atkins case thomas Harrison and Elizabeth his wife plaintiff edmund Southcote  and William moreland esqr defendant July the saint see U S A v MRae lr Eq SC  ves Thebill seek a discovery of the defendant moreland whether Southcote be  not a person profess the popish religion before he convey the freehold and  copyhold estate t the defendant in the bill mention as a purchaser thereof a  plea of the statute of the that and that of will for prevent the growth of  popery so far as it go to the discovery whether Southcole be a papist allow  the case the plaintiff make by his bill be that Elizabeth his wife be the only  daughter of George style who be the young brother of Thomas style late of  Watton in Northamptonshire and first cousin and heir to Winifred Southcote  decease former Winifred style the only daughter and heir of Thomas style that  Winifred be seize of a freehold estate at Watton of the yearly value of pound  and of a copyhold estate in Lincolnshire of the yearly value of pound which  descend to her upon the decease of her father Thomas style do in intermarry  with the defendant Southcote that in the marriage settlement date the that of  January the say estate be limit to the use of the defendant Southcote and his  wire for life remainder to the issue of their two body remainder to the  survivor in fee that on the that of April Winifred die without issue upon who  decease Southcote insist that he become seize in fee of those estate under the  settlement but the plaintiff charge that Winifred be educate in the popish  religion and so continue to her death and that the defendant Southcote now do  and always have profess the popish religion so that by several act of  parliament make for prevent the growth of popery and to disable papist from  take any new acquisition Winifred have not power to make such conveyance of  these estate and settlement the same in such manner nor be her husband capable  to take any land or estate by purchase but all the land of Winifred descend at  her death to her next protestant heir at law and that the plaintiff Elizabeth  be the heir at law to Winifred and a protestant the real estate of Winifred  upon her death descend on her and the plaintiff Thomas Harrison in right of  his wife be become entitle to the possession of the same and ought to have be  let into possession but the defendant Southcote be conscious of his own  disability of take these estate go to the other defendant moreland the next  morning after his wife be bury and tell he the necessity he be under of convey  these estate before the plaintiff Elizabeth as next protestant heir can  recover the same or give notice of her claim thereto and then desire the  defendant moreland to permit these estate to be convey in atkins trust for he  and to prevent the plaintiff come at the same and without any valuable  consideration for such conveyance that such agreement be enter into by the  defendant Southcole do accord convey the freehold and copyhold estate to  moreland in fee by some deed but be never duly register as the act of  parliament require that Southcote be in so great a hurry to convey these  estate that they be even convey before moreland ever see the estate or have  any estimate make of the same and the conveyance be complete before the  plaintiff have any account of Winifred death and therefore they can not have  make any entry upon the estate or have give any notice of their claim that  from the death of Winifred to the execution of the conveyance to moreland be  only nine day during which time the defendant Southcote never enter upon or be  in the actual possession of these estate or appear among the tenant after the  death of Winifred to the time of the sale or ever receive any money on account  of the rend thereof after her death till such sale that the defendant  Southcote can not be look on as the repute owner of these estate never have be  in possession thereof and as the same be convey to moreland under such  circumstance and in a fraudulent manner and without a consideration good fide  pay and the plaintiff be entitle as aforesaid they file their bill the that of  November and pray that moreland may be decree to reconvey these estate to the  plaintiff and that he and the defendant Southcote may account for the rend and  profit atkins er p as to so much of the plaintiff bill as seek to compel the  defendant moreland to set forth or discover whether Winifred Southcole do at  any time during her life profess the popish religion or which seek to compel  this defendant to set forth or discover whether the other defendant Edmund  Southcote do at or at any time before his conveyance and surrender to this  defendant of the freehold and copyhold estate in the complainant bill and  herein after particular mention profess the popish religion or which seek to  compel this defendant to reconvey all or any part of such freehold or copyhold  estate to the complainant or which seek to compel this defendant to discover  any of his title deed or write relate to the say estate or any part thereof  this defendant do plead in bar and for plea say that by a act of parliament  make in the that and that year of the reign of his late majesty king William  the three entitle a act for the further prevent the growth of popery it be  enact that if any person educate in the popish religion or profess the same  shall not within six month after he shall attain the age of year take the oath  of allegiance and supremacy and also subscribe the declaration express in a  act of parliament make in the that year of king Charles the second every such  person shall in respect of he or herself and to or in respect of any of his or  her heir or posterity be disable and make atkins incapable to inherit or take  by descent devise or limitation in possession reversion or remainder any land  tenement or hereditament within the kingdom of England c and that during the  life of such person or until he or she shall take the oath and make and repeat  the say declaration the next of his or her kindred which shall be a protestant  shall have and enjoy the say land c without be Accountable for the profit by  he or her receive during such enjoyment and this defendant for further plea  say Edmund Southcote be or claim to be seize in fee of and in the several  freehold message land and hereditament herein after mention and to be also  seize and well entitle to he and his heir accord to the custom of the manor of  Walton in the county of Northampton in diverse copyhold message and also be or  claim to be possess of and well entitle to several leasehold message for the  remainder then to come and unexpired of a term of year grant by the dean and  chapter of Peterborough and be in actual possession of the say freehold  copyhold and leasehold estate he do in the month of April apply to this  defendant and propose to sell all the say freehold copyhold and leasehold  estate and all his right title and interest therein to this defendant or the  sum of pound which he then declare be in his judgement the real value of the  say estate but at the same time agree that if upon a further view and  valuation moo shall appear to exceed the real and just value thereof he will  return such overvaluation money or make a allowance to this defendant for the  same and after take some short time to consider the defendant do agree to the  proposal and that he will upon execute the conveyance pay to Southcote pound  in part and give he a bind for the payment of pound residue thereof with  interest after the rate of pound S per cent p r Ann and Southcote in two or  three day afterward be full satisfy of this defendant ability to pay pound do  agree to accept such bind and by indenture of lease and release date the that  and that day of April and duly enrol in the court of common plea between  Edmund Southcote of the one part and this defendant of the other part in  consideration of pound mention to be pay or secure to be pay to he the say  Edmund Southcote by this defendant he the say Edmund Southcote do give grant  bargain sell release and convey unto this defendant his heir and assign all  that capital or chief mansionhouse with the appurtenance situate c at Watton  aforesaid then in the tenure and occupation of the say Edmund Southcote and  all other the land c therein mention to hold the same unto and to the use of  this defendant his heir and assign for ever and for the consideration  aforesaid he the say Edmund Southcote do assign to this defendant all and  singular the land and tenement of he the say Edmund Southcote in the county of  Northampton by lease of the dean and chapter of Peterborough to hold the same  to this defendant his executor administrator and assign for the remainder of a  term of year which be then to come and unexpired and for the consideration  aforesaid he the say Edmund Southcote do by indenture of release covenant with  atkins this defendant that he and his heir will with convenient speed well and  sufficient surrender all his copyhold land to this defendant and his heir and  this defendant for further plea say that the say Edmund Southcote do on atkins  er p or about the first of may duly surrender out of court into the hand of  the lord of the manor of Watton by the hand of the steward all the copyhold  estate and this defendant be afterward duly admit tenant to hold the same to  this defendant his heir and assign for ever and this defendant for further  plea say that at or before the time of the execution of the lease and release  he the say Edmund Southcote deliver to this defendant the title deed and write  relate to the say estate and this defendant at the time of the execution of  the say indenture do real and actual pay and deliver to the say Southcote a  bank note for pound in part of the consideration money and this defendant at  the same time enter into such bind as be before agree upon and this defendant  for further plea say that in the beginning of the month of may he enter upon  and take possession of all the say estate and the say Edmund Southcote and the  tenant attorned to this defendant and he have ever since be in the possession  of the say estate and entitle to receive so much of the rend and profit as  become due since ladyday and the defendant afterward take a view and make  inquiry into the value of the say estate and upon such view and inquiry find  that they have be great overvalue and inform the say Edmund Southcote thereof  and insist that a very considerable abatement shall be make he in respect of  such overvaluation out of the say pound and Southcote be satisfy they be not  worth more than pound do agree to abate or allow to the defendant pound out of  the principal money secure by the say bind and accord by deed poll endorse on  the say indenture of release date the that of November it be declare and agree  between the say Edmund Southcote and this defendant that pound shall be abate  in respect of the deficiency in value of the say estate and that the say  Edmund Southcote shall by a endorsement on the bind give a discharge to this  defendant for pound part of the money thereby secure and do agree that the say  bind shall remain a security for the pound and interest and no more and this  defendant for further plea say that the say pound pay and secure to be pay by  this defendant to the say Southcote for the purchase of the say several  freehold copyhold and leasehold estate be a full and valuable consideration  for the purchase of all the say estate all which matter and thing this  defendant do plead to so much and such part of the complainant bill as  aforesaid and demand judgement whether he ought to be compel to make any  further or other answer atkins by way of answer the defendant moreland insist  that he have not any intimacy with or any particular friendship for Edmund  Southcote before the time of make the contract but that the purchase be fair  and open and make good fide and not colourable or mere to serve the design of  Edmund Southcote nor do Edmund Southcote ever apply to he to take or permit  any conveyance whatsoever of all or any part of the estate in trust for the  say Edmund Southcote or upon any trust or confidence whatsoever without pay a  full and valuable consideration for the same nor be the conveyance make in  trust for Edmund Southcote or in or upon any other trust or confidence nor be  any kind of agreement at any time make or enter into by or between this  defendant and the say Edmund Southcote concern the say estate upon any such  trust or confidence or with any kind of secret or fraudulent design whatsoever  and that Edmund Southcote at the time of the sale of these estate and for a  considerable time before be in the occupation of all the estate at Watton in  the county of Northampton and desire the defendant to permit he to continue in  the occupation thereof as tenant to this defendant it be thereupon agree  between the say Edmund Southcole and this defendant that the say Edmund  Southcote shall hold and enjoy the same from ladyday then last for four year  it be customary there to let land from four year to four year at the clear  yearly rend of pound and the say Edmund Southcole have ever since be in the  occupation of all the estate at Watton under the agreement but have not pay  the yearly rend of pound to this defendant to who this defendant be indebt as  aforesaid this defendant have not require payment thereof and that the rest of  the estate purchase by this defendant be freehold and lie in Lincolnshire and  at the time of his purchase be of the yearly value of pound S and be now rend  at that rend and that Edmund Southcote be at the time of the contract and have  from the death of Winifred be the repute owner of the say estate which this  defendant purchase as aforesaid and that this defendant do now and at the  atkins er p time of make the purchase and at all time have profess the  protestant religion and that he purchase the say estate mere and for his own  benefit and that the complainant have not before the time when the defendant  purchase the say estate recover nor have since recover the say estate nor have  the complainant give any notice whatsoever to this defendant before the fill  of the bill of any claim or title thereto for or by reason of any kind of  disability or incapacity or otherwise howsoever neither have the complainant  then or at any time since enter any claim to the say estate in open court at  the general session of the peace for the county ride or division wherein any  of the say estate lie though the complainant may have have immediate notice of  the death of Winifred Southcote she have be long ill and this defendant admit  he do not see the say estate before his purchase thereof but rely on the  declaration and agreement of the other defendant atkins Mr solicitor general  Mr Murray for the defendant moreland the question be whether Winifred the wife  be or the defendant Southcote himself a papist or person profess the popish  religion and if this be a bar to the plaintiff have a discovery or the relief  pray the bill be not bring by a protestant next of kin but by the plaintiff  simple as heir at law of Winifred and thereby entitle to take the land by  descent and state there be a bar in his way for in consideration of a marriage  of Winifred with the defendant Southcote both the freehold and copyhold land  be settle on Southcote for life and the wife for life and to the heir of their  two body and to the survivor in fee but in order to remove this bar and to set  asideathe conveyance charge at the time of the settlement she be a papist and  he also one and be so now and be entitle to the fee on survivorship the  settlement be void that Southcote conscious of this look out for a protestant  purchaser the defendant moreland but do not give any consideration or at least  a valuable consideration and that it be a fraudulent transaction to defeat the  plaintiff and therefore pray a reconveyance of the freehold and copyhold land  so pretend to be sell the principal question be whether Southcole sell so soon  after the death of Winifred can be say to be such a visible owner as within  the meaning of the act of parliament of the Geo cap can convey to a protestant  upon a purchase the defendant moreland insist that Southcote be in possession  of these estate a twelve month before Winifred death and in possession also  from her death till he sell that the plaintiff never put in a claim at the  court of session in the county where the land lie within a twelvemonth after  Winifred death the question then be whether he have put in a good plea to the  discovery the bill be bring by the plaintiff Elizabeth as a heir at law in  general to have a discovery of a disability or incapacity in some person under  who moreland derive on this ground only that there be a flaw in his title  arise from this incapacity whether the conveyance to Southcote from moreland  be a good conveyance be a mere legal question it be clear settle now that no  person be oblige to make a discovery which will subject himself to a  disability under these act as for instance will mike he liable to be prosecute  as a papist I shall cite a case to show the same rule will hold in favour of a  purchaser under papist smith v read ante S c before Lord chancellor Hardwicke  in report in viner and Bacon abridgement it be lie down there this act must be  consider as a penal law and there be no one instance say the court where a  person have be oblige to discover whether he purchase under a papist atkins he  cite also a case of Jones v Meredith in Lord chief baron Comynss report this  be a fact to be make out in evidence at law and as the rule of law be no one  holding to put forth he himself so upon the equity of that rule no person here  shall be oblige to discover what will subject he to a penalty or any thing in  the nature of a penalty Lord chancellor you have not plead in bar to the  discovery of this matter only but to the discovery also of title deed Mr  solicitorgeneral the bill do not go at all upon the title deed for it do not  charge title deed under former settlement where there be intails I be allow to  suppose every word in the plea to be true because the plaintiff may reply to a  plea as it be in nature of a answer and falsify then whether it be not a good  atkins er p bar to discovery and relief depend on the construction of the  statute of the Geo cap the end of the statute of the will cap to prevent  papist have land property do not restrain they from sell but invite they to  change their property and turn it into money and to make this act more  effectual the Geo enact that no sale for a full and valuable consideration of  any manor c or of any interest therein by any person be repute owner or in the  possession or receipt of the rend or profit thereof heretofore make or  hereafter to be make to or for any protestant purchaser and mere and only for  the benefit of protestant shall be avoid or impeach for or by reason or upon  pretence of any of the disability or incapacity in the say act incur or  suppose to be incur by any of the person make or join in such sale or by any  other person from or through who the title to such manor c be or shall be  derive unless before such sale the person entitle to take advantage of such  disability or incapacity shall have recover such manor by reason of such  disability or incapacity and have enter such claim in open court at the  general session of the peace for the county c wherein such manor lie or arise  and good fide and with due diligence pursue his remedy in a proper court of  justice for the recovery thereof aver by the plea that the plaintiff have not  before the time when the defendant purchase the say estate recover nor have  since recover the same nor have they give notice of any claim before the fill  of the bill nor have they enter any claim at the quarter session so that the  save clause be out of the case and must rest entire upon this be or not be a  trust that be whether a purchase mere for the benefit of a protestant  purchaser or a trust for Southcole the legislature mean to encourage the  papist to sell as fast as he can that before the protestant can put in his  claim he may get rid of his estate out of land therefore those part of atkins  the bill suggest a precipitate sale and that there be no regular survey be  immaterial I be at liberty under this act for argument sake to admit moreland  know he to be a papist for it be no flaw in the title the word of the act  indeed be for a full and valuable consideration but if moreland shall have buy  for one year purchase less than estate in the neighbourhood sell for it will  not upon account of these word make it void in a case of wildgoose v more  before your lordship this point be settle the annual value be pound as charge  by the plaintiff bill and that the estate be part freehold part copyhold and  part leasehold but it be insist by the defendant moreland the annual value be  but pound and that pound be pay for it and have swear it be absolute a  purchase for his own benefit and no trust I allow Southcote sell on purpose to  prevent a protestant claim for the act itself encourage papist to sell but if  sell popish estate a year and a half under value suppose it be so be to defeat  this purchase it will be attend with this bad consequence that it will  effectual discourage protestant from purchase Mr Hoskins of the same side  argue that smith v read be a weak case than the present for the defendant  there be a devisee under the will of one mrs pain who be charge to be a papist  and therefore can not devise and mrs read be only a volunteer as claim under a  will the plea cover the title deed in general but it be not a plea to the  discovery of conveyance to the defendant moreland himself he have swear too in  the very word of the act that he pay or secure to be pay a sum of money as for  a full and valuable consideration and the only reason why no sum of money have  be pay since be the bring of this bill let a papist come to a estate by  purchase or by devise he never can dispose of it to any other person because  he can not make a title and therefore this act of parliament of the Geo cap  come in aid of the statute of the will and be very useful one for the public  and if Southcote be a visible owner of the estate then moreland be clear  within the act for he buy of a papist in such a situation as be describe there  and consider the whole nature of the estate twenty year purchase at which rate  moreland pay be a full and valuable consideration Lord chancellor before the  counsel go on for the plaintiff ask if they can atkins er p distinguish this  case from smith v read for if they can not he will not differ from himself and  say that whether the point of collusion between the two defendant come out to  be fact or not he ought not to compel moreland to discover what will defeat  his title the distinction between this and the case of smith v read as take by  plaintiff counsel be that in that case there be a bill bare to discover  whether the devisor be a papist and can able of devise therefore the defendant  read by discover that atkins mrs pain the testatrix be a papist will have  subject herself to a forfeiture because of a disability in the devisor but  here the defendant moreland may safe discover that the vendor Southcote be a  papist and yet not forfeit for the act of parliament protect he as be a  protestant purchaser from a papist Lord chancellor say he think there be a  distinction between the two case and bid the counsel for the plaintiff go on  Mr Noel for the plaintiff the defendant moreland have not pay one farthing of  the purchase money except pound at first Southcote appear to be still in  possession for it be not pretend that any rend have ever be pay to moreland he  insist that he be a purchaser under the act of parliament make in the three  year of the late king that act be never make to protect such a purchaser for  it be impossible Southcote can be the repute owner in so short a time as eight  or nine day after the death of his wife and therefore no person who may have a  claim upon this estate can in that time give the notice require by the statute  and such a popish vendor must not only be the visible and repute owner of the  estate but must also be in the actual receipt of the rend and profit of such  estate Mr clarke of the same side the ground such a plea go upon be the  defendant subject himself to a penalty and the case of smith v read turn  altogether upon this the discovery here can not direct or indirect subject the  defendant moreland to a penalty and therefore be not within that case the Geo  cap sect plain suppose the person sell to be under such a incapacity as be  within the two pound will or any other of the recite act Southcote and  moreland live a hundred mile distant the one in ken the other in  Northamptonshire it be state by the bill that Southcote be a entire stranger  to moreland and the purchaser do not pretend there be any survey before he buy  nor that he or any agent for he ever see it suppose it be a plea of a purchase  for a valuable consideration without notice he can not possible protect  himself under such a plea but for money actual pay security to be pay be not  sufficient and the plea will have be overrule independent therefore of the  vendor be a papist the defendant here can not support his plea be money only  secure to be pay and on the circumstance of the present case as moreland have  never have any possession or ever receive any rend and as Southcote be still  the owner he can not on such a plea of a purchaser without notice to a bill  bring by any person stand in the place of Southcote support such a plea atkins  Mr Evans of the same side the five clause of the Geo I which recite a part of  the will and enact that the recite part of the say act of parliament shall not  be hereby alter or repeal but the same shall be and remain in full force as if  this act have never be make show clear it be not intend to give any advantage  to papist or to alter the disable statute because here be a express save to  those statute and therefore be mere a interposition in favour of the  protestant purchaser in the case of Jones v Meredith there be a plea and  demurrer by a mortgagee and both overrule and for this very reason because  such a discovery can not prejudice he the same reason will hold in the present  case the discovery will not subject the defendant moreland to a forfeiture if  there be a private trust for the benefit of a papist it be clear not within  the meaning of the act of parliament and strip this case of the defendant oath  and nothing can be strong to show this be a trust here be no transmutation of  possession the purchase money not to be pay till by which time they will be  able to judge whether the protestant heir will put in his claim a security  only to be give for the purchase money a security too the interest of which be  equal as near as can be calculate to the rend of the estate moreland put in  possession that he may set off the atkins er p rend against the interest due  on his bind and if such a case so circumstance shall prevail it will great  encourage scheme to evadeathis act of parliament Mr solicitor general be reply  it be very odd to say that a volunteer from a papist shall protect himself  with such a plea and yet a person under a more favourable light a purchaser  for a valuable consideration shall not the allow the plea do not preclude they  from reply and impeach the truth of it and then the court can determine on the  evidence of both side whether Southcote be a papist or not nor do this  preclude they from go into evidence at law upon a ejectment to show he be a  papist and suppose it shall come out there he be not a papist then why shall  the plaintiff compel a discovery which he may obtain at law this case differ  from the common case of purchaser because the moment the estate be sell the  papist have no lie upon it for the purchase money and therefore be not within  the rule they compare it to of a plea of a purchaser for a valuable  consideration without notice Lord chancellor the rule be that penal law be not  to be construe accord to rule of equity and if I shall allow this plea general  it will entire overturn the intention and effect of the act of parliament make  in the Geo for the consequence will be a contract may be so make and content  atkins rive that if there shall be no litigation within the time that then it  shall be a trust only for the papist but if a controversy between the repute  owner and protestant next of kin then it shall be deem a absolute purchase  that rule of a man not subject himself by such a discovery to a penalty be lie  down out of great tenderness and the court will not break in upon it unless  there be a good foundation there hardly can come a case before the court  liable to more suspicion than the present as to the fairness of the purchase  here be a person who have no title to the inheritance of the estate till after  the death of the wife because the limitation be to the survivor and their heir  on the that of April mrs Southcote die in nine day after in which it be very  difficult to acquire a repute ownership a sale be make to the defendant  moreland without any knowledge of the estate in the purchaser or previous  treaty the contract for pound and only pound pay then by deliver of a bank  note and a mere personal security of a bind to pay the residue in a year time  no mortgage take of the estate not so much as a surety join with moreland in  the bind can any thing appear more colourable do any wise or prudent man ever  sell his real estate for pound and take only a bind in payment afterward a  subsequent transaction pass and the purchase money reduce from pound to pound  which show that the party jump it before it be say this be a circumstance  which give great credit to the purchase I think not at all but the true reason  be they find the consideration be great above the value and conclude that may  be a imputation on the fairness of the transaction I and therefore a abatement  be make of pound mere to take off the force of that objection another  suspicious circumstance be Morelands grant a lease immediate upon his purchase  of these estate to Southcote for the term of four year this be not a plea of a  purchase for a valuable consideration without notice and if it have will not  have do because you must plead it be a purchase for a valuable consideration  without notice upon money actual pay or else you be not hurt the plea here  consist of two part saint a plea of the statute of will cap sect dly of the  statute of the Geo cap sect it be not pretend the defendant moreland be a  papist himself therefore no penalty can fall upon he on that account but yet  he insist if he shall discover the person under who he buy be a papist it will  defeat his title to be sure in general by the determination in the case of  smith v read Bac ab ante which be hear the that of march and not in Trin term  the book which take notice of it be mistake as to the time it be settle where  there be a plea of a title derive voluntary or by a devise from a papist and  not suggest to be a colourable trust that by reason of the penal atkins law  which will attach upon he from the incapacity in the devisor to devise the  defendant shall not be compel to discover whether the person under who lie  claim be a papist atkins er p the distinction take by the plaintiff counsel in  the present case and which they insist make the difference from other case be  that moreland have not plead himself a devisee or volunteer from a papist but  a purchaser for a valuable consideration from the defendant Southcote and that  there be not all the averment here which bring he within the protection of the  statute of the Geo there be no doubt a plain distinction between the case but  I be of opinion still he be not oblige to discover whether Southcote be a  papist for a purchaser be not to be hurt by any discovery as here for instance  where he may suffer a loss by a penal law and though the averment of the plea  be that the plaintiff have not give notice of his claim and observe other  ceremony require by the statute yet it may be disprove and come out contrary  to the averment of the plea and if it shall appear in evidence that the  plaintiff have make his claim with due diligence and as soon as he have any  notice thereof then if the defendant moreland be to make a discovery that the  person under who he purchase be a papist lie will overturn his conveyance and  though he have actual pay part of the purchase money he never can get it back  again for the law make such conveyance void a papist not be capable of convey  and the heir may recover in a ejectment the rule of law be that a man shall  not be oblige to discover what may subject he to a penalty not what must only  so honeywood v Selwin post vol on this head see bird v Hardwicke vern sharp v  carter p W anon Eq ab pl earl of Suffolk v green ibidem pl ante S c Duncalfe v  black ante butler v Allington post vol east India company v Campbell Ves  Brownsword v Edward Ves chetwynd v London ibidem smith v read Bac ab ante  Chauncey v Tahourden post vol bishop of London v fitche bro Charles Rep and  though upon the particular circumstance of the case it may not possible create  a forfeiture as it do not appear at present with certainty whether such a  discovery will create a forfeiture yet eventual it man do so and therefore  with regard to so much of the plea as rely upon the statute of the two will it  ought to be allow as a plea may be separate see Duncalfe v black ante note I  be at liberty to apply it to the different part of the defence the next  question therefore will be as to the other part which oblige the defendant to  discover his title deed I be of opinion there be no ground to allow the plea  here either as to the discovery or relief moreland have not plead himself a  purchaser for a valuable consideration without notice and therefore there be  no pretence for this part of the plea especial as it go to the discovery of  that very settlement by which it be aver the heir at law be bar and every heir  at law have a right to inquire by what mean and under what deed he be  disinherit atkins the next consideration as to the relief though a heir at law  be not entitle to come into this court upon a ejectment bill for possession  yet he be entitle to come here to remove term out of the way which will  otherwise prevent his recover possession at law and have also a right to  another relief before he have establish his title namely that the deed and  write may be produce and lodge in proper hand for his inspection and therefore  the plea shall not be allow as to the relief pray in this respect upon the  whole I be of opinion that the plea ought to be allow as to the discovery seek  by the bill whether Winifred or Edmund Southcote be not papist or person  profess the popish religion but as to all other part of the plea it must be  overrule Reg lib a fol but by the statute Geo c papist take the oath therein  prescribe be enable to take land tenement or hereditament by descent devise  limitation or purchase