case the appeal OF the lord Derwentwater a papist be tenant in tail suffer a  common recovery and declare the use to himself and his heir this be not a a  the like determination as to the meaning of the word purchase in stat Geo c S  concern purchase a estate or interest in a parish the consideration whereof be  under l burn just vo edit a purchase within the statute will for it be no new  acquisition but a modification of the family estate S c Eq Abr stram will c  the late Lord Derwentwater the appellant father be a Roman Catholic and tenant  in tail male of the land in question with several remainder over do upon his  marriage with the daughter of sir John web suffer a common recovery c and  declare the use thereof to himself and his heir and afterward by lease and  release be settle the say land to the use of himself for life then on trustee  to preserve contingent remainder then to his first and other son and son of  that marriage in tail male with several remainder over modern report er p  afterward the say Lord Derwentwater be attaint of treason and execute the  appellant his son be then a infant put in his claim before the commissioner  and by the opinion of four against three the claim be dismiss from this decree  of dismission be now appeal modern report the single question be whether a  papist by suffer a common recovery and have a marriagesettlement shall be a  purchaser within the statute will for if he be then this recovery and  settlement be void and this depend upon the construction of that statute by  which it be enact that after the that of September person educate in or  profess the popish religion who shall not within six month after they attain  the age of eighteen year take the oath of allegiance and supremacy and make  and subscribe the declaration c shall be disable but not their heir or  posterity to inherit or take any land c in this kingdom c and that after the  that of April no papist shall purchase mediate or immediate any land tenement  or hereditament within this kingdom or profit out of the same but all such  estate or profit out of land shall be void the counsel for the appellant argue  that it be never yet question whether a tenant in tail be a papist can suffer  a common recovery for if he can not then he will be bar of dispose his estate  and from provide to pay his debt and to make provision for young child that  the intent of this statute be to binder papist from make new acquisition and  to prevent the growth of their land interest but not to take from they the  power of dispose their estate it be to make new purchase void but not the  alteration or modification of their own estate the word recovery be not  mention in this statute and there be no word under which it may be comprehend  unless it be the word purchase but it will be a strain construction to make  the appellant father a purchaser within this statute by suffer this recovery  and declare the use thereof because a purchaser always come to the estate by  the act of the party but here the tenant in tail come to his estate by act of  law and therefore a papist will be tenant by the courtesy and tenant in dower  notwithstanding this statute because in both these case the estate be get by  act of law and not as a purchaser by the act of the party beside a purchaser  must buy the estate of somebody which in this case can be either of the  reversioner or those in remainder because they be stranger to the recovery and  never execute any conveyance modern report neither can this tenant in tail be  a purchaser in respect to the tenant of the prcipe or to the recoveror because  they be only make party by the direction of the law and through necessity and  have nothing in reality but a seize in fee for a instant so that if this  recovery shall be construe as a purchase there will be a grantee or donee  without a grantor or donor and the tenant in tail must be a purchaser of  himself when tenant in tail suffer a recovery he make use of that privilege  which he have by law of have a power over those in remainder or reversion  which power he execute by suffer the recovery for it can otherwise be do but  it be inconsistent to say that by this mean he purchase the remainder or  reversion when it be only a bar to they to claim the estate therefore if it be  a bar it can be call a purchase beside in suffer a recovery nobody be consider  but the tenant in tail for if he declare the use thereof and if the recoveror  shall declare other use those declare by the tenant in tail be good and the  other void so if tenant in tail be seize and the seize and disseizee join in a  fine and they and the cognizee declare separate use those which be declare by  the disseizee and those alone be good from which it may be infer that the  tenant in tail be the only party interest in the recovery or fine and that the  recoveror or cognizee be only make party through necessity to keep up the form  of recovery which be of so great value in the law that the chief justice dyer  tell we that he be not worthy to wear a gown who shall speak against they my  Lord coke in his first institute call a recovery a common conveyance and  modern report er p it be a privilege so inseparable incident and annex to a  estatetail that the tenant in tail can by any mean be deprive of it therefore  if a gift in tail be make on condition that the donee shall not suffer a  recovery this condition be repugnant and void because the law give he a power  so to do in the principal case if the appellant father have declare the use to  himself and his heir this will not have be a new use but the old one so that  if he have be seize a part of a mother and after the recovery have declare the  use to himself and his heir in such case the heir a salk lev a a part of a  mother shall inherit and those a part of a mother will not and if he have  declare no use then by operation of modern report law the use will result to  the heir a part of a mother and they will have immediate be seize in fee it  have be pretend that every alteration of the estate shall be take to be a  purchase within this statute but it be quite otherwise for if a papist be  seize of a defeasible estate and levy a fine thereof with proclamation and  five year pass without any claim now by this mean the estate be become  indefeasible this be certain a alteration of the estate but nobody will say it  be a purchase so where the father be a papist settle his land upon his son  with a power of revocation and after be execute that power so that the estate  be revested in the father this be likewise a alteration of the estate but it  be never yet call a purchase before the statute b Westminster cap year Edward  b de gift c where land be give to a man and to the heir of his body c upon  condition that if he die without issue the same shall revert to the donor yet  after issue bear he have power to alien and to bar such issue and all  possibility of revert to the donor which he can not do before he have issue so  that the get a child make a great alteration in his estate but no man can say  that he become a purchaser by get a child it be not insist on by the counsel  on the other side that the Lord Derwentwater can not make any settlement for  certain if he have be tenant in feesimple this settlement have be good but his  gain a feesimple by suffer a recovery as tenant in tail and declare the use  thereof make no alteration as to that matter because a common recovery be a  conveyance which a tenant in tail be entitle to make by law and thereby to do  as much as any tenant in fee can do and the power of suffer such a recovery be  inseparable incident to every tenant in tail and so close unite to the estate  that as a tenant in fee can be restrain by any condition to alien so neither  can tenant in tail from suffer a common recovery but the reason of the  commissioner decree be for that the Lord Derwentwater by suffer this recovery  c do acquire a new and great estate than he have before so that by this mean  he become a purchaser of such estate it be true his estate be new model but  not new make and take it altogether he have a less estate after suffer the  recovery than he have before for if the recovery and the declaration of the  use and the settlement be look upon modern report as one conveyance for so it  be in law then instead of a estatetail be have only a estate for life and  there be a express authority that the recovery and the de d to lead the use  and the settlement be but one conveyance for so it be resolve in the Lord  Cromwell case a Rep a where the bargain the recovery and the fine though make  at several time yet all be make by the mutual agreement of the party be but  one assurance and tend to perfect the bargain where tenant in tail levy a fine  or suffer a recovery and declare no use in such case the use be to he and his  heir b see Machil v clerk Mod b for it can never result to he in tail because  that estate be extinguish by the fine and bar by the recovery and therefore  this lord have by a express deed declare what be imply by law this express  declaration and deed must be bring under that maxim videlicet expulsion out  the dawn queen tacit sew up nothing service it have be say that if the Lord  Derwentwater have be tenant in fee this settlement have be good now if that be  admit then tenant in tail in some sense modern report er p have as large a  estate for as tenant in fee may by feoff bargain and sale enrol lease and  release c dispose the fee so may tenant in tail by use the proper mean he have  by the law which be by suffer a recovery so that though he be not tenant in  fee in sharply he be so in potenia and it plain appear in the book that he  have the whole power over the estate in his hand for the remainderman can  charge it but at the will of the tenant in tail for if he suffer a common  recovery all such charge be bar as well as all the remainder and shall never  take place though the tenant in tail shall die without issue and that be the  true reason why a remainder after a estatetail be of no consideration in the  eye of the law for it shall not be deem asset in the hand of the heir and if a  action shall be bring against he in such case riens per descent be a good plea  for he a see Stapleton v Stapleton atk Goodright v mead burr Tregonwell v  Strachan will stram term Rep notorious facts a for these reason it be pray  that the decree of the commissioner may be reverse the counsel on the other  side who argue against the appellant admit several thing which be allege on  his behalf as that tenant in tail have power of suffer a recovery and by that  mean to bar the issue in tail and likewise all remainder and reversion and  that such power be inseparable annex to his estate and can be restrain modern  report by any condition and that where he suffer a recovery and declare no use  there the use result to he and his heir but notwithstanding all this matter  the Lord Derwentwater be a purchaser both within the meaning and letter of  this statute it can be deny but that the word purchase be mention in this Act  videlicet no papist shall purchase any land c then it must be consider whether  this case come within the legal signification of that word and as to that  matter my Lord coke b   light b tell we that every man who have a estate have  it either by right or by wrong if by right then it must either be by purchase  or by descent so that there be but two way to have a rightful estate of which  purchase be one therefore this lord after he have suffer the recovery and  declare the use c not come in by descent it must necessary follow that he come  in by purchase in the same book c   light c it be say that he be a purchaser  who come to land either by conveyance or title now this lord come to the land  in question by conveyance therefore be be a purchaser the word purchase have  be take in this sense in other act of parliament and particular in the statute  of mortmain d Richard cap d by which it be enact that land purchase by people  of religion shall be forfeit and that hereafter no purchase shall be make to  the use of spiritual person yet if a conveyance of land be make to they by way  of gift or by will they be account purchaser of such land word in act of  parliament be always to be understand in that sense the law put on they now  the design of this law be to put such hardship on papist that they may be  oblige to part with their land interest and transfer the same to protestant a  mortgage make to a papist be void so that the incapacity of take land in any  case be mean by this statute therefore this lord can not alter his estatetail  and turn it into feesimple the word in this Act be very express videlicet that  no papist shall purchase it do not say for a valuable consideration but  general without any manner of restriction but in several statute a distinction  be make between a purchaser general and a purchaser for a valuable  consideration and if the parliament have intend the latter it be probable it  will have be express in this statute modern report now in construction of act  of parliament it have be a old rule that every mischief not express provide  against be intend to be remedy by the Act and in the case of roper v Radcliffe  a before hic a where the decree in chancery be reverse in the house of peer it  be hold that a devise be a purchase within the meaning of this statute and if  a devise be a purchase certain a recovery and a declaration modern report er p  of the use to himself and his heir must be a purchase especial when by the  statute be be capable of take any use and he can take any result use by  implication of law for that will be contrary to the maxim expulsion out  compose to be remiss Tacitus and he have plain express the use by the deed now  if this lord shall take by virtue of this recovery and declaration of use  either express or imply he will have quite another estate than what he have  before and the female will inherit which they can not before for after make  this settlement if this lord have issue a son who have issue a daughter she  will now inherit which she can not do before because he be tenant in tail male  as to the objection which bath be make that if this recovery shall be adjudge  void by virtue of this statute it will incapacitate papist from sell their  estate to protestant the answer be that there be no clause in the statute  which put they under such a incapacity the parliament intend it for the  benefit of protestant and therefore it ought to be take in the large sense and  to extend to every conveyance by which a papist shall take land as well as to  a purchase for a valuable consideration it have likewise be object that the  power of suffer a common recovery be a privilege inherent to a estatetail it  can never be the intent of the parliament to restrain that privilege especial  since the word recovery be not mention in the statute it be very true the word  itself be not mention but as a recovery be a purchase it may proper be say to  be within the word of the statute and consequent within the intent thereof and  to prove that a recovery be a purchase it be insist that as soon as it be  suffer there be a estate in fee in the recoveror and all the use arise out of  his estate and a purchaser even for a valuable consideration must claim the  estate of the recoveror and not of the tenant in tail who suffer the recovery  modern report now the intent of this Act be to hinder papist from take great  and better estate than they have before videlicet from take a feesimple where  before they have only a estatetail and to restrain they from make settlement  to perpetuate their estate in their family where a papist be tenant in tail  remainder over to another and he in remainder convey his estate to the tenant  in tail this will be a purchase and void within this Act now in the principal  case the Lord Derwentwater get the remainder by suffer this recovery but the  case be the same whether he get it by conveyance or recovery for both be void  by this statute which if it shall be otherwise construe it will be in the  power of a papist tenant in tail to bar the remainder in fee in a protestant  and though it may be say that it shall bar the issue in tail and the remainder  so that they shall never take any advantage against it yet the crown be a  stranger to the recovery may set it aside because in respect of the crown the  estatetail be in be so be the case of Crocker v Kelsea a cro James hut a where  tenant in tail levy a fine and declare the use to himself and his heir it be  resolve that the estatetail be bar as to he who levy the fine and as to his  issue but that in rei in point of fact it be not determine for all stranger  may say that it be in be it be true when tenant in tail suffer a recovery  every one who come in by such recovery come in continuance b Benson v Hodson t  raym Mod lev b of the estatetail and must be liable to all the charge make by  the tenant in tail and the charge of those in remainder be bar but this do not  prove that a estatetail be as large as a estate in fee which be the point now  in question therefore if this lord have gain a new and great estate than he  have before it be plain such estate be void within the intent and word of this  statute the question be not whether a recovery suffer by tenant in tail shall  bar the remainder and contingency expectant upon such estate but whether he  who suffer the recovery shall after the make this statute take any advantage  of it after it be suffer modern report er p as to the case put on the other  side videlicet that where tenant in tail et part of a mother suffer a recovery  and declare no use in such case the use shall be to the heir a part of a  mother this be not law it be true it be so where a man be tenant in feesimple  but not where be be tenant in tail modern report upon the whole matter it be  insist that the Lord Derwentwater be a purchaser within the word and intent of  the statute therefore it be pray that the appeal may be dismiss but the decree  of the commissioner be reverse by the delegate by the opinion of four against  justice fortescue by the court it be plain that a papist under the age of  eighteen year at the time of make this statute may take either by descent or  purchase and that the word purchase in this statute be only a modification of  the estate and shall not be take in the full extent of the word for those  purchase be only intend by the statute by which papist enlarge and extend  their land interest and not where by deed of settlement the ancient  familyestate be new model without make any new acquisition so that even at  this day a purchase by limitation in a settlement or by a devise to a papist  under the age of eighteen year be good so as such papist within six month  after he come to that age conform and take the oath c otherwise be lose the  pernancy of the profit during his life only modern report the twentyeighth OF  october in the court OF chancery sir Simon Harcourt Knt Lord chancellor Thomas  Lord Parker chief justice b r sir Thomas Trevor Knt chief justice c b sir John  Powell Knt justice b r the argument of the then chief justice of b r