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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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these three Surveys are represented in three several Forms Yet in Substance and in their Maps They are all One and the very several Forms are Convertible each into the other Object 11. That the Law saith the Profitable Acre ought to consist of 160. Perches but by admitting the Reduced Collumn the said Acre may contain 2000. or more Perches Answer If in a Surround of 2000. Perches the Tussocks and spots of Pasture amount but to 160. Perches Then the Whole Surround is but one Acre Moreover notwithstanding this Law 5000. Perches were charged but as one Acre in Conaught by the present Judges of the Exchequer and other Judges also in the year 1677. upon the Settlement of Conaught Object 12. 1 Those that set out Lands Anno 1655. 2. Those who charged Quitrents Anno 1661. 3. And the Court of Claims did all take the extream Collumn for the legal content 4. And Dr. Petty was paid for Measuring according to the same 5. Nay those who had judgments for the Reduced Collumn did afterwards quit them and submit to the extream without Reluctancy Answer These 5. Objections are briefly answered thus 1. Those who set out Lands by the Extreme Collumn did it 1. Before the Survey was settled and without Order 2. By private Agreements not publick Authority 3. In a way by depressing the Act Rates which was Equivalent to the doing of it by the Reduced Collumn and according to what was then a Law 2. As to charging Quitrents by the Extreme Collumn It was done by unskilful persons most erroniously and soon after corrected by the King Chief Governours of Ireland and by two Judgments of the Court of Exchequer And all this before the Down Survey or Quitrent was confirmed by the Acts. 3. What the Court of Claims semed to do was done by their Sub-Commissioners who Acted by bookes which had not the said 2 Collumns in them who were under a Byas of Acrage and what they did of this kind in the Lord Dillons decree was afterwards corrected by the Exchequer Moreover the Court of Claimes themselves allowed 54000 Acres in satisfaction of of 2551 l. debt whereas less then 6000. Acres answers the same 4. That Dr. Petty was paid by the Extream Collumn is a matter uncertain and full of questions But if he were not he ought to have been so paid by the Extream Collumn for that his Contract bears it and because he ought to have rather more then less wages for measuring of Bogs Rocks Shrubs and Loghs and for making of extraordinary Collumns and Estimates then for Measuring of plain and pleasant places 5. Those who quitted the Judgments which they had for the Reduced Collumne did it for far greater Advantages And those who suffered them so to do and to Retrench by the Extreme Collumn to the great damage of the common stock may at some time or other be question'd for it For all these Transactions were made truly Subsilentio And whether they be good or not must be lest to the Law Another sort of Objections Object T Is Dangerous to alter what the Court of Claims have once done and Executed Answer The charge of Quitrent made by the said Court was Judicially altered in the Lord Dillons Case being the very same with this 2 This Act of the Court of Claims was but Ministerial 3. They were though worthy men both Judges and parties in this matter 4. They held forth an Easier Quitrent viz That of an half peny per Acre by the extream Collumn so as Marshalls Lands in Dunkeron which are chargeable with 103 l. by the Reduced Collumn would at an half peny per Acre by the extream Collumn come but to 74 l. which sum stands still in their Certificate 5. Moreover the Earl of Essex his Reducement did supersead what the Court of Claims had done 6. Besides they Acted by defective Copies of the Down Survey in Which the Reduced Collumn was wholely omitted Object 2. That the Earl of Essex had moderated these Quitrents from 492 l. to 148 l. per annum and that his Certificate taken out thereupon was an Estopel to the Pleadant's claiming the Reduced Collumn Answer 1. The Lawyers have by Book-Cases shewn that the mention of an Estopel is not onely Odious but in this Case Illegal and dishonourable to the King 2. It was never pleaded to be an Estopel in the Attorney Generalls four Replications and that t is too late to plead it now Lastly The Earl of Essex his Certificate was not to take Effect till Letters Patents were accepted upon it which was never done because the said Certificate had many things in it which in respect to those who made it shall not be mentioned Nor had the Earl of Essex c. any intention or authority to raise Quitrent above the Law But to abate them so much below the Law as might incourage Plantation Object 3. Although the Attorney General hath confessed that the Reduced Collumn is an integral part of the Down Survey and made upon the Printed Instructions that the Method of this Survey is the Rule for satisfing the Soldiers and charging Quitrents That the Lands in the Extream Collumn are but dubiè confusé Utiles That the Lands in the plea were set out by the Reduced Collumn That the Conaught Survey is the same as in Kerry and that the Charging of Quitrents there is the same as is demanded here c. It was said That his Confession though so often and deliberately reveiwed was of little weight Answer The Law-Books shew that in Matters of fact his Confession binds the Court for otherwise his Confession was of lesser force then that of the meanest Attornyes which bindeth his Clyent Besides the Fact confessed was all proved over again before the Court. A Third sort of Objections were Answers to what Marshal had pleaded viz. Object 1. THat the 2 Judgments of the Exchequer in behalf of the Reduced Collumn passed Subsilentio and were afterwords declined Answer 1. They were exposed to all persons concerned 2. The Record publickly read in Court 3. They were grounded upon Certificates of the surveyor General and the oath of the particular surveyor 4. The King the Lords Justices Lord Lieutenant severall Judges and privy councellors allowed the same the like things moreover the said Judgements were declined subsilentio for sinister ends for greater advantages but never Judicially or otherwise null'd to this day Lastly it apears not how little or how much that Strepitus must be which the Law calls Silentium Object 2. That though 54000. Acres seem to have been set out for 2551 l. which summ requires but 5668 Acres at the Act Rates of 450 l. per thousand Acres in Munster Yet in truth 5668 Acres were only set out in satisfaction of the said debt and that the rest being above 48000. Acres were cast in for satisfaction of Incumbrances and Chiefryes wherewith the Lands were charged Answer It is strange That the Incumbrances were 8 times more