case roper against Radcliffe S c ante the first and great question in this  case be whether the interest devise by Mr roper be such a interest or of that  sort as be within the word or intent of the statute will c and herein it will  be proper to consider first the word of the Act second the nature of the  interest first there be two expression or clause in the Act that concern this  point by the first every papist or person profess the popish religion be  disable and make incapable to purchase any manor land tenement rend or  hereditament in his own name or in the name of other to his use or in trust  for he by the second all estate term and any other interest or profit  whatsoever out of land tenement or hereditament make after the ten of April to  or in trust for the benefit of a papist c be make void so that all land  tenement rend and hereditament be within the first and all estate and term  inheritable or not and all other interest or profit whatsoever out of land c  be expressive within the second there be no qualify word to make it material  whether the term or interest be long or short or what other circumstance it be  attend with provide it be out of land c and the word whatsoever seem to be add  on purpose to shut out all pretence of distinction between one estate term  interest or profit out of land and another now to the interest devise to Mr  constable and Mr Radcliffe it be a trust and a interest and as such it be  demand by their bill modern report and of what nature it be will appear by the  deed the will and the codicil whereby it be create and dispose the creation of  it be thus Mr roper by lease and release convey several land and manor in the  county of Cornwall Gloucester and Monmouth particular name and all other his  land tenement and hereditament in those county to William constable Esq r  Hewit and Daniel Hickman and their heir upon trust as soon as convenient may  be to make sale of the premise in parcel or in the whole to the best purchaser  or purchaser and for the best price or prince that can be reasonable have or  get for the same and by and out of the rend and profit arise thereout till  such sale in the first modern report er p place to pay four thousand pound owe  to sir Robert cotton and John Proby secure upon the land in Cornwall with the  interest thereof and then to pay the debt in the schedule be three debt amount  to three hundred and ninety pound and then to pay and dispose the residue to  and for the benefit of such person and person and to and for such end and  purpose and in such manner as the say I roper by any write or write under his  hand and seal testify by three or more credible witness or by his last will  and testament in write so testify shall direct limit and appoint and in  default of such appointment or until such direction limitation or appointment  shall be make to pay and dispose of such residue or overplus to and for the  benefit of the say I roper and his heir and the trustee be declare Chargeable  only for so much as they respective shall actual receive the trust be thus  create I roper make his will and recite the say deed in pursuance of the say  indenture or by any other power vest in he he give devise and bequeathe out of  the surplus of the money arise or to arise by and out of the sale or sale of  those manor land and premise and by and out of the rend and profit of the  premise arise till such sale the several sum follow and so dispose of several  sum in all about sixteen hundred pound and then go on and as to all the rest  and residue of my estate both real and personal of what nature or kind soever  I give devise and bequeathe the same to the say William constable and unto the  honourable modern report t Radcliffe Esq Robert Hewit gentle and the say  Daniel Hickman equal and unto their heir and assign for ever and make they  executor and afterward add a codicil and dispose of one hundred and forty  pound in legacy though out of the land and then go on thus all my remainder  whether in land or in personal estate I leave to my worthy and belove executor  t Radcliffe and William constable the particular time of execute these several  instrument appear not but their date be near together videlicet the lease and  release and January the will march the codicil April so that the trust now  contend for be that trust which Mr roper reserve to himself and his heir in  the surplus of the money to be raise by the sale of his land rend and profit  and till sale after the payment of the several debt and legacy appoint and it  be devise by the will to his four executor and their heir under the title of  the rest and residue of his estate real and personal and by the codicil to two  of those executor under these word all my remainder whether in land or  personal estate and there appear no other estate to answer the word real  estate in the will or other land or personal estate to answer those in the  codicil but this trust the land be not turn into money in his lifetime but  remain yet unsold in the hand of the trustee subject to and charge with this  trust and second the question now be whether this trust this right to the  surplus to be receive out of those unsold land be within this Act of  parliament I e whether it be a hereditament or a estate or any interest or  profit whatsoever out of land for if it be any of these it seem clear within  the Act this may be consider in two different view first as it agree with  those other sum appoint to be raise by this trust in this respect that it be a  right to something to be raise out of land second as it be distinguishable  from those other sum in respect of its be a surplus after the other charge be  pay off modern report first have this not be a surplus but a certain sum  appoint to be pay out of those land it must be admit to have be within the Act  for that say any interest or profit out of land for the benefit of person  profess the popish religion now that it be for the benefit of person profess  the popish religion be agree and that it be a interest in or out of land seem  most clear for first the trustee hold the legal estate in the land not at all  for their own advantage but in the word of the Act and of the trust for the  benefit of other second suppose the executor and legatee and those who be  entitle to the surplus release to the trustee all their right in the land it  will extinguish this right and in such case the trustee who have before only a  nominal estate will then have the beneficial estate too I e the whole fee both  legal and equitable modern report er p three if they grant all their right  title and interest in those land this interest will pass fourthly if they  shall grant the land itself it can be no question but this will pass also we  may consider the nature of this interest further as it be a right to a sum to  be raise out of land first the estate and concern of the trustee therein  videlicet they have a estate in fee in trust to apply the profit or permit  they to be apply for the benefit of the person to who the several sum to be  raise be appoint to be pay first if there be not a express appointment for  they to sell but that the money be to be raise out of the profit they can not  sell without consent of he that have the surplus but must be content to take  the profit as they arise second though there be a express trust and power to  sell yet it only authorize they to sell if and when they can and on the best  prince c and in the mean time all the profit be in their hand by anticipation  and the trust or right be to be manage in the same manner as if to be raise  out of the rend and profit only modern report three consider the interest and  power of the trustee videlicet they among they have the whole trust of the  land which be a power over the estate therein and those who be entitle to have  particular sum raise have particular trust carve out of the inheritance in  nature of chattel interest for he that have five hundred pound appoint to be  raise out of a estate of one hundred pound ayear have a interest in the land  of like nature and much of the same continuance as if he have a trust therein  for five year if the trustee make not the most of the land or suffer not he to  do it they break their trust a trust to sell be as I observe before but in  nature of a power to sell and first till sale his right to the profit be the  same as if no such power second by sale his interest in the land be go and he  now have a trust in the money and be pay so much the soon second this trust  now in question may be consider as it be distinguishable from the particular  sum to be pay out of those profit in respect of its be a right to a surplus  after debt and legacy pay and in that respect I think it yet more clear within  the Act first upon the construction of the deed for thereby it be so vest in I  roper as to be not only a interest and profit out of land but such a one as be  a hereditament and descendible to his heir it be express reserve to I roper  and his heir and it be agree on all hand that Edward roper the heir will be  entitle to it if the will and codicil be out of the way and if it be mere  personal a limitation to he and his heir will vest it whole in he and it will  go to his executor second the constant opinion in chancery all the case there  both for and against heir who have sue for such surplus be authority that the  trust of such a surplus be a real estate and descendible to the heir of he who  create it but before I state the case I will mention that which be the ground  both of these case of trust and also of the case of use execute by the statute  modern report and first of use a use before the statute of use be a mere trust  cognisable only in equity and be since expound in the commonlaw court by the  rule of equity and as to that I will use the word of Lord coke a   light a a  whosoever be seize of land have not only the estate of the land in he but a  right to take the profit which be in nature of a use so that if the land  descend of the part of the mother the use shall go to the heir of the part of  the mother b burst v Winchelsea burr Pearson v shore atk b which can not be if  it be not the old use or estate but only a thing new create and the like law  be of the custom of borough English gavelkind c this be call a result use and  the law be the same if after particular use there be a express limitation to  the feoff and his modern report er p heir c   light b c indeed some book do  mention this last as a new use but it have be diverse time resolve and settle  to be the old use as in the case of Godbolt v freeston d lev d and the case of  abbot v Barton e in the common plea Trinity term Ann salk Mod comy Rep e  second as to trust a man in consideration of equity have a estate in land as a  trust this be as a use in consideration of law and follow the person of  beneficiary and trust be a beneficial interest and profit and so much of the  trust as in a conveyance be undisposed of the executor Q have in he as his  ancient trust this be call a result trust and if the disposition be by will  the like result trust will descend to the heir as part of the ancient trust  not devise from he so a conveyance or devise to trustee to pay debt passes the  whole estate in law and part only of the trust that be trust for the  particular sum in nature of chattel interest after which the residue of the  trust result to he or his heir as undisposed and such residue be the fee of  the ancient trust descendible as in the case of Culpeper v Austin f Michaelmas  term car Chan case S c Eq Abr f and in Trinity term in the thirtyfourth year  of Charles the second it be lie down as a rule that when land be appoint to be  sell or be convey in trust to pay modern report debt the heir be entitle to  have the land after the debt pay by a imply and result trust in Ventris a  easter term car Anonymous vent a it be say if land be devise for the payment  of debt and legacy and the residue of the personal estate be give to the  executor after debt and legacy pay the personal estate shall notwithstanding  so far as it will go be apply to the payment of the debt and legacy and the  land no further charge than be necessary to make up the residue in the case of  collet v collet b Trinity term car vent b if a man make a lease or devise a  estate for year he be seize of a estate of inheritance for payment of debt if  the profit of the land surmount the debt all that remain shall go to the heir  though not so express and albeit it be in the case of au executor also the  case of cook v Gwavas c in the exchequer January in car vern c be thus I cook  Julii after several particular legacy devise all his good and chattel to r  cook Esq Elizabeth Cobb and William Gwavas to their own disposition and make  they executor and by indenture of the same date demise several manor and land  in Norfolk to the say cook and Gwavas for five hundred year upon trust for  himself for life and after his death upon trust out of the rend and profit to  pay his debt legacy and funeral expense and four year after to attend the  inheritance the plaintiff as grandson and heir to I cook exhibit his bill to  have a account of the personal estate and of the rend and profit of the real  estate and that the personal estate must be apply to pay debt and legacy in  ease of the real the defendant the executor insist that they be entitle to the  personal estate as a legacy and the two trustee claim the profit of the land  for four year after the debt and legacy pay as a imply gift the term be  appoint to attend the inheritance after four year but it be decree that the  personal estate be apply in exoneration of the real estate and that the four  year be in trust for the complainant and such other person as shall have the  freehold and inheritance and to attend the say freehold and inheritance in the  case of sir John Packington d Wyche v Packington and his wife in the exchequer  June and may Eq Abr brown p c d sir Herbert Perrot by will date June make his  wife who afterward marry modern report sir Cyrill Wyche executrix charge her  to see his will perform and thereby give her a rentcharge of two hundred and  five pound with this special trust that she may be supply with money for the  payment of all his debt and legacy to which end I do hereby give to my say  executrix a lease for thirteen year to begin within six month after my decease  of all the say rentcharge of two hundred and fifty pound ayear and modern  report er p this be decree to be a trust for the heir after debt and legacy  pay and this decree be affirm in parliament on the fifteen of may a brown p c  a these case be indeed upon term for year but the ground of they be this that  though all the term be part with yet only part of the trust thereof be dispose  and that not only the inheritance but likewise all the trust undisposed I e  the whole trust of the inheritance and the residue of the trust of the term  descend to and be part of the old trust in the heir and the reason be the same  where it be of a inheritance if only part of the trust be dispose of for  payment of debt or legacy c the residue of the trust remain still undisposed  there have be diverse case of that kind videlicet north v Crompton b Chan case  S c Eq Abr b Catherine Crompton seize in fee of the land in question by her  will date the twentyfirst of January devise to h north Esq her executor all  her estate real and personal to dispose of for payment of all her debt and  legacy and in it all give two hundred pound to the defendant her uncle and  heir at law and upon the hear two question be make first whether this be a  devise in fee and second whether Mr north the defendant claim by a imply trust  after debt c pay may not aver against that implication and after long debate  it be decree against the heir at law videlicet first that a fee do pass by the  devise and second that there be not any imply trust of the surplus for the  heir because there be two hundred pound give to he which be to no purpose if  the surplus have be intend he which case plain admit a result trust in the  heir unless the intent of the testatrix appear to dispose it from he and in  this case we may observe that the question be single whether there be any  trust at all create or intend as to the surplus but not the least doubt that  if all have not pass the residue will have go to the heir modern report and  all these case suppose this ground and rule that if any part of the trust be  undisposed it be the old trust descendible to the heir and the labour of all  the contend party be to show that it be or be not all dispose but in the  present case there be no question but that the grantee be bare trustee of the  surplus a trust be here on all hand admit it be indeed express declare and our  question be only concern the nature of it I e whether descendible or not now  all the beforecited case admit it be descendible if there be one for they no  where tell the heir that the trust if there be any be not descendible but the  single answer they rest on be that there be no trust at all the case of coote  v more the twentysecond of January go yet further William earl of meath convey  several manor and land in Staffordshire to the countess of Drogheda and  burgundies to the use of himself for life with power to sell and pay debt in a  schedule and what other debt he shall owe at his death and to pay the surplus  to his daughter who be his heir and afterward devise his personal estate to  his wife he sell part of the estate himself and contract for sale of other  part thereof and die and on the seventeenth of July upon a bill of the  purchaser to have their purchase perfect it be declare that the personal  estate ought to be apply in aid of the real estate for the benefit of the heir  and afterward on a bill by sir p coote who marry the lady Elizabeth one of the  daughter and the say lady his wife and by the lady Catharine brabazon the  other daughter on the twentyseventh of January it be decree that the  particular estate shall be apply to exonerate the real estate in favour of the  heir at law and yet there be no real estate but this surplus which be look  upon to be a real estate and this decree be affirm in the house of peer in  note the division of the house be equal and I observe from the print case  which I have see that that which the appellant rely upon be first the constant  intention of the earl that the countess shall have the personal estate second  that the trust estate be express charge with debt but nothing be urge that it  be not a inheritance modern report er p modern report and I take it to be the  constant receive opinion in this court that this sort of trust be inheritable  first now suppose the trust have be to raise the several sum out of the profit  and to pay the residue of the profit to he and his heir no doubt but this have  be part of the ancient trust and inheritable and will descend to his heir and  the trust to sell as I before observe be but a power till execute and the  trust differ nothing from that in the mean time second suppose a man seize in  fee give power to his executor to sell his land c and to pay the money or  surplus to his heir be there have power over the legal estate as here he have  over the trust but till that power be execute the old fee descend to the heir  and when it be execute then arise a trust in the money in lieu of that in the  land which be now sell and turn into money as in the case of abbot v Burton in  the common plea before mention a convey her land to several particular use and  after the particular estate end to the use of her and her heir with power to  appoint the same to such person and for such estate as she shall think fit  till such appointment make here the use to her and her heir be no doubt the  old use and if not direct by a appointment shall descend to her heir and if  the land come from the part of the mother shall descend to the heir of the  part of the mother three I observe some part of the land in the deed belong  former to dame Dorothy Drummond who be I roper mother mother and then if they  descend to he from her and he have make do will or codicil but the trust  accord to the limitation in the deed have be to the heir I will be glad to  know what heir will have have it will it not have be the same heir who will  have take the land if they have not be charge No doubt such a result use a use  limit by he to he and his heir will have go to the heir on the part of the  mother and sure the trust of the same land be so much of the same trust  undisposed must have go the same way fourthly I take it that the trust if not  devise away will have be asset by descent in the hand of the heir upon the  statute of fraud and perjury five that when it be so devise the heir be so far  disinherit and the devisee put in his place six that a devise of all his  personal estate will not pass it c modern report this be the nature of it as  it stand in I roper himself and I take it that upon the devise here it be no  way alter here be no alteration appoint I think it will have make no  difference if he have give it by way of appointment but here it be give as  part of I roper estate and consequent not be any part of his personal estate  it must be real by the will it be give by the name of the residue of his real  estate and in the codicil it be call his remainder in the land so that the  devisees if the devise be good have the trust in the land first as it be in I  roper and second as it will have be in his heir and therefore first a  hereditament second a descendible trust in the land I shall now in the next  place consider the consequence if this case shall be construe to be out of the  Act of parliament I think it have be right observe by the counsel for the  plaintiff at the bar and by all who have speak to it on the bench that the  design of the maker of this law be first to get the land of this kingdom out  of the hand of papist and therefore it lie difficulty upon they in keep of  their land in order to induce they to sell they and second to prevent they  from make any new acquisition I agree likewise that the reason of the  parliament in form this design probable be that they look upon the land  interest to be the strength of England for that such interest and estate in  land give great authority and influence over their particular tenant and other  dependent that it may influence election to parliament if papist c have power  to make their tenant freeholder or to accommodate with their land such as have  no freehold of their own by some other title modern report er p and I observe  that in many of the western manor some of these perhaps be of that sort the  tenant be frequent freeholder or have other right of vote in corporation c in  short therefore the lawmaker seem to have esteem estate and interest in land  to be weapon which modern report papist when they have they in their hand make  use of against the public and the government I observe likewise that they have  express and particular provide against term make to papist so that by the  express word of the Act a term for two year nay for aught I can see a term for  one year or for any certain time be prevent from be make to papist it seem  they think a interest of so short a continuance though not of so great  mischief or danger as a inheritance be yet of some mischief and so much as to  deserve a remedy and I observe that the trust of a term be as much within the  Act as a legal interest in the term and that the estate in the hand of the  trustee of a papist be of the same consideration as while it be in his own  hand let we now consider a trust of this sort as be here devise and see what  difference there will be between this and the most direct trust in land or any  the most open and notorious term or estate in land and to I it seem plain that  there will be the same influence over tenant and other as in the case of a  direct ownership we be now upon the nature of a trust in general and not upon  the particular circumstance of this case so that a great or lesser estate a  great or lesser charge a great or lesser surplus will make no difference in  this point whether within the Act or not suppose a estate of one thousand  pound ayear be convey to trustee on trust to sell and pay off three thousand  pound and a papist have a right to the surplus the management of such sale  fall natural into the hand of himself and the insolvency of tenant or  smallness of the rend be only his loss and the sink of the debt and increase  the surplus be to his only benefit therefore the put in or out of tenant agree  upon the term and rend and forbear arrest or distrain the tenant c will of  course be accord to his pleasure also the trustee be his friend and therefore  name trustee for he and they Willing and most safe leave it to his management  nor can they safe interpose or act otherwise than he desire without hazard and  trouble but suppose the management be in the trustee yet they be the trustee  of a papist and for his benefit which be equal within the Act modern report  first well but say they the sale will put a end to this so that it can be of  no long continuance answer any term as I have say be within the Act as for a  single year perhaps for halfayear certain for two year and this in the nature  of it must exceed that time for it must wait some time either to meet with the  best chapman or to get the best price and this be to be for every parcel or  part so that here be no certainty nor even probability of the end of this  trust in many year second it be say he be only a tenant at will to the trustee  and they may sell without he answer he be indeed but tenant at will to they  but they have no will but his which way then can a sale be expect without his  consent for first the trustee be his friend and they or be may either  disparage the title or object to the price or pretend better bidder or may say  it be unreasonable or that they will have a better price c second as to the  executor and legatee if they press the sale it be but give they ample security  they may be make easy with interest c and if there be no other way it be but  to get a friend to advance the money and all will be easy three but you will  say the chancery will set all right I e order a sale of the land and turn it  into money but how shall it come there when all the party be make easy  videlicet the executor and legatee be secure or satisfy and the heir of modern  report er p he that make the conveyance will declare first that he have no  interest second that the conveyance in trust be good and three that the trust  be not within the Act and in the end must only pay cost if decree against he  and fourthly as to the next protestant of kin c shall he come to pray a sale  of part and to have the profit of the residue c in that case no court may  decree the whole to be sell so he will fare no better first but we will  suppose it depend in chancery which may be a long time first and long before  it come before a master and long still before a decree yet fair bidder may be  weary c by bidder of their own and if these will be sturdy outbid at last and  where nobody interest be to modern report follow it easy fly off or if they do  not yet the papist pay their own money receive it again themselves and take a  conveyance in the name of their own trustee and if this be undiscovered all be  well or if it be discover the conveyance it be true be void by the Act but  then it revests again in the first owner or trustee and the consequence be  that they be to begin the same round again nor can I see any end this way  where it be nobody business interest or inclination to sue so that the  management of the cause may continue for age to which no end be likely to be  put second but suppose the three thousand pound debt and legacy pay by  perception of the profit before there can be a sale or suppose he that have  the surplus buy they off as he may well do if they be not within the Act and  if by either of the say way he become the single owner of the say trust what  be the nature of his interest now he have now the entire trust of the land the  rend be mere his c have be yet no interest or profit out of the land who shall  have the management or power over the tenant if not himself and the estate of  the trustee be now not in the least for their own advantage but for the  benefit of papist three this will open a way not only for a papist to take by  devise but to buy or purchase this sort of ownership of other for what be not  within the Act may as well be buy as give which sort of exposition will I  apprehend overturn the Act and will have no other effect but that some very  learned and ingenious gentleman who attend here upon this occasion must or  will for the future dress up their trust in a new form I own with I it be a  difficulty to say that such a trust as this be neither tenement hereditament  estate term nor any other interest or profit whatsoever out of land and I know  not whether to shut this out of the Act I must not go far and say that this  estate in fee in the trustee be not any land tenement hereditament or any  interest or profit whatsoever for if it be any of these it be plain in trust  for the benefit of person profess the popish religion and therefore within the  clause and provision of this Act to prove this not to be within the Act great  variety of argument have be use and they say that the argument modern report  on the other side prove too much and tend to great hardship videlicet first  that this will disable a papist to make provision for his young child if such  a trust to make or raise their portion be void second that it will avoid a  provision for popish executor c and they will therefore distinguish upon the  Act and say three that the Act only intend the continue of estate in papist  and that here all be to be sell and by consequence there be no continue  interest in the land fourthly that the Act only intend real estate but that  this be money and mere personal and as a instance say a mortgage in fee till  foreclose the money be in equity personal estate and shall go to the executor  five that estate term interest and profit out of land mean only perception of  profit and not money to be raise by sale of the land and they argue further  and say six that a man may sell his land and give the money to a papist and  therefore he may appoint another to sell it and to give the money c who  compose per other compose per see seven that this answer the intent of the Act  to turn popish land into money modern report er p before I answer these  particular I will observe in general first that the argument use of the  hardship to papist be of little force against a Act of parliament which be  profess intend to bring hardship upon they second that the distinction which  have be offer do not arise from any word in the Act but from some guess at  what may be think too hard or unfit which I think can control the express word  for that will indeed be repeal the Act instead of construe it three that the  word in this Act be contrive on purpose to exclude all distinction and seem  very strong for that purpose videlicet all estate term or any other interest  or profit whatsoever out of land so that let it be long or short permanent or  transitory descendible or testamentary of what nature or kind soever or  whatever interest or profit it be if it come out of land it seem comprise  within the express word of this Act fourthly that if this be a descendible  interest as I have endeavour to show all those argument fall though I shall  endeavour modern report to show they insufficient be it no descendible  interest five that in no case be any distinction to be admit in expound a Act  of parliament which open a way to destroy the Act as I think this will so that  shall I not satisfactory remove all the difficulty object yet they will not be  of weight to alter the word and natural construction of the Act but to the  forgo objection I give these particular answer videlicet first the Act do not  disable a papist from make any provision for his young child which they be  enable to take but those which they can take he can make for they as a  rentcharge or a lease of land and as I conceive a trust of land but what be  the consequence of this that they must not be provide for No but must be  provide for in a proper method I e let he give they money if he have it not  why do he pretend to keep his land when he want money for the occasion of his  family this be a proper method to attain one end of the Act I e to work papist  out of their land and put a necessity upon they to sell be agreeable to the  end and design of the Act if he sell the land or interest therein himself it  be certain do but if he raise a trust it will perhaps never be do or pay off  by the popish heir c so that this be so far from be a objection that it be a  argument that the Act shall extend to it second as to popish executor c answer  first they can take lease or grant and consequent not mortgage this be within  the express word of the Act for it be a interest in land and on nonpayment the  estate be absolute in law and his interest be good in equity to entitle he to  receive and enjoy the profit till redemption or satisfaction and on a  foreclosure he have the absolute estate both in law and equity second that the  hardship be to person the law intend a hardship to three that it be not so  hard as to avoid any purchase for it be what be not contract for or rely upon  modern report three it be say the Act only extend to continue estate c answer  first no such distinction be in the Act which say all estate and interest  whatsoever second this may necessitate sale to provide for child c three it be  a continue interest it be true the sale when it happen may determine it but  that alter not the nature of it in the mean time and how long ere that may be  God know it may continue unsold for ever and perhaps so intend fourthly it be  object that the Act only intend real estate and that this be personal c answer  first no such distinction in the Act nor any word that countenance it but  contra all term be express within it which be personal and go to executor  second in a mortgage in fee descend to the heir and unforeclosed the heir be a  trustee for two person videlicet first for the executor as to the money which  be a particular trust carve out of the whole trust of the fee like a term for  year out of a inheritance and second for the mortgagor as to the rest of the  trust who modern report er p therefore have the inheritance of the trust but  though in that case the trust for the executor be not a inheritable trust yet  it be real a continue trust in that land for the mortgagor though of another  nature as he that have a term for year have as real a interest in the land as  he that have the reversion though of another kind and though the one be  descendible and the other testamentary it amount but to this it will be money  after the sale and what now affect the land will by the sale affect the money  so if a man by will give power to his executor to sell land and pay the money  to his heir till the sale the heir have a fee therein though when the executor  have execute their power it will be turn into money so in abbot and Barton  case before cite there be a power to appoint any estate even the fee to other  person but yet till that be do and the use limit to the party and her heir it  be the old use descendible to the heir on the part of the mother but second  all rend and profit of land when receive will be money or good and yet the  right to they beforehand be within the Act and be a interest in the land the  five objection that the word estate term interest c mean only perception of  the profit c answer first here be a right to have a account and benefit of  rend and profit till sale and the sale only go in defeasance modern report of  that right now how far off this sale may be I know not and here be a direct  power over the tenant in the mean time second what essential difference be  there between rend and money on sale as to the present point a rend be the  price for which the profit of the land be sell for one year and a forehand  rend be proper a take tip the profit of land by anticipation and on a sale all  the profit of all future year be sell and the party receive the price which be  receive the profit by anticipation and no distinction be between forehandrent  and afterrent they be both the profit of the land profit take yearly come in  all in a lump on a sale and the right to the one or the other be a right to  the profit out of the land and therefore where a trust have be to raise money  out of the rend and profit of land and the rend be so small that to raise it  by perception of they will not answer the purpose of the trust the court of  equity have with great justice decree a sale because that be still a raise out  of the profit though take soon by anticipation the six objection that what a  man may do himself he may do by another c answer this rule be right provide no  law hinder but here the Act of parliament hinder he may receive the rend of  his estate twenty year together and pay they over to a papist but can he  therefore make a lease to another for twenty year on trust to receive the rend  and pay they over to a papist the difference be plain in the one case he  create a trust for a papist and give he a right to demand the profit of the  land in the other case the papist receive only the money from he but never  have any demand out of the land the seven objection that this will answer the  end of the Act I e turn papist estate into money answer No first this will  defer and prevent do it it will deliver he from the necessity of do it  otherwise he must have do it himself and then it have be over but by this way  the do it be delay and perhaps it will never be do second this bring the  interest of unsold land to the papist and create in he a new interest to the  land and a power over the now tenant three this go to sell they not while they  be in popish hand but when they be descend to a protestant heir modern report  it be in effect a disinherit a protestant heir that a papist may have the  benefit which sure be never the intent of the Act fourthly this will be the  same as if the trust have be create by a protestant for if this be not a  interest within the Act a papist may purchase it from a protestant as well as  have it give he by a papist nor will it be material from who the estate come  modern report er p the eight objection but it may be further say that all my  objection arise from the nonperformance of the trust which be not to be  suppose and that a court of equity ought rather to judge of it as if it be  perform answer my objection arise first from the express word of the Act and  second from the manifest inconvenience if they be depart from and as to the  suppose a performance observe first there must necessary be suppose a time  when it be unperformed or there be no room for a performance and at that time  a papist have a demand out of and interest in the land second I can suppose a  trust to be perform which nobody have any necessity interest or inclination to  perform three the trust be to pay out of the profit pay out of the yearly rend  be no performance in effect and a sale be the only way to perform it but that  be not do the nine objection well but a cure may perhaps be propose for the  inconvenience I have object as that if there appear any fraud a court of  equity will set that right or they may give another construction in such case  answer we be not here upon a law make to prevent any Act in itself fraudulent  or injurious and if so yet the evade of this will but occasion the commit of  the same fraud another way and therefore to be meet with in the first instance  nor be we upon a law which prohibit something under the penalty of a  forfeiture to a three person though in that case perhaps a fraud to deprive  such person of a title give he by such a Act will be meet with but this Act be  a bare disability and if a man be disable to purchase one sort of estate or  interest it be no fraud to purchase another sort of interest which he be not  disable to purchase nor to take care before be pay his money modern report  that the seller have a interest of such a nature as he can purchase beside  here he have no stranger to deal with but simple the person he buy from who be  a party to all that be do and not surprise or draw in but honest and full pay  can never complain of fraud nor do I apprehend that the great or lesser  proportion of the surplus can be material if the Act extend not to a interest  of that kind nor can the management of the estate afterward weigh anything for  this Act create only a disability but make no forfeiture it prevent a vest but  divest nothing vest and if the trust be admit to be they it be too late to  dispute with they about the management of what be their own second argument I  be it seem in this case so unfortunate as to differ from some of my brother  they hold first that this case be on a will be not with the Act and second  that if it be yet this method will not determine it this only open a way to a  further labour to consider whether a gift by will be within the Act or not now  consider first by the first expression in this clause every person be a papist  or profess the popish religion be disable to purchase and second by the second  all estate make to any such person be declare void and here be in neither  expression any reference to any one manner of conveyance there seem no room  for a distinction whether it be by fine or by deed or by will c but here be a  general incapacity of all manner of conveyance and all estate howsoever or by  whosoever make be declare void if make to such person after such a time this  seem to I to be the clear sense of the word but the objection consist of two  part if either of which fail it fall to the ground first it be say that the  first expression do not import any disability to purchase in a proper or legal  sense but only a disability modern report to purchase for a valuable  consideration which be say to be the vulgar and common sense of the word  second that those word which make estate void if make to such person modern  report er p mean not such person as profess the popish religion general but  only such purchase papist and consequent that the plaintiff not have pay any  valuable consideration but this trust be give to they free by a will this case  be not within the Act of parliament I hold both these proposition to be wrong  though if either be so the conclusion will fall first a purchaser be a law  term and import any estate which be not cast upon a man by act of law as  descent or escheat but which he take or accept by conveyance for money or  other consideration well alian quavis chance say sir h Spelman or free of gift  say my Lord coke express Litt fol Inst a b and thus it have be constant use by  all lawyer for some hundred of year without interruption not to multiply  particular let I instance in the manner of expression of that know rule which  be in every lawyer mouth as mention by that very accurate judge Lord Hobart in  Counden and clark case hob this be a positive rule that a man can raise a  feesimple to his own right heir as a purchaser neither by conveyance of land  nor by use nor by devise Mr attorney will seem to imagine a difference between  the word to purchase and to take by purchase but it be clear they be all one  and the verb to purchase be constant use in the same sense as to take by  purchase and in Inst a b it be use so near a dozen time and the general  licence to abbey after the statute of Merton be general only leave to purchase  so be charter to corporation but no one ever doubt but that thereby they may  take what be give they as well as what they shall buy and pay for and here all  the conjugates be use in the same sense as the word purchaser which be nomen  verbale and be form from that verb to purchase it be natural and proper to be  use in that sense I will mention but one instance where that word be use in a  statute in the same sense though in another form of expression on the rule  before cite out of Hobart it be in Pybus and Mitfords case vent where wile  justice say modern report I agree a man can either by conveyance at commonlaw  limitation of use or by devise make his right heir a purchaser sure law be to  be understand accord to the language of the law and a law term in a Act of  parliament be to be take in its legal sense the statute Richard c take notice  that mayor and commonalty of city and borough and other town which have a  perpetual commonalty be as perpetual as people of religion and therefore first  express extend the statute de religious devotee to they in these term from  henceforth they shall not purchase to they and their come upon pain contain in  the say statute de religious devotee and it be never doubt but that it will  extend to what shall be give to they as well as to what they shall buy I agree  that purchaser for valuable consideration have be distinguish from other in  several act of parliament by provision make particular for they that they  shall not lose their money or by exception to prevent their be involve in  general provision against fraud but be never distinguish to their loss or  prejudice nor ever single out to lose their estate because they have pay for  they nor do those act of parliament which be in their favour speak of they as  of purchaser general but only as of one species of purchaser I e purchaser for  valuable consideration in express term as the statute Elizabeth c against  fraudulent and covinous conveyance sect recite the loss the subject may have  after purchase make c of land c for money and other good consideration sect  make fraudulent conveyance void against person who shall purchase for valuable  consideration sect make statute not enter in due time void against person who  shall purchase for money or good consideration the statute James c of bankrupt  sect provide that no purchaser for good and valuable consideration shall be  impeach by that Act unless the commission be sue out within five year and the  statute of fraud and perjury modern report er p sect be that judgement as  against purchaser good fide for valuable consideration of land to be charge  thereby shall in judgement of law be judgement only from the sign and sect no  recognizance modern report shall bind any land c in behalf of any purchaser  good fide and for valuable consideration but from the time of the enrolment I  agree if a gentleman at the bar be argue on the statute Elizabeth against a  fraudulent conveyance and shall say that his client be a purchaser I shall  understand he to mean a purchaser for a valuable consideration not because the  word ex way termini import it but because the occasion of his use it show that  to be his meaning or he talk nothing to the purpose but the case be different  when we have under consideration the proper sense of the word of a Act of  parliament where no declare meaning in any other part of the Act determine the  intent but we be to judge upon the enact part what they have do and only  thence be to learn their intent and what they design to do for there of  necessity the Act must be understand always to speak proper and in the  language of the law but shall I admit that a Act of parliament provide against  fraud and artifice to defraud purchaser be to be confine only to purchaser  upon valuable consideration though not so express for that purchaser by free  gift can hardly be say to be defraud in the language of the law for if the  gift be defeat they be but where they be and so the subjectmatter may supply  the distinction omit in the word yet here be no ground or reason for the  distinction it be all one as to the end and intent of this Act whether the  land be pay for or not if the lawmaker look upon land in papist hand as the  support of popery and to stop the growth thereof and the mischief the owner  may do the public think it reasonable to make provision against their further  acquisition be it at all material whether those acquisition be pay for or not  one hundred pound per annum acquire by a papist by a voluntary gift or will  will be as prejudicial to the public and as much against this Act as where he  have pay two thousand pound for it nay I take it it will be more so for then  he have the land and keep his money too size and if he have get a new sword c  it will do as much execution when give he as if he pay for it modern report  the mischief intend to be remedy be the rule whereby act of parliament be to  be expound and the word be stretch if there be occasion to reach they all but  it be very hard to reject the proper natural and legal sense of the word in  any case much more when it will so plain let in a equal mischief the first  statute of mortmain speak only of religious person now among all the reason or  exposition of those law it be never pretend that pay no consideration excuse  they the statute Richard above speak of lie community forbid only purchaser  general and yet it be plain the lawmaker look on they as equivalent the  conveyance in mortmain be the thing in view whether a price be pay or not and  what be the motive be not material to give a much strong instance the statute  of great Charta c nullus libre a human being debet de ctero greater number c  express both give and sell but not express prevent the mischief to the lord it  be extend by construction also the statute Edward because buyer enact that  from thenceforth it shall be lawful for every freeman to sell c now here be  fair room for a distinction that this statute set the freeholder free from  great Charta where they sell but not where they give because the statute only  give liberty to sell and great Charta express forbid give as well as sell but  the Act be a provision for the lord and the price be between the party only  and the mischief of give be the same as to he it have be extend thereto and  Litt sect speak of this Act say that it be thereby ordain that no man shall  alien or give grant land or tenement in feesimple to hold of himself and that  the word sale extend to gift Q so here the care be for the public and to  prevent papist from get new acquisition what be pay be only between the  grantor and grantee but do not concern the public at all and therefore c no  reason to form a distinction here modern report er p but we be not contend to  enlarge the sense of the word purchase but only to understand it in its true  genuine proper and legal sense and modern report three there be still less  room for this distinction because the subjectmatter of this clause be proper a  incapacity or disability act of parliament be always expound accord to the  rule and reason of the commonlaw and when a provision be make by Act of  parliament the law endeavour to range it with some provision of its own of  like nature the statute de gift enact that tenant in tail non to have to be  able to make strange earth act of giving so as to prevent its come to his  issue and that a fine thereof sit in Self jure nullus now the end and effect  of this statute be a disability to alien to the prejudice of other and  therefore the law now rank he with bishop and other ecclesiastical person and  with husband who by the commonlaw be disable to alien to the prejudice of  their successor and wife and therefore though the Act be that tenant in tail  shall not have power to alien and that his fine shall be void yet it be  construe that his fine be not void but make a discontinuance and put the issue  to his formedon and that his other alienation either put the issue to his  action or allow his entry just as the law stand before in relation to bishop  now here by this clause a incapacity or disability be bring upon a papist then  inquire have the law any species of incapacity with which to rank this yes for  capacity and incapacity to purchase be a settle notion therein and therefore  papist be to be construe to be in the same condition with those who be under a  incapacity to purchase at commonlaw and whatever distinction may be between  one purchaser and another in respect of the consideration and other  circumstance there never yet be any between one incapacity to purchase and  another and a man under such incapacity be no more capable of land give he  than of land buy and if this Act be construe accord to the reason of the  commonlaw a papist be in the same case and upon the whole I think that the  word purchase here do by no mean make a valuable consideration necessary but  if there can any doubt remain yet second the late word leave no room for any  distinction upon the point of the consideration they be plain modern report  more general and I apprehend more extensive than the former and therefore if  there be any doubt upon the word purchase I e whether the large or narrow  sense of the word shall be take it must now be in the large sense because the  sense of those late word in the Act be at least as large as the large sense of  the word purchase and there can be do other use of they but to supply the  defect or narrowness of the former word therefore I shall not contend that it  be a independent clause I content myself to have it admit to be a explanatory  or supplemental clause as the word therein such person or person must be  explain to be person or person profess the popish religion I e such person or  person as be speak of before this be the natural sense but to construe such  person or person to be such purchase papist be harsh and I think not to be  suppose either from the grammar or the context for the word such refer to a  precedent description and consequent to the circumstance be be before describe  by and not to make word mention in his punishment to be a necessary part of  his description suppose the first disability have be a disability to sue or  bring a action and the clause have run thus that all and every papist or  person profess the popish religion shall be disable and make incapable to sue  or bring a action and that estate make to such person or person shall be void  will these last word be expound only of such person as shall sue or bring  action No sure the different punishment inflict can make no difference in the  description of the person I can better illustrate this than by the common  method use in pass bill S in parliament I e to bring they in with blank for  time and penalty and so this clause in the bill will run when first bring in  thus and that from and after every papist or person profess the popish  religion shall be disable and be hereby make incapable c and that all estate  term interest or profit whatsoever out of land from and after to be modern  report er p make suffer or do to or for the use c of any such person or person  or upon any trust or confidence to or for the benefit or behalf of any such  person or person shall c as it stand here the word such person or person be  plain such as be describe in the beginning of the clause and be use to save  the repetition of that which be in the forgo modern report description be it  possible now to think that the fill up of the blank can alter the description  of the person and that one sort of person will be mean if one punishment be  insert and another sort if another or that if the first blank be fill up with  a disability to sue that the last clause only affect estate grant to plaintiff  or if with a disability to bear a office only estate grant to officer or if  with a disability to be a executor only estate grant to executor No the  description be full and complete at the first the same person be the subject  of both part of the clause and whether the blank be fill up with one sort of  punishment and the second with another or whether the second be only a  enforcement of the first it will be all one beside if you will refer it to  punishment it shall be such papist as it be disable to purchase and not such  papist purchase for there be no purchase papist speak of but the former  exposition operate not only upon purchase papist but upon all all be immediate  Self facto disable and the Act have its effect upon those who be thereby deter  and restrain from purchase as full and as proper as upon those who shall  attempt to purchase and lose and more agreeable to the intent of the Act which  seem to aim at prevention rather than forfeiture it seem then very strange  that the late word shall not extend to all papist too in the sense wherein I  take they the late word be very useful and proper they enlarge the former word  if they be too short or by use word not so capable of distinction remove the  ambiguity and the present question show it be very fit to put they in for that  purpose but in any other sense they be vain and increase the doubt instead of  remove it and to look more narrow the word relief in the late expression seem  calculate for a gift as a estate give or provide for child relation or any in  want be proper say to be for their relief but a estate in land which a man buy  can never be say to be for his relief he have only alter the nature of his  estate and be not a jot the rich Q modern report objection that devise be not  within this clause for that first they be mention in the former clause and  drop in this and second if they be this clause clash with the former and make  a absolute disability in the same case where that make only a qualify one  answer devise be not drop in this second clause it be true they be not name  therein nor indeed can they be as that clause be pen but it be plain they be  mean and imply in it have the second clause make all fine feoff grant release  c to papist void and have omit devise it may have be just say that devise be  drop or exclude in it but here the general word of this second clause be  relative to the former it be plain devise be include in those relative word  devise be express mention in the antecedent clause to which this subsequent do  relate modern report er p case in the court OF chancery from michaelmas term  in the ten year OF george the second TO michaelmas term in the twenty year OF  george the second lord Hardwicke chancellor