case the earl of Kildare versus sir morris Eustace all January Lord chancellor  Lord chief justice Beddingfield Lord chief baron Atkins ante case post case  the defendant have obtain a order for the rehear of this cause Mr pollexfen  argue for the defendant single as to that point that by the act of settlement  not only the trust but the land themselves as this case be be actual vest in  the king and consequent what title the plaintiff have be pure a title at law  and not a trust or equitable title and put the case short thus videlicet that  sir morris Eustace be a innocent protestant be possess of the land in question  for the remainder of a term for year in trust for Fitzgerald be a innocent  papist and that the land in question be actual seize by the late pretend  commonwealth and the custodiam of they grant the process by custodiam upon  outlawry form a considerable branch of the civil administration of justice in  Ireland upon a application to the court of exchequer by motion after the  inquisition on the capias utlagatum the land of the defendant be grant by that  court to the plaintiff by custodiam in the nature of a lease reserve a small  rend to the crown see Inst III Vernon and Scrivens report title custodiam  Conroys treatise upon custodiam and report of case upon that subject this  process be notice by Lord Hardwicke hedge v Cardonnel atk and the fact be  admit so to be and be so state in the plaintiff bill and first he observe that  if the word of the act will bear it it be but reasonable that the estate in  law shall vest and go along with the trust it be no prejudice to any one the  trust be the substance and the estate in law Vernon chancery case but as it be  the shadow ndly that the design of the act be the establish the possession of  these forfeit land and to make the title unquestionable which intent be best  answer by vest not only the trust but the land themselves and the act be full  and liberal pen for that purpose that these land be actual vest by the Vernon  chancery case er p enact clause videlicet all land whereof any soldier or  adventurer be in possession or whereof the king be in possession or whereof  the custodiam be grant or that be seize or sequester by the pretend  commonwealth or that any person by or under their title or by reason of the  late war receive the rend or be in possession on the seven of may now the  description of have the custodiam grant of have be seize and sequester c  comprehend the land in question that as to the objection that the vest word  must be take reddendo one one that be that land in possession shall be vest as  land in possession a trust of land vest as a trust c that may hold of land not  include within those particular description but to apply such construction to  such land so describe be to render all choose particular description and the  main body of the act fruitless and nugatory that the particular exception in  the proviso as to protestant estate strengthen the vest clause as to the land  and trust of innocent papist and that the particular pen of this act  distinguish this case from all the case upon other English act for forfeiture  sir John holt argue for the plaintiff that this Act of parliament be make for  these special purpose saint to supply the defect of attainder ndly the want of  inquisition and default of office dly that trust in Ireland be not forfeit  before this act nor be the trust of inheritance in England forfeit before the  stat h as be resolve   Rep fol and insist on the Vernon chancery case case of  smith and Wheeler Mod and that a trust shall vest as a trust only and that  where a traitor be to have a estate on performance of a condition there  notwithstanding the vest clause the king must perform the condition and as to  the exception a cautionary proviso can enlarge the enact part the Lord  chancellor incline that the estate in law as well as the trust be actual vest  but recommend the case to the judge for their further consideration