case the governor of Stephen hospital Dublin appellant daniel swan respondent  that march on a bill bring to recover the estate of a person decease upon the  allegation of his be a papist and therefore unable to devise the court direct  a issue to try whether he be at any and at what time or time distinguish the  time respective a papist or person profess the popish religion but on a appeal  the decree be reverse and the bill dismiss decree of the Irish chancery  reverse it appear that the weight of evidence in favour of the appellant as to  the fact of the decease be a protestant be so strong that the court of  chancery be by no mean justify in direct a issue which be not on all occasion  to be grant mere on the ask for but the plaintiff may seek his remedy at law  see post can bro p c Edward cusack who live to a great age be bear of  protestant parent he have one brother and four sister who be all protestant he  be breed up by his father as a protestant till he be about five or six year  old when his father die at or year of age he be place out apprentice to his  uncle Joseph Fenton a tanner in Dublin who be likewise as well as all his  family a protestant to this uncle and one Joseph rabo who be likewise a  protestant he serve his apprenticeship in he marry mrs Ledwidge his first wife  who be a protestant he live many year at the town of Athboy where as well as  elsewhere he be a constant communicant at the sacrament when administer in the  parish church till his death particular so long since as in the year and be  breed a tanner he go through and serve all office in the corporation of tanner  first as warden and afterward as master in he be admit to the freedom of the  city of Dublin to which none but protestant be ever admit and take the several  oath require upon that occasion after the death of his first wife he marry  Diana Bunbury his second wife who be also a protestant of the establish church  as well as her parent in a word he be bear breed live and die a protestant and  be a religious observer of his duty at church and a constant brown communicant  with both his wife at the sacrament at his parish church in the town of Athboy  and saint James in Dublin the different place of his residence during his  whole life which be extend to a period of about year the appellant the  governor of the hospital be incorporate by act of parliament pass in Ireland  George two by which the corporation be to consist of the Lord primate Lord  chancellor archbishop of Dublin bishop of clogher chancellor of the exchequer  and the lord chief justice and Lord chief baron all for the time be and  several other respectable person with liberty to purchase or take any land and  hereditament not exceed pound per and of the alienation gift or devise of any  person have a right and not be otherwise disable to alien grant or devise the  same as well for the finish the building of the say hospital as for the relief  support and maintenance of the sick and wound person to be place therein  Edward cusack make his will date the d of June by which after direct his body  to be bury in the churchyard of Athboy and give two guinea to the minister who  shall read the funeral service he give to John Hopkins esquire all his land  and hereditament and all other his estate real and personal lease for life and  year and other effect subject to the payment of his just debt and funeral  charge upon trust to stand seize and possess thereof for the use of such child  of his body as shall be live at his death and if he shall die without leave  issue live at his death or bear in due time afterward or if such child or  child shall die before without leave issue of their body then in trust to  permit his wife Diana cusack to dispose of pound of his personal estate to who  she please and also to permit her to receive the clear rend and profit of all  his estate and fortune during her life and after her decease in trust and for  the use of the appellant the governor of the hospital for the use and benefit  of the hospital for ever the testator then devise to Henry cusack son of his  brother William cusack brown er p a annuity of pound during his life and to  the appellant the minister and churchwarden of the parish of Athboy and their  successor the yearly sum of pound sterling to be issue out of his land in  Castletown during so long time as his lease thereof from Richard Vincent  esquire shall subsist to be by they apply for put out the child of the say  parish apprentice and he appoint his wife Diana cusack sole executrix in trust  of his say will on the saint of October the testator die without issue leave  Diana cusack his widow and executrix who survive he and prove his will in a  few day after his death a bill be exhibit in the court of chancery in Ireland  in the name of the respondent as a protestant discoverer against Diana cusack  the widow and executrix the appellant the governor of the hospital as devisees  of the testator estate in trust for the charitable purpose aforesaid brown  expectant on the death of Diana cusack his majesty attorney general of Ireland  the appellant the minister and churchwarden of the parish of Athboy in respect  of the annuity of pound give to they and their successor by the will and  against John Hopkins the trustee and the say Henry cusack the annuitant who be  also the testator nephew and heir at law state the will of the say Edward  cusack with a variety of purchase make by he at different time during a course  of year precede his death of leaseholds and other interest some for life  renewable for ever and other for long term of year together with several  security take by he by mortgage and judgement for money lend and charge that  he be in possession of or entitle to these several acquisition from the  respective purchase till his death the bill then state the several act pass in  Ireland for prevent the growth of popery and charge that Edward cusack be bear  of popish parent that they educate and breed he up in the popish religion  while he continue with they or under their care which be till his age of or  year that he be then take as apprentice by his uncle Joseph Fenton who be a  protestant from which time he pretend to be a protestant of the church of  Ireland as by law establish but in truth be a papist or person profess the  popish religion not only while he continue with his say uncle as a apprentice  but all his life afterward and in manifestation of these charge that he go  frequent to mass keep company with papist and popish priest who he harbour and  particular one Plunkett that he contribute to the rebuilding a masshouse when  throw down and lend one of his own house to celebrate mass in while it be  rebuilding that he continue a papist to his death and in his last illness send  for a priest who administer the sacrament to he accord to the ceremony of the  church of Rome the bill further charge that Edward cusack at the respective  time when he make the several purchase or take the several lease mortgage and  other interest and estate before mention and during his whole life be a papist  or person profess the popish religion and be therefore incapable of take the  same and that though he sometime pretend to be a protestant yet it be do with  a intent to evade the popery act and to screen the say several purchase and  interest from any protestant discoverer and that he so artful conceal his be a  papist that he enjoy the say several estate and interest during his life  without any suit commence against he by any protestant that he die seize and  possess of the say several estate and interest and of a considerable personal  estate of the value of pound and upward and that his widow prove his will and  possess herself of all his real and personal estate and receive the rend of  the real estate amount to pound per and that the respondent be a protestant  and that the land in question be lease at much less than twothirds of the real  value and the leasehold and other interest be of such a nature as the say  cusack be incapable brown of take but for the benefit of the first protestant  who shall sue for the same the respondent therefore pray that be the first  protestant discoverer he may be decree to the benefit of the say several  purchase or acquisition and to all other make by cusack contrary to the act  for prevent the growth of popery with a account of the profit the appellant  the governor of the hospital by their answer to this bill deny that Edward  cusack be bear of popish parent or educate in that religion but on the  contrary say that his parent brother and sister be all protestant that his  father breed he a protestant till five or six year old when the father die  that brown er p he be first bind apprentice when very young to a protestant  master and afterward take apprentice when about or year old by his uncle  Joseph Fenton who be a protestant that he be marry to his first wife who be a  protestant in at which time they both receive the sacrament in the parish  church of Athboy that he be admit as a protestant to the freedom of Dublin in  as a tanner and serve the office of master and warden and all the other office  of that company that his second wife be also a protestant that upon inquire  into his religion since the fill of the bill it appear from the parish book of  the parish of Athboy where he frequent reside that in the year and and for  several year afterward till his death he frequent receive the sacrament in the  say parish church that both he and his second wife when he be ill frequent  receive the sacrament at home from the minister or curate of the parish where  he live and they deny his ever go to mass or converse with priest except in  the way of business and in the common act of good neighbourhood or that he  ever harbour Plunkett or send for he in his last illness but say he be sudden  take ill and at once deprive of his sense and die in half a hour after his be  first seize that he be always look upon to have be a strict and rigid  protestant and regular in the discharge of the duty of the protestant religion  and in his attendance on the performance of divine service to his death and be  therefore qualify to take the several estate mortgage and interest in the bill  mentioned and insist upon their right thereto Diana cusack the widow by her  answer repeat every circumstance mention in the precede answer as to her  husband and his parent and relation be all protestant and as positive deny  every charge in the bill as to his be a papist or converse with they and say  she be marry to he year before his death that previous to the marriage and in  consideration of her portion he settle estate upon her to the value of pound a  year and that she marry he without the least suspicion that any part of his  estate be liable to discovery Henry cusack the nephew and heir at law by his  answer swear that he have know Edward cusack and his family brown year and  that his parent brother sister and both his wife be all protestant and that he  be himself a firm and real protestant Hopkins the trustee and the appellant  the minister and churchwarden of Athboy all likewise concur upon oath in the  same common answer that cusack and all his family be protestant the attorney  general disclaim any right to the annuity of pound give to the minister and  churchwarden of Athboy except on behalf of the particular charity to which it  be give Diana cusack after answer marry the appellant John sellen Allen and  die intestate in he administer to her and the appellant Putland about the same  time take administration with the will annex to Edward cusack in trust for the  appellant the governor of the hospital who upon the widow death become entitle  to the devise estate in possession the respondent reply to all the answer and  issue be join the religious persuasion of Edward cusack be full examine into  by proof on both side take as well in the examiner office in Dublin as on  commission into the country the respondent witness who appear to have be of a  inferior rank endeavour to prove Edward Cusacks have be present by stealth at  different time during his life at the celebration of mass see it sometime  through a window and at other time clandestine in his own house about or year  before his death that he once contribute to rebuild a ruinous masshouse and  while it be building suffer mass to be celebrate in his coachhouse some of  they believe he to have be a papist in his heart and one witness only pretend  his father and brother have be papist but at the same time admit his mother  and sister have be protestant they prove his apprenticeship to Fenton a  protestant and that his wife be protestant and the short continuance of his  last illness be prove but no proof of the charge of his be attend by a priest  upon that occasion and the witness be contradictory to and inconsistent with  each other the appellant support their own answer and those of their  codefendants by a variety of unexceptionable witness brown er p Elizabeth  Robert a sister of Edward cusack who be at the time of her examination say she  know he from his birth to his death that his parent brother and sister be all  protestant of the establish church that he be no more than five or six year  old when his father die that he be educate in the protestant religion from the  time he be able to speak or say his prayer and ever after continue so that she  see he very often at church and several time see he receive the sacrament  there that at he be bind apprentice to his uncle Fenton who be a protestant as  be all his family that he marry two wife who be likewise protestant as be all  their relation and that she frequent see he and both his wife receive the  sacrament brown at their parish church and be crossexamined by the respondent  she confirm every word of her first examination add that she know he several  time take the oath as a freeman of Dublin and Athboy and deny his ever be a  papist Isaac Dickinson age say he know Edward cusack from till his death have  be his neighbour upward of year that he likewise know William cusack his  brother his uncle Fenton his mother and both his wife prove they all to have  be protestant and that he often see cusack and his second wife attend  religious worship at saint James church and be very often present and see they  receive the sacrament and often receive it with they and particular he see  they receive it the year before Cusacks death George Allen age another  neighbour of Edward Cusacks say he know he above year and also know his  brother two of his sister and his second wife and that they be all protestant  and he likewise prove cusack and his second wife have often receive the  sacrament at saint James church John Ellis d d age the minister of saint James  parish say that he know cusack from to his death and likewise know his brother  one of his sister and his second wife and that they be all protestant that the  brother and sister be his parishioner and he have administer the sacrament to  the brother when ill and that he very often see cusack and his second wife at  church and very often see cusack receive the sacrament there and believe he  have several time administer the same to they Peter cook age the curate of the  same parish know Edward cusack year and likewise know his brother sister and  second wife and prove their all be protestant and have frequent receive the  sacrament at that church at his hand and that he have administer it to cusack  in his own house when he have be ill Richard morass parish clerk of Kilpatrick  age know Edward cusack or year have live year and be parish clerk at Athboy  year while he live there that cusack be a protestant and the witness constant  for the course of or year see he and his wife attend at Athboy church and many  time see they with other communicant attend to receive the sacrament there  John Beaumont the parish clerk of Athboy know Edward cusack year before his  death during which time he live in Athboy and be clerk to cusack some time  that he very often see cusack and his wife attend at Athboy and saint James  church and prove their have receive the sacrament in Athboy church five  different time in and the parish book for Athboy be likewise prove by the two  last witness and it appear by entry therein that Edward cusack have receive  the sacrament at that church at different time so long since as in the year  and brown Edward Reylins age know Edward cusack as long as he remember any  thing and confirm the testimony of the former witness as to the religion of  cusack his wife and two of his sister and their constant attendance at prayer  and the sacrament in Athboy church and say he be so constant a communicant  that the witness have see he go on crutch to church when trouble with the gout  and scarce able to stand and there receive the sacrament along with the  witness grace mercer age know he year ago when he be bind apprentice to Fenton  her father and prove they both to have be ever after protestant till their  death and that all the family of Fenton be protestant Henry go town clerk of  Dublin prove Cusacks be admit to the franchise of that city as have serve his  time to Joseph Fenton a freeman and that he brown er p be previous admit into  the corporation of tanner and that all person admit to the freedom of Dublin  be protestant John pentland apothecary prove his attend cusack in his last  illness that he be immediate take senseless and die in half a hour after his  first seizure about one in the morning and that he neither do nor be capable  of perform any religious duty and he likewise concur with the other witness in  prove he a protestant during year that he know he the Lord chancellor of  Ireland have decline hear the cause as be one of the governor of the hospital  it be hear in his lordship absence on the that and that of February before  Arthur Dawson esquire one of the baron of the exchequer and Robert martial  esquire one of the justice of the common plea and Charles walker esquire one  of the master of the court of chancery three of the commissioner for hear and  determine of cause in the say court in the Lord chancellor absence and on the  that of February the court though they be please to declare themselves satisfy  with the evidence on the appellant part yet from the respondent importunity  and from a apprehension that it be not in the power of that court to refuse a  issue when demand in a case thus circumstance be please to order that the  respondent shall as of the then next easter term commence a feign action in  his majesty court of common plea in Ireland to which the appellant be to  appear gratis and plead the general issue to try at the bar of the say court  by a jury of the county of meath the follow issue videlicet whether Edward  cusack decease in the plead mention be at any and what time or time  distinguish the time respective a papist or person profess the popish religion  and on the return of the verdict such further order be to be make as shall be  fit from this order the appellant appeal insist c York t jewel that there be  no foundation in this case from the great weight of evidence in their favour  to have direct any trial to inform the conscience of the court already so well  satisfy and upon so unfavourable brown a question as that of try a man  religion after his death and that much less ought such issue to have extend to  the whole period of the testator life who live to be year of age instead of be  restrain to the time of his first purchase which be a leasehold for life make  in or to the early period of time reach by the respondent evidence or to any  other certain period but that instead of direct any issue at all the court  ought to have dismiss the respondent bill with cost that if issue upon all  question of fact whether doubtful or not and between all person be matter of  right and ex debt is owed justit the determination appeal from must prevail  but if this be not a matter of strict right and if in any instance where  neither the nature of the case nor any doubt or sufficient decree of doubt  upon the evidence make it necessary to direct a issue to inform the conscience  of the court the court may in their discretion property refuse to direct such  issue and this be conceive to be one of those case and that there be not the  least ground for the present issue especial on a claim so unfavourable in all  its circumstance as that of the respondent that the party to the question be a  protestant discoverer and the trustee of a protestant charity the intention of  the popery law will be at least equal answer by the estate go to the charity  as if the discoverer shall wrest it back again by invert the law to destroy  that very interest which it mean to preserve the heir at law concur with the  charity in support the will from which he receive a valuable annuity and  though there be at present no purchaser before the court yet they must  necessary be involve in the same common fate with the appellant as the charge  of popery will work a general incapacity and affect every alienation make by  cusack during his life that the respondent be attempt to bring a man religion  to a public trial after he be in the grave which be never doubt in a life of  year and to inquire into the sincerity of his heart when he can no long defend  himself whereas if a bill of discovery have be bring in his lifetime and if  there have be real a foundation it may and ought to have be bring he will have  speak for himself and declare his religion but the will still speak for he and  not only evince he a protestant but one of a superior degree and though popery  may admit of work of charity as well as faith they be rare employ out of the  pale of their own church and still more rare to counter brown er p work the  increase of that persuasion in favour of one with which it be at perpetual  enmity that as the testator be a protestant to his last breath so be he from  the first moment he can be say to be of any religion at all even before the  popery act take place and his parent brother sister wife master and every  relation lineal and collateral be the same he be so as soon as he can speak or  say his prayer and be prove to have receive the sacrament as well in as in and  to have be a constant communicant during the whole of that interval to the  brown religious he join the civil test and his admission to the different city  and corporation freedom be precede by his as often take the oath to the  government that if the testator have be a renegade convert and afterward  relapse and become a secret papist as contend by the respondent the claim of  the protestant discoverer will have be at a end for a praemunire will have  incur and the estate be forfeit to the crown that the respondent evidence as  well as the issue direct be adapt to no particular period nor level at any  certain purchase the pretend incapacity be general not only that he can not  devise but that during his whole life he can neither take or alien any  acquisition a case and event in which multitude may be interest and which none  can defend or guard against that if a trial shall be allow to ascertain a  matter at present confess not doubtful the court will scarce be satisfy with  the verdict if the respondent shall gain one this will produce a new trial and  a contrary verdict may again occasion a three and after a multiplicity of  trial the conscience of the court may be less satisfy and inform at last than  at first that the denial of a issue in this cause will not preclude the  respondent from try the question in any other court for though the act give he  a particular remedy by bill in equity in order to entitle he to a discovery  upon the oath of the party yet he have likewise his remedy at law and may  still bring a ejectment and take his chance before a jury on the other side it  be say c Pratt a forester to be in proof that Edward cusack be bear of a  popish father and by he educate as such until he be or year old that he never  make any public recantation of his error and that the several instance of his  go private to mass house after he be a man have mass celebrate in his house  confess to a popish priest and receive the sacrament accord to the rite of  that church all which be continue to the very time of his death full prove he  a papist and that he live and die in that communion that the appellant have  bring no proof sufficient to invalidate the respondent evidence Cusacks  outward profession of protestantism be admit by the bill but one single  instance of his receive the sacrament from the hand of a popish priest and  accord to popish rite be of great weight to prove he a papist than ever so  many instance of his go to a protestant church and communicate there can be to  prove he a protestant the first can proceed only from persuasion and principle  the second may be calculate for a worldly purpose to remove the incapacity  which papist labour under that this be corroborate by the last act of his life  videlicet the desire that his body shall remain uninterred one night in a  common barn for what purpose be easy guess one fact indeed that of the priest  and his two popish niece be with he the evening of his death the appellant  have endeavour to get rid of by pretend it be only to play at card but of this  they have not bring the least proof and it be brown easy to examine the priest  and the niece the order complain of therefore press hard upon the respondent  than the appellant as by the evidence lie before the court he have better  reason to expect a absolute decree than the trouble and expense of a trial at  law but after hear counsel on this appeal it be order and adjudge that the  decree therein complain of shall be reverse and that the respondent bill shall  be dismiss without cost jour vol p brown er p