Because the questions are propounded somewhat doubtfully, we have thought good so to answer as may give satisfaction as well to the questions that are propounded as to the other doubts about the same or of the like nature.
1. The first case16 therefore when any man is attainted of treason, be it according to the common law, or the act of parliament, And then it be found by office that he was seized of any land, the king is thereby adjudged and is indeed in actual possession of the land. And if any other had estate or right to the land he hath no remedy to recover it from the king but by petition. In as much as the Statute of 2. Ed. 6. that allows traverse and monstrans de droit in the like cases, is not (as we understand) in force in Ireland, And though the king having lands by such title, grant them away in fee or fee farm, That changes not the case, but that the patentee ought to hold and continue the possession and he that pretends title must sue by petition and otherwise, as if the lands were still in the king's hands with a scire facias thereupon against the patentee.
In this suite of petition there are many delays as by the writes of search and the like yet because they be favours allowed by the law, to the king or his patentee, they cannot be denied him, being part of his defence.
If the patentee be nevertheless holden out of possession he may take any course by entry of or suite in law to recover the same & damages for the wrongful occupation; In which suits the defendants though they have right cannot relieve themselves thereby: But must of force be overthrown in as much as this right is bound by the double matter of record that is against them, till the same by their petition undone it.
And so likewise if the king hath granted away the lands in fee farm, though the patentee be holden out of the possession the king's rent must still be answered, And therefore the ordinary courses are to be taken for the same by extent seizure or the like wherein there can be no defence against the king's writ for the reason to aforesaid.
And it is just, not to suffer the rent to run in arrearage for else the wrongdoer shall pay no rent and the patentee when he shall afterwards recover it shall be charged with his arrearage.
But if the possessions have continued long against the king or his patentee, or if those erroneous and indirect of trying of rights against the king and his patentees by actions of trespass, ejectione firme, new commission or the like have been allowed by the courts of justice there, And that sometimes by allowance and direction out of England (if by these means the right have appeared against the king And if for those or any other reasons, it shall seem good to your lordships not suddenly to have such possessions removed: It may please you to give these or such other directions as shall seem good to your lordships.
First where the lands are in the king's hands and not granted out: It is at his Majesty's pleasure to forbear to seize the lands, upon bond that if they doe not prosecute their pretended right by petition with effect, so as they prove their right in due form in law within some convenient time to be prefixed, That then they shall yield quiet possession with the mean profits incurred.
And if the any of those things be granted out in which case the patentee be denied his ordinary remedies: yet he may with justice be denied to use any course in the king's name for his benefit, And therefore if he will desire to sue by information upon instruction before his patent it may be refused.
Also the patentee can procure no seizure of the land for himself or his majesty otherwise then for the king's rent as aforesaid, in which case the court may dispose of the land as they shall think most convenient.
Lastly if the patentee can be brought to suffer the possession to continue and accept such bond as is before mentioned for the king till the title be tried according to due course of law with expedition it will be a good quiet.
But in this permitting of them (that pretend title against the king or his patentee) to continue their possession that favour (which is granted out of respect of convenience) would be extended only to so much as the pretenders doe actually manure for otherwise they may make it a colour to the possession of large country whereof they have neither use nor occupation which may tend to the depopulation and decay of habitation therein.
Also (if it so seem good to your lordships) a general direction to the courts there would do well, that they should not hereafter permit those disordered proceedings by new inquisitions, trials in ejectione firme or otherwise by the pretenders against the patentees that have as it seems been heretofore allowed against the king and his patents: But to observe in all things the Rule of Law by which they may judge, and the people enjoy their own with certainty, And thus much touching the questions of the first case.
As touching the second case: concerning the properties granted in the time of King Henry the Eight by the Bishop of Meath unto the said king in exchange for certain personages impropriate although we find some difficulty, and there may be difference of opinions whether the said grant of properties be good, although the same were granted by the said Bishop as ordinary unto the king as supreme ordinary, yet the said king and other his Majesty's predecessors and also his highness having been possessed of the same as a revenue of the crown. We are all of clear opinion that the granting of such rectories in fee, fee farm or lease [gap: torn] erance to his Majesty by extinguishment, suspension or otherwise of the said duties [gap: torn] unto his highness into his Exchequer any the said grants of the said rectories notwithstanding.
As touching the last question whether a fine for alienation be due unto his majesty upon a common recovery suffered in Ireland of lands holden by knight's service in capite: we are of opinion That there is due a fine for Alienation upon such recoveries for that they are now but as conveyances and so accounted in law upon which an use may be raised, and averred as upon a fine or any other assurance.