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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
B08654 The case of the Kerry quit-rent, 1681 1681 (1681) Wing C1096A; ESTC R205941 12,106 17

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and adjudged it The Other meaning being absurd and Naturally impossible And even the Court of Claimes did allow 54000 Acres of Lands profitable according to the extreme Collumn in satisfactision of 2551 l. which is 9 times more then was due at the Act rates of 450 l. per thousand Acres Objections to the Premissies ALTHOUGH the Lands in question were set out by the Reduc'd Collumn as aforesaid and no alteration or correction was made thereof by page 33 of the Act of Settlement Though the King and Government allowed the Reduced Collumn anno 1662. and 2 Judgments passed for it anno 1663 4 though the Court of Claimes allowed 54000 Acres by the extreme Collumn to pass in satisfaction of 2551 l. debt Though the Lord Lieutenant and Council represented to the King the Inconveniences of the extreme Collumn anno 1670. and though the present Chancellor and Lord Chief Baron of the Exchequer together with the Lord chief Justice Booth and Sir Richard Reynell charged all quitrents in Conaught Anno 1677 upon the aliquot part not the extreme measure yet John Marshall was advised to plead Anno 1678 To which the Attorney General Replyed in behalf of the reduced Collumn once twice thrice a fourth time and the late farmers designing to gain 30000 l. by the extream Collumn did after 2 yeares sinister machinations upon the 20 January 1680 object as followeth Viz. object 1. That the Column of aliquot parts or values and the reduced Collumn were sinisterly pasted on to the Books of the Survey since their being put into the Office Answer The contrary was proved by those who made them and the view of the Books doth shew the same to be Impossible and where the reduced Collumn is cleerest There are no pasted Labells at all Object 2. The latter Branch of the Printed Instruction was not Intended for distinguishing Profitable from Vnprofitable and therefore did not Warrant the distinguishment as it stands in the Reduced Collumn Answer The Surveyors Swore they understood it so and Acted accordingly and their work was admitted after special debates there upon Besides the words of the Instructions explain themselves Object 3. That the said Latter Branch was only to exempt the Surveyors from measuring small parcells otherwise then by Estimate Answer Their First Instruction Oblidged them to measure the smallest parcells of Forfietd Lands and their Books are full of parcells under ten Acres and some of under an Acre are returned by their Quantity Figure and Scituation and not by Estimate Object 4. That the Instruction if it were intended for distinguishment of Profitable from Vnprofitable was not pursued But instead of such Distinguishment There was onely a Par made between the best and all other Lands by seting forth how many Acres of the latter was worth one of the first or best Answer The Fact is denyed for the Par was between doubtful intermixt Lands and indifferent Good Pasture or the Course Arrable of the place which is the same as Profitable so as the Reduced Acre though compos'd of 40. Acres was worth but about 14 pence before the War as appears by Record and Lett Anno 1678 for less by the late and present Farmers Object 5. The Surveyors had no Standard whereby to make this Par and therefore the same is a meer Whimsey and void Answer 1. They had a better Standard for this distinction between profitable and unprofitable then they had for doing it by Lines 2. They had the value before the Wars and the advice of the most experienced men of the Country In so much as they did not differ from the civil Survey allowed by the Act above 500 in 21000 Acres Object 6. They did not return how mmay Acres of course Land was worth One of Profitable but of Pasture and so varied from their Instructions Answer In Straffords Survey Pasturable and Profitable was taken for the same thing most Lands being Profitable but as they are Pasturable for what is termed Pasture in the Collumnes is called Profitable upon the Maps of Straffords Survey as it also is on the Kerry Survey Object 7. The Instructions require the returning of the aliquot part But the Survey Mentions no Aliquot part But how many Acres of course is worth one of Good or the like Answer T is The same thing to say That the Lands A are One Quarter Profitable or Pasturable as to say That 4 Acres of A being course Dubious intermixt Lands are worth One of indiferent good Pasture viz. such as was worth 14. d. the Acre before the Wars Object 8. The 4th Collumn which is the total content seemes to be the extream Collumn and the 5th now called the extream to be the reduced Collumn and the 8th now called The Reduced Collumn to be an Vnreasonable Reducement upon a Reducement Answer 1. The total of 2 or more Numbers is never called the Extreame of such Numbers Nor is the part of a total ever Termed the Reducement thereof 2. No Lands intirely Profitable standing in the 5th Collumn was reduced in the 8th but were the same in both Lastly In some Baronies the 4th Collumn is wholely omitted being onely the Result of other Collumns and put in for Conveniencie onely Object 9. The 5th or Extream Column hath for Title the Word Profitable in most Places Answer In that Title the word Profitable must be understood dubious intermixt Profitable made clear and neat Profitable by the 7th Column and set off in the 8th Collumn As a Stack of Corn is called Corn though mixt with straw Chaff but the same being Winnowed by the 7th Collumn The 8th Collumn doth contain the Corn in the sack or fit for use so as the 5th 7th and 8th Collumns are as three Syllables of the same word Nor can either of them be used alone or a part 2. The Surveyors have sworn this to be their meaning in their Returnes The Bookes themselves shew it but the Maps and abstracts more expresly Besides in the Barony of Corcaguiny The extreme Collumn hath for Title part Profitable and the Reduced Collumn hath for Title Profitable and this Barony was Surveyed by the same hands upon the same Instructions with the rest Moreover The Maps are alike even where the Titles differ and the words Acres to be deducted to make the other Profitable are in both Forms Nor were the Surveyors limited to the method of their Collumns and the variety of their wording doth best prove the unity and Identity of their meaning Object 10. These Aliquot parts or values are no where but in Kerry nor there but where Petty and Marshal are concerned Answer ● The Aliquot parts or Reduced Collumn which is the same thing are in 4 Baronys of Kerry where Petty and Marshall are not at all concerned Nor have they any interest in Tirawly nor in the rest of Conaught or Clare The aliquot parts are also in the Down Survey of Tyrawly and every where in Conaught and Clare And although
then the Value of the Land or that 5668 Acres of cleer Lands could not have been found amongst the 54000 Acres inserted into the Certificate of the Court of Claimes besides such a way of proceeding is without precedent as well as without Reason Object 3. That although the Lord Lieutenant and Council upon report of the Committee of the Council by Instruments signed by the Lord Lieutenant Lord Chancelllor Lord Chief Justice Lord Chief Baron and many others had recommended the Reduced Collumn to be Judicially confirmed as it had formerly been That the extreme Measure had been a loss to the King and would intitle the Farmers to Defalcations c. Yet the King had done nothing upon it Answer The King by his several Letters since hath pressed the Consideration and Settlement of the Reduced Collumn and this plea it self was filed upon an Order of the Lord Lieutenant and Council in Trinity Term 1678 grounded upon his Majesties said Letters and after the Earl of Essex his Reducement to 148 l. had been made Object 4. That the Conaught Survey was not like the Kerry Survey and that if the Late Commissioners for the setling of Conaught had charged Quitrents onely upon the Aliquot part and not the extream content It did not concern the Pleadant to take notice of it Answer 1. The Kerry and the Conaught Surveyes are the same in substance and in their Maps though they do differ onely in the form of their Books of Reference 2 The Reason of charging Quitrents in Conaught by the Aliquot part is far less and less Warrantable then in Kerry and those transactions are produced by the Pleadant as precedents à fortiori for that the Reduced Acres of Conought are of Triple value to those in Kerry And for that the present Chancellour and Lord Chief Baron of the Exchequer were Judges and Commissioners with the Lord Chief Justice Booth and Sir Richard Reynel for Conaught so as these Transactions were also pleaded as Arguments ad hominem as well as ad rem As to the other Chief Question viz. WHether according to the true meaning of the Clause in the 37th Page of the Explanatory Act Which appoints That the legal Quit-rents shall be so Moderated as to incourage Plantation That for scarce three years enjoyment of the Premisses The Kings Ministers shall dispose of them the remainder of 21 years and a half and We might add give the profits of them to those who never had any right thereunto and who have Grosely contemned and Violated the Orders of Court made concerning the same As to this question We shall onely leave the Reader to an afidavit made the 25th of July 1681 before the Lord Chief Baron and hereunto annexed until further proceedings shall call for a larger discourse both upon this and the former question also Onely Noting for the present That out of the said Afidavit there do arise the following Arguments for discharging of the said Lands from all Seisures Custodiums c. viz. 1 Arg. It is most certain that the King hath had these Lands by seisure Custodium from Easter 1675 to Michaelmas 1681 which is 6 years and a half and that the Grantees never medled with them in any measure but between Michaelmas 1668 and Easter 1675 Which is also 6 yeares and a half so as by the severest Rules that ever were conceived the King was never to have one half of the Profits for his Quitrent as in this Case he hath had 2 Arg It is certain That besides the said 6 years and a half from 1675 to 1681. the King and others under him did also possess the premisses from Easter 1660 to Michaelmas 1668 which is 8 yeares and a half more making in all 15 yeares which is certainly sufficient to pay the Quitrent for 6 years and a half 3 Arg. of the 6 years and a half hitherto supposed to have been enjoyed by the Grantees It will appear That not 3 years of the said 6 years and a half hath been so enjoyed by them viz. 1 By Reason of Levari's and Seisures happening within the said 6 years and a half 2 By the Usurpation of certain persons called REFRACTORIES 3 By the frequent and cruel distrainings of the late Farmers for what was neither due nor possible to be paid 4. For that the 2392 l. acknowledged to have been recieved is not full 3 yeares Rent according to the Leases by which the Grantees did or might have let the same if they might have been quiet Wherefore 3 yeares and a half of the said 6 years and a half was held by the King and those who directly or indirectly made use of his Name so as the said 3 yeares and a half added to the last mentioned 15 yeares makes 18 years and a hlaf and is a sufficient quitrent for the other 3 yeares 4 Arg. The said 2392 l. is not 2 years and a halfs Rent according to the present Custodium Rent of 1120 l. per annum so as the Question now is whether 19 years be a sufficient Quitrent for 2 yeares and a half 5 Arg. The said 2392 l. is not One year and a halfs Rent at the Rate of 1830 l. per annum which the Farmers have certified the Lands which yeilded the said Money to be worth so as the last Question is whether 20 yeares be not a sufficient quitrent for one year and a half Whereas by the Earl of Essex his most severe Rule one year should suffice for that purpose so as the other years all quitrents being discharged together with the value of the said Woods is to be accompted for to the Grantees 6 Arg. Moreover although the Earle of Essex and the other Commissioners made a Rule That ⅖ parts should be given to the King for Quitrent against which there are many weighty Objections yet even according to that Severe Rule it self The King was paid his quitrents by Anticipation even in that proportion up to Easter 1681 by the first 8 yeares and a half for that 8 years and a half is the ⅖ of 21 yeares a quarter But It will rather appear That the King had these Lands ten years before the Grantees had any profit at all out of them and consequently was paid up till the year 1685 and moreover that he had held them the Equivalent of 15 yeares when the Grantees had held them but three yeares before the Custodium was granted Anno 1678 And also that the said Custodium was granted after his Majesty by the advice of the Earl of Essex himself and Lord high Treasurer of England in his Letters of the 28th of April 1676 and the 8th of December 1677 had directed the contrary These 6 Arguments rising gradually one above another We hope will be as Easy stairs by which the Lamest understanding may get up to the Top of this Truth to wit That the said Lands ought now to be and long since to have been discharged from all seisures Custodiums c. even according to the severest Rules that ever were made in pursuance of the said Clause in the 37th Page of the Explanatory Act But much more according to the Rates made by the Lord Lieutenant and Council and according to the dictates of common sense and Reason and the common Rule of the whole Kingdom For if but one year in 8 or if but ⅛ part of the Profits be generally given to His Majesty for Quitrnet throughout the whole Nation then It is wonderful That above 18 years disposure of the premises should not have satisfied the Kings-quitrents for the Grantees enjoyment of the same but 3 years onely As the Subsequent Afidavit Importeth The Affidavit made before the Lord Chief Barron Hene