brown case mary preston and other appellant lord Ferrard respondent d may Mews  dig twelve see now the guardianship of infant Act and Vict c and custody of  child Act and Vict c also in re Byrnes W r by a act of parliament make in  Ireland Ann to prevent the further growth of popery no person profess that  religion can be the guardian of a infant but such guardianship where the  person entitle to it be a papist shall be dispose of by the court of chancery  in that kingdom to some near relation of the infant be a protestant and one to  who the infant estate can descend but if there shall be no such protestant  relation then to some other proper person who will use his utmost care to  educate the infant in the protestant religion until the age of order of the  Lord chancellor of Ireland affirm this case be not report in any other book as  the stat Geo c have put a end to appeal from Ireland to the house of lord here  it do not seem necessary in this place to enter into the present state of the  law in that kingdom relative to papist but see this work under that title that  care may be take for the education of child in the communion of the church of  Ireland as by law establish a act of parliament be pass in that kingdom Ann  entitle a act to prevent the further growth of popery whereby it be enact that  no person of the popish religion shall or may be guardian unto or have the  tuition or custody of any orphan child or child under the age of year but that  the same where the person have or entitle to the guardianship of such orphan  child or child be or shall be a papist shall be dispose of by the high court  of chancery to some near relation of such orphan child or child be a  protestant and conform himself to the church of Ireland as by law establish to  who the estate can descend in case there shall be any such protestant relation  fit to have the education of such child otherwise to some other protestant  conform himself as aforesaid who be thereby require to use his utmost care to  educate and bring up such child or minor in the protestant religion until the  age of year Anthony Preston Esq common call Lord Gormanstown die a papist in  September leave the appellant mary Preston common call lady Gormanstown his  widow and relict and the appellant Jenico Preston common call Lord Gormanstown  a infant of the age of nine year his son and heir together with several  daughter and die possess of a considerable real estate subject to a jointure  of pound per and Payable to the appellant mary and some other demand and the  say appellant mary profess likewise the popish religion Nicholas Barnwell Esq  who brown be the next protestant relation of the infant brown er p in the  month of February follow prefer his petition to the Lord chancellor of Ireland  state the above fact and that the appellant mary and one Nicholas Preston who  be also of the popish religion have possess themselves of the mansion house of  Gormanstown and other the estate of the say Anthony Preston decease and also  of the person of the say Jenico Preston and either conceal he or have convey  he away with intent to educate he in the popish religion and therefore pray  that his lordship will appoint the respondent Henry Lord Ferrard guardian to  the say Jenico Preston and that the appellant mary and the say Nicholas  Preston may deliver up the say minor by a short day whereupon and on produce a  affidavit of the truth of these fact the Lord chancellor on the that of  February order that the appellant mary and the say Nicholas Preston shall  produce the say minor Jenico Preston to the court in six day after service of  the say order or in default thereof show cause in that time why they will not  produce he on the that of the same month Nicholas Preston be personal serve  with a writ of execution of this order at the house of Gormanstown where he  and the appellant mary usual reside and it then appear that she have quit the  house and be withdraw into England and have take the minor with her so that  she can not be personal serve with the order and therefore upon the petition  of Mr Barnwell the Lord chancellor on the that of February order that the  respondent shall be assign guardian to the say Jenico Preston he enter into a  recognizance of such penalty as shall be approve by a master to be Accountable  for the profit of the say minor estate and fortune yearly and accord the  respondent do the next day enter into a recognizance for that purpose and upon  motion of the say Nicholas barnwell counsel the Lord chancellor do on the say  that of February order that service of the say other order at the appellant  mary dwellinghouse and on Mr jeer one of the six clerk and who have enter a  caveat on her behalf against any order pass for the guardianship without  notice to he shall be deem good service on the say appellant mary and that the  say Jenico Preston shall be deliver to Lord Ferrard in a week after the  service of this order the say Mr jeer and likewise one of the appellant  daughter at the say dwellinghouse be duly serve with both the say order and  the appellant not produce or deliver up the say Jenico Preston nor show any  cause pursuant to the say first order the respondent petition the Lord  chancellor for leave to issue process to a sequestration against the appellant  mary in order to enforce the perform of the say order and thereupon his  lordship on the that of April order that process shall issue unless peremptory  on the first seal day before the then next easter term on service of that  order at the brown appellant mary house and on the say Mr jeer good cause  shall be show to the contrary this last order be duly serve and no cause show  nor any regard pay to it by the appellant mary process of contempt do accord  issue against the say appellant and on the d of July the Lord chancellor order  that a sergeant at arm shall be award against her but on the that of September  follow a petition be prefer to the Lord chancellor in the name of the earl of  Barrymore pray that the say order appoint the respondent guardian to the say  Jenico Preston may be set aside and that he the say earl may be appoint  guardian the matter of which petition be on the that of September debate by  counsel on both side his lordship upon due consideration thereof and of  several affidavit then produce on the behalf of the say earl of Barrymore  order that the say order whereby the respondent be appoint guardian to the say  minor shall be affirm the appellant mary Preston on the that of November move  the court on several affidavit to set aside the process issue against her and  upon debate of the matter by counsel on both side the Lord chancellor declare  that he see no reason to set aside the say process but in regard Mr Powell the  appellant then clerk in court pray a month time to produce the minor his  lordship order that the say appellant shall have a month further time to  produce the say brown er p minor and that the respondent shall stop issue  further process in the mean time on the that of December follow the respondent  counsel inform the court that the time give the appellant mary to produce the  minor expire in vacation and in case she shall not do it then the respondent  clerk can not issue a sequestration and therefore pray that the say order may  in that respect be amend and the Lord chancellor then declare that it be his  intention at the time of make the say order that in case the appellant mary  shall not deliver up the minor at the expiration of the say month the  respondent may sue out a sequestration do order that in case the appellant  mary do not deliver up the say minor by the time limit in the say order a  sequestration shall be award against her the appellant colclough likewise  petition to be admit guardian to the minor but no sufficient reason appear to  induce the Lord chancellor to grant the same his lordship do not appoint he  guardian from all these order the appellant appeal insist p York c Talbot that  by the express direction of the say act of parliament the tuition and custody  of the infant person and estate ought to have be dispose of to some near  protestant relation and not to have be grant to the respondent who be a  stranger in blood and no way relate to the infant that the appellant colclough  be a brown protestant conform himself to the church of Ireland as by law  establish near relate in blood to the infant and one to who his estate can not  descend and therefore ought to have be appoint his guardian be in every  respect qualify for such a trust that as none of the say order be duly serve  on the appellant mary there be no just ground to issue any process of contempt  or to award a sequestration against her and therefore as the say several order  be erroneous it be hope they will be reverse and that the process of contempt  ground thereon will be discharge on the other side it be argue t Lutwyche S  mead to be the intent of the legislature by the say act of parliament to give  the Lord chancellor of Ireland a discretionary power either to appoint a  relation or other person guardian as he may judge will best execute the office  and be the most likely person to educate the infant in the protestant religion  for otherwise the true intent of the act will easy be evade that the  respondent be appoint guardian at the request of Mr Barnwell who appear to be  the near protestant relation to the infant and before any other relation have  apply to be appoint guardian that he have give security to the court to be  answerable for the infant estate and be a know protestant well affect to the  present happy constitution and have a good real estate and therefore it be  hope the appeal will be dismiss with cost accord after hear counsel on this  appeal it be order and adjudge that the same shall be dismiss and the several  order therein complain of affirm and it be further order that the appellant  mary Preston shall pay the respondent pound for his cost in respect of the say  appeal jour vol p