by name in the Act those of several sort some that be  restore to their old title or estate other that obtain new one first those  that be restore to their old estate and those by the first Act be not oblige  to claim because they be not oblige to make out their innocence since they be  declare innocent by Act of parliament nor be they oblige to make out any Title  to their estate because they claim by their old Title to which they be remit  and not by any new grant from the king and such be the archbishop bishop Deans  duke of Ormond and other but here a distinction be make for my Lord  clanrickard and several other papist restore by name in the Act of parliament  enter into more land than they be entitle to and therefore such person who  claim under such clause be by the Act of explanation to make out their Title  to the several parcel of land they claim before the commissioner for the  execution of the Act within such time as shall be by they limit or in default  thereof to forfeit two year value of the land in their possession respective  second as to those particular name in the Act they be to begin new title their  clause be in confirmation of letter patent grant from the king and then the  particular of the estate grant appear in the patent as in sir George lane  clause or else the particular of the land be mention in the Act of parliament  as in sir Robert southwell clause and in these case there be no occasion to  claim because they have Title by letter patent or by the Act itself so in the  duke of York clause there seem no occasion to claim which vest the land of the  regicide in the duke of York and the reason be because by the instruction it  appear that those land be ascertain by a certificate return by the  commissioner into the exchequer for it appear by instruction that the  commissioner be to return a particular of their estate in the exchequer upon  their first sit to do business and here no reprisable person be in possession  for the regicide be in possession who be forfeit person but in all other case  I take it where the person be to begin a new Title from the crown and there be  only general word in the Act of parliament there they ought to claim because  the commissioner be to ascertain the particular that be to pass by such clause  I can it say but that if a Act of parliament shall grant in general term all  the estate of I S but that it will pass by the Act Gilbert yet such be the  wisdom of the legislature that where property be concern the statute do never  grant estate and interest without ascertain they in the act themselves or  without settle some mean whereby they may be reduce to a certainty for such  Act will breed confusion instead of a certain distinction and settlement of  property when these person that be particular name in the Act enter into their  several estate those adventurer aid soldier that be possess of they and oust  be reprised and these be favour of the king they easy obtain that such as be  oust by their claim shall be immediate reprised and therefore we find that in  the Act of explanation those who be remove from the duke of ormond estate and  afterward reprized in catherlough shall retain two three of it be possess the  that of may and there be such number of those that come in on the commissioner  stock of reprisal so many innocent restore whereby the adventurer and soldier  be reduce to a necessity of claim reprisal that the stock of reprisal fall  short and therefore the soldier and adventurer be by the Act of explanation  retrench one three of what be their real due but it be the perfect model of  that Act of parliament that the soldier and adventurer be not to be remove out  of what he be in possession of for any restitution till he be duly possess of  his two three this be provide both at the beginning and end of the Act of  explanation after this retrenchment there seem to be room make for every body  in pursuance of the Act of explanation for by this Act if a innocent claim  more than be his due the adventurer or soldier in possession have it in his  election either to give it up to the claimant and have recourse to the Gilbert  report er p stock of reprisal or choose it as lot and try it with the claimant  who be to set up no Title but what he have put into his claim two year time be  think a competent time in which all these matter ought to be settle and  therefore a clause be add to the Act of parliament that in case which shall  happen before the commissioner which be doubtful and the Act find defective in  point necessary for carry on the intend final settlement that the commissioner  or any three of they may acquaint the Lord lieutenant or chief governor and  Council with their proceed and doubt and such order for amendment enlargement  of period explanation and direction as shall therein be make by the Lord  lieutenant and general governor and Council shall be as effectual as if the  same have be insert in the Act this be the topstone and finish of this  building for it be apprehend by the legislature that some time shall be give  before every man right shall be settle and adjust and the Lord lieutenant and  Council be arm with a power to fix every man in his proper settlement so that  there may never after be any controversy or contention about it and this they  have do by their answer or resolution of doubt where they have order that  where any certificate of letter Gilbert patent shall have be pass to person  entitle they shall hold and enjoy the land against the king body politic and  all person whatsoever unless those who title be save in such certificate now  the person entitle must be understand the soldier and adventurer who by the  Act be entitle to receive certificate for otherwise the confirmation will be  utter insignificant for the construction that be make by those who argue for  the defendant be only that if a certificate be grant to those that have right  to they they shall have right whereas the meaning of the Act be to make the  certificate final to the party that after they have be retrench they may never  after be disturb in that part which they enjoy but if the construction be that  they be in all point to be entitle to the certificate or else they be to be  open to all other title then it will amount to no confirmation at all and this  rule make for the final settlement of all adventurer and soldier and their  security will come to nothing second we come now to the provision for the  college which in the Act of explanation stand thus provide always and it be  hereby enact and explain that no land whereof the provost fellow and scholar  of the college of the holy and undivided Trinity of queen Elizabeth near  Dublin be seize in fee in the year and be now in their actual possession nor  any land hold by virtue of any grant lease or feefarm from the say provost  fellow and scholar and forfeit to his majesty shall be dispose by virtue of  this or the say former Act but that they and every of they remain and be in  the provost fellow and scholar and their successor for ever subject  nevertheless to the payment of such quitrents for the say forfeit land as  adventurer or soldier by virtue of this or the former Act ought to pay any  thing in this or the say former Act contain to the contrary notwithstanding  this clause be not only a clause of restitution but likewise of augmentation  of revenue to the college and the reason of augmentation at this time be that  the restauration have in its consequence lessen their income for during the  usurp power the college have several land give they which belong to the  archbishop of Dublin the dean and chapter of saint Patrick and bishop of meath  which by the Act of settlement be all restore to they again and therefore the  land hold of they in feefarm and forfeit to the king be grant to they in  compensation but whatever be the move or procure Cause of this grant yet it be  still a new grant and as such it be to be expound so that as to the land which  be hold of they in feefarm and forfeit to the crown these be a augmentation  and gift from the king and the college be to begin a Title from he and  therefore they be to be pass to the college by certificate and patent and they  be not immediate vest in the college by the Act till they be claim nor can  they as it have be argue for the defendant be immediate execute by the Act in  the Gilbert college as the statute which transfer use into possession and that  for many reason first because there be no description of the land by quantity  and other convenient certainty and therefore not be certain in themselves must  be reduce to certainty by somebody else for it can never be suppose the  statute intend to Gilbert report er p execute the land without set out and  describe the particular of the land that be so to be grant and convey second  that which put this matter out of doubt be the clause which oblige the college  to pass a certificate and patent the word be that the commissioner shall  appoint book to be make of the Allotments of adventurer and soldier the  augmentation of bishop and provision for the college of Dublin and on  certificate under the hand and seal of the commissioner express the name of  the person with convenient description denomination and number of acre that  then the Lord lieutenant shall grant a patent without any letter or warrant  from the king by which clause it be plain that the provision videlicet all the  provision of the college must be pass to they by certificate and patent as  well as the several lot of the adventurer and soldier and there be the same  reason it shall be so because they be to begin a Title and the right be to  pass out of the crown to themselves and if the commissioner be to grant a  certificate there must be a claim before such commissioner for they can not  certify a right till they have notice there be such a right in they three  there be another clause in the statute that show there be a necessity that  they shall claim and this be a clause that stand subsequent to the college  clause videlicet provide nevertheless that no reprizable soldier adventurer or  officer show before the that of June or protestant purchaser in Connaught and  Clare be remove out of any part of the premise which they be to have by this  Act before they be reprized for the same accord to the say statute and indeed  it be the whole Plan of the Act of explanation that the reprizable person be  to be actual reprized before he be to be remove to make room for any person  that be to be restore so that this person be in possession of the land belong  to the college be not to give up any till such time as he be restore to other  land and therefore the college must needs claim before the commissioner  otherwise it be only keep during the time they be to claim and then they will  oust the person in possession without any claim at all which be contrary to  the whole design and tenor of the Act of parliament fourthly this be the  contemporary exposition of the Act of parliament because they do actual claim  in pursuance of the Act and these claim have be read to the court and these  can it be say to be ex abundant caution since the word of the law require that  a certificate and patent shall be pass of they but those who have argue for  the defendant have very much rely that since the word of the Act be that no  land hold by Gilbert virtue of any grant feefarm or lease from the college and  forfeit to his majesty shall be dispose of by virtue of these act but shall be  and remain to they for ever anything in this Act to the contrary  notwithstanding that therefore every disposition of these college land by the  commissioner be absolute void that t commissioner have no power to dispose  that what they do be in person non judge and that this clause be to be  construe as the non to stand before in patent and as a exemption and the land  contain in this clause be out of the power of the commissioner it be very true  that if the commissioner have no power over those land by virtue of this  clause and that their disposition be void then no confirmation can operate to  make a void clause good nor will the plaintiff have be within the resolution  of doubt if what the commissioner have do be in person non judge but the  commissioner have power over the land grant to the college and this appear  plain from what have be say already first because the commissioner have a  power to declare whether the land have be forfeit or not for they be to  declare whether the person that hold of the college be innocent or not and if  this clause be to be construe as a exception out of their power their they  will make no declaration of the nocency or innocency of the person hold the  land and consequent the college can have no Title for they derive Title by the  attainder or outlawry of Fitzgerald for high treason for they have set out the  inquisition though they say he be guilty per search and the Title they set  upon this record be by the declaration of nocency by the commissioner set  forth in the plaintiff Title so that if the declaration be void the college  can have no Title which conclude plain these land be not out of the verge or  power of the commissioner second if this be a exemption of the land out of the  power of the commissioner they will have no authority to reprize such  adventurer and soldier Gilbert report er p as be turn out by virtue of this  clause and by the clause such adventurer and soldier be not to be remove till  he be reprized so that to make such construction on this clause as if it  extend to exempt the land will be to construe it in a manner that will make it  inconsistent with that part of the Act if then the college ought to claim then  by the clause they be debar by their own nonclaim and if the certificate be  not void but only voidable by the clause of the college then by the clause but  more especial by the Act for resolution of doubt such certificate be confirm  against all person and body politic three there be no doubt but the Act of  resolution of doubt confirm the certificate against the claim of any innocent  person that be not express mention within the certificate and the clause for  the innocent be much strong pen than that for the college the word be that  this Act or any thing therein contain shall not vest or be understand or  construe to vest in their majesty their heir and successor or otherwise to  prejudice or take away Gilbert any estate from any innocent papist their  innocent heir executor or administrator and yet the confirm clause set up the  certificate against their Title if they be not express mention in such  certificate now the word in the innocent clause that they shall not vest be  much strong than the word in the college clause that they shall not be dispose  of the innocent be a clause of restitution to the land to which the king have  no tittle by forfeiture the college clause be a new grant of land under a  forfeiture if therefore by the resolution of doubt the person that claim by  certificate be to hold against the Title of the innocent he ought to hold  against the Title of the college where it be not mention in the certificate to  consider the consequence of this doctrine if this certificate shall be adjudge  void and this twofold first that the adventurer and soldier will be perfect  strip of his inheritance because he can not be reprized which be to destroy  the Title of a person who be a purchaser for valuable consideration under  several act of parliament wherein by those act he be entitle to a relief and  where he have likewise pay a half year rend for the king royal bounty which go  towards the charge of the Act and likewise one penny per acre to the  commissioner and SubCommissioners for settle the Act and likewise retrench by  the Act of explanation one three of his real due and by the term of that Act  be not to be remove till he be reprized now if after all this construction of  the defendant be to take place after all these payment and deduction he will  be turn out without any satisfaction at all whereas the college only suffer by  their own Laches and negligence where they ought to claim second the last and  most terrible consequence of all if this certificate shall be adjudge void be  that it will introduce a uncertainty of property through the whole kingdom  that which be the present happiness of the kingdom of Ireland be that after  all the revolution and change which have be in their property they be now come  to so firm and last a foundation that it be to be hope will never be shake and  the very basis of this establishment be this certificate and patent this be  the beginning of every man Title man have no deed nor evidence high to show  who estate it be before the date of the certificate I take it therefore that  these law of settlement and explanation be oh be construe accord to the intent  of the legislature for the quiet of the kingdom and always liberal to be  expound to the settlement of person interest and it will be a very dangerous  thing to the peace of the kingdom if the certificate and patent shall in any  case whatsoever be construe to be in person non judge I shall have all manner  of tenderness for the right of the college they be nursery of religion and  learning and therefore all donation for increase and augmentation of their  revenue be to be liberal expound but I dare not make such a exposition in  behalf of the college as will let in a general uncertainty into the property  of the Gilbert whole kingdom and if I shall adjudge the certificate and patent  to be void I do it know what will be the consequence of such a judgement how  many other certificate and patent may be contrary to the direction of the Act  be what no man live can foresee and if any person shall meet with success on  such a question as this and receive a judgement in his favour that a Gilbert  report er p certificate and a patent be void it will beget infinite question  on other certificate and patent and so by degree the whole Act of parliament  will be unravel on statute that be make for quiet the kingdom such resolution  be to be make as tend to the peace of the nation and it be better the  Nonclaimant shall lose the right he will have have if he have claim than a  general uncertainty shall have be make in property by the negligence and  Laches of those who have not claim it be a general rule of judgement that a  mischief shall rather be admit than a inconvenience it be only a mischief to  the defendant if their right be bar by their own Laches in not claim but it  will be a inconvenience to the whole kingdom if the certificate and patent  under which the title purchase and Settlements of this kingdom shall stand  shall be adjudge void and in person non judge wherefore I think judgement  shall be give for the plaintiff