brown case Francis woodley appellant John cue and other respondent that  February where a papist to avoid a discovery under the popery act surrender a  former lease grant to himself and obtain a new lease in the name of a  protestant in trust for he the new lease shall be equal subject to discovery  by a protestant and he shall be entitle to the benefit of it decree of the  Irish exchequer reverse from this and many other case it appear that previous  to the statute for relief of the papist they be not less fertile in device to  elude the force of the law against they than the churchman of old be with  respect to the statute of mortmain it be well when contest of this nature be  put a end to by a liberality equal honourable to both party vide ante can  before pronounce the decree which be the subject of the appeal in the precede  case between some of the present party the respondent cue as a protestant  discoverer in easter term exhibit his bill in the court of exchequer in  Ireland against the appellant and Elizabeth Woodley his sister Laurence Mac  Carthy John brown er p Dixon and Roger Bernard and other set forth a lease of  the that of October grant by Arthur Bernard to Francis Woodley decease the  appellant father in trust for a papist and insist that the same be a subsist  lease and ought to take place of the subsequent lease of the that of October  mention in the former appeal and that he the respondent be a protestant of the  church of Ireland by law establish and as such by virtue of the statute of the  first of queen whether make in England and of the eight of the same reign make  in Ireland be entitle to the benefit of the say lease of the that of October  notwithstanding a decree of the that of June obtain by John Dixon as a trustee  for the say Francis Woodley decease in regard the say lease of October have be  grant by the say Arthur Bernard to the say Francis Woodley decease in trust  for Felix Mac Carthy or Laurence Mac Carthy his son both papist and who be  therefore incapable of hold or enjoy the same and therefore the bill pray that  cue may be decree to the say lease of the that of October and the right of  renewal therein specify and to all the estate right and trust which subsist of  the land therein contain in trust for the say Felix Mac Carthy or Laurence Mac  Carthy at any time before the that of October the date of the say second lease  and to the profit of the say land from such period of time as to the court  shall seem just and reasonable the appellant and the other defendant put in  their answer to this bill and the appellant by his answer say he have hear and  believe that the say lease of be take by his late father in trust for the say  Felix Mac Carthy father of the say Laurence brown Mac Carthy and that his  father permit the say Felix Mac Carthy during his life to enjoy the say land  under the rend and covenant contain in that lease in Trinity term the  appellant exhibit his cross bill against the respondent cue and the say Roger  Bernard and against Arthur Bernard esquire a mortgagee of the say land charge  c Pratt e Willis that the say lease of the that of October be surrender or  cancel at the execution of the lease of the that of October or at least that  the acceptance of the say lease of be a sufficient surrender of the lease of  or consider as a renewal of it or be graft on that lease and consider as one  and the same interest and so understand by all the party interest in the land  and that the say Roger Bernard be so conscious thereof that he never attempt  to set up the say lease of as a separate interest independent of the lease of  though he know of the say lease of at the time he answer the appellant bill in  the former suit to compel he to renew the say lease of and also charge that  the say bill bring by the respondent and also the ejectment therein mention  for recover the possession of the land be both bring in the name of the  respondent in trust and for the use of the say Roger Bernard and that the same  be carry on by his procurement and at his expense the cross bill therefore  pray a discovery of the premise and that the respondent cue may be stay by  injunction from proceed at law on the ejectment and that the appellant may be  quiet in the possession of the premise under the former decree make in cause  wherein the say John Dixon and the appellant be respective plaintiff the  respondent cue and the say Roger Bernard and Arthur Bernard put in a joint  answer to this last bill and thereby insist that the lease of the that of  October can not be extinguish or annul by the lease of the that of October  against protestant discoverer and the rather as the decree obtain by Dixon in  trust for the appellant late father be confine to the lease leave the  discoverable interest arise under the lease of open to be sue for the  appellant afterward amend his bill and the respondent and the other defendant  put in their answer thereto and in may he file a supplemental bill charge that  after issue have be join in the say two cause he have discover that Felix Mac  Carthy in trust for who the lease of the that of October be grant to the  appellant late father be kill by a fall from his horse on the that of June  above four month before the date of the say lease and that the lease of the  that of October be duly register in the public register office in Ireland but  that the lease of be never register nor have be execute by the say Arthur  Bernard and that if the say Felix Mac Carthy be ever in brown er p possession  of the say land it be only as tenant at will to Arthur Bernard and that  Charles Mac Carthy the uncle of Laurence request the appellant father to brown  become lessee or nominee in the say lease of in trust for Laurence Mac Carthy  the old son and heir of Felix Mac Carthy and that the say Arthur Bernard  consent to the same the better to secure certain debt due from Felix to he as  his receiver and that therefore the say lease of be take and put into the hand  of the appellant father who be relate to the say Arthur Bernard decease and  which be the reason of grant that lease to he the respondent cue and the say  Roger Bernard by their answer to this supplemental bill admit that Felix Mac  Carthy be kill by a fall from his horse on the that of June and believe that  Arthur Bernard before the death of Felix have execute a article in write to  the appellant father for a lease of the say land for three life renewable for  ever and that the appellant father have give the say Felix Mac Carthy a  declaration of trust for the say article and that both the article and  declaration of trust be put into the hand of Felix and afterward fall into the  hand of the appellant father and that the lease of the that of October be  execute in pursuance of the say article at the request of honour Mac Carthy  the widow of Felix in trust for Laurence Mac Carthy his only son and heir and  that the tenant part be execute by the say Arthur Bernard only and the lessors  part by the appellant father and that the tenant part be cancel and give up on  the execution of the lease in but that the lessors part be find among the  paper of the say Arthur Bernard by and come to the hand of Roger Bernard after  his say father death and they also believe that the say lease of be never  register and that Felix Mac Carthy be in possession of the land before his  death under the say article and declaration of trust issue be join diverse  witness be examine on both side and publication have pass the cause come on to  be hear in the court of exchequer in Ireland on the d that and that of June  after which the court take time to give their opinion till the that of the  same month when it be decree that the appellant bill shall be dismiss and that  the respondent John cue as a protestant discoverer shall have the benefit of  the say lease of the that of October and that it shall be refer to the chief  remembrancer of the court or his deputy to take a account of the rend and  profit of the land contain in the say lease which have be receive by the  appellant or for his use from the time of the respondent John cue be fill his  bill and that a injunction shall forthwith issue to put he into possession of  the say land but no cost be give on either side from this decree the appellant  appeal insist r Henley c York that it appear to have be the intent of the  several popery act and particular the act of the that of whether to prevent  papist from take land or any interest therein by purchase and for that purpose  to give to the first protestant discoverer whatever estate or interest brown  the papist have or shall have have and to entitle he to hold and enjoy the  land accord that the interest be once take out of the papist the meaning of  the act be satisfy and the discoverer be to be consider as stand in his place  and therefore to have the like advantage both in law and equity that Dixon  woodley trustee be the first protestant discoverer be entitle to whatever  interest Laurence Mac Carthy the papist have or shall have have in the land  the respondent have admit that the lease of be surrender and the lease of  accept in lieu of it during the minority of Laurence the papist and if  Laurence have be a protestant he will upon attain his full age have be entitle  to his election either to take the benefit of the lease of or of consequent if  the protestant discoverer be to stand in the place of the papist Dixon be  entitle to the same election to which Laurence will have be entitle if a  protestant the discoverer when he have prevail in his suit take possession  under the decree and by force of the act recover all the estate use trust  interest or confidence which the papist have or shall have have in the land  his title arise out of the act and he have a right to call upon the lessor to  make he such a lease by virtue of the covenant for that purpose as he be bind  to have make to the papist in case there have be no legal incapacity that the  construction contend for by the appellant tend to promote the end and design  of the law make against the further growth of popery nothing but the estate of  the papist can be affect by brown er p it the landlord be leave in the  possession of every advantage stipulate for by his original agreement and the  land property of the papist become vest in a protestant but on the other hand  the respondent construction will open a way to elude the act and must be  attend with very pernicious consequence for in the first place protestant who  real and good fide intend to sue for interest create contrary to the popery  law will be discourage from so do because if such a construction shall prevail  the apparent lease under which the papist hold will always be cover by several  old surrender lease and by this mean after the protestant discoverer shall  have establish his right to the apparent interest through perhaps or year  litigation and at a immense expense the lessor or a secret trustee for the  papist or at least some friend of the papist more agreeable to he than the  first protestant discoverer may set up one of these old surrender lease  involve the first protestant discoverer in another expensive suit perhaps to  the ruin of his family and strip he of that benefit which the act intend for  he nay even suppose that he shall have the good fortune to find out the first  and original lease yet as there can be little certainty none will venture to  purchase a interest which may possible be defeat the very day after the  purchase and in the next place such a construction will draw into question the  validity of most of the title to brown estate in Ireland under decree find on  the popery act even so far back as the that of queen whether and will only  open a door to litigation without the least advantage to the public but  further the lease of and though not identical be yet virtual the same they be  of the same land at the same rend under the same covenant make between the  same lessor and lessee and in trust for the same person both be lease for life  renewable for ever and at the same fine for renewal and though the life insert  in the lease of be different from those in the lease of yet there be in both a  covenant for perpetual renewal they must be of equal duration for the  reservation of duty in kind or money in the lease of in lieu of those reserve  in kind only by the lease of or the endorse covenant not to alien without the  consent of the lessor even suppose it to be a valid covenant create no  difference in the interest to be take in the land the lease of at the time of  fill Dixon bill be the more beneficial lease all beneficiary and vie therein  name be then live whereas one of the cetui and vie in the lease of be then  dead it be likewise the subsist lease it be admit that the tenant part of the  lease of be actual surrender and cancel at the time of take the lease of and  though it be not actual surrender yet the acceptance of the lease of be a  surrender in law of the lease of and there have be a possession and enjoyment  under the lease of since the time of make it it appear that Arthur Bernard the  lessor consider the lease of as the only subsist lease and receive rend and  give receipt on the foundation of it and the respondent his son admit that he  always until a day or two before fill the respondent cue be bill which be not  till the d of may consider and understand both lease as one and the same  interest beside the lease of be the only apparent interest and be duly  register accord to the act of parliament for that purpose but the lease of be  never register and therefore it be apprehend a court of equity ought not to  set up this surrender lease of under which it be not pretend there have be the  least enjoyment since against the only apparent and register lease under which  the enjoyment have be uniform for it will be against justice to deprive the  representative of the first protestant discoverer of the benefit of this last  lease who be not only a purchaser as against the lessor and his heir the  respondent Roger by payment of the rend and performance of the covenant in the  lease but who also on the credit of the decree obtain by Dixon and before he  enjoy any of the profit of the lease have pay more than the value of it by the  money expend in Dixon suit the arrear of rend to the amount of pound pay to  Arthur Bernard the lessor and the pound pay to Laurence Mac Carthy the papist  beside the respondent Roger in trust for who cue be bill be file be so far  from merit the interposition of a court of equity in his favour that he ought  to receive the utmost discouragement brown after the acceptance of rend by he  and his father for many year under the lease of after the oppressive and  vexatious litigation in which he have engage the appellant brown er p for so  many year concern that lease and after repeat determination in favour of it to  all which the respondent Roger or his father be party last that the decree in  favour of the respondent cue will in its consequence take away from Dixon that  legal estate to which he have be decree for cue be decree to the entire  benefit of the lease of it necessary include the benefit of the covenant of  renewal contain in it so that Bernard who by the former decree be bind to  renew for the appellant will now hold to his own use on the other side it be  argue c Pratt e will that the Irish act whether c disable papist to purchase  in their own name or in the name of any other in trust for they any land or  lease except lease for year in possession and on which rend not less than  twothirds of the improve value must be reserve and all other estate and term  be thereby make void to all intent and purpose so that with regard to all  estate purchase or lease take contrary to this act neither the papist vendee  or lessee nor his trustee can acquire any dominion or power over such estate  but the contract be a nullity and the vendor or lessor hold his land as he do  before the make of such sale or lease but after the Irish act that whether be  make whereby any protestant be enable to sue for and recover the whole  interest so grant in trust for a papist together with all other security make  to cover and protect the same these grant and conveyance be no long void to  all intent and purpose but grow to have a effect for the benefit of a  protestant discoverer and hang in a kind of abeyance unalienable and  unalterable so that neither the grantor or grantee the trustee or beneficiary  and trust either alone or in conjunction can by any possible method of  conveyance defeat or vary any interest so once grant to or in trust for a  papist save only by a sale to a protestant without notice for the moment that  such unwarrantable interest be convey to a papist or his trustee that instant  such papist or trustee become trustee for the benefit of a protestant  discoverer that it be not contend but in the present case Woodley the  appellant father be a trustee for Felix or Laurence Mac Carthy both papist nor  be it contend but that Mr Bernard make a lease for life with a covenant for a  perpetual renewal to Woodley in the year for the benefit and in trust for  those papist Woodley therefore become a trustee for a protestant discoverer in  general from the instant that Bernard execute that lease to he and if no  protestant informer have receive the benefit of that interest before the time  that the respondent cue file his bill cue ought to be decree to such lease but  it be object that Bernard make another lease for three life renewable for ever  to the same trustee in the year by which the lease of be surrender and that  this new brown lease be a discoverable interest Dixon as a protestant  discoverer file his bill and obtain a decree for it and that therefore the end  of the law be answer before cue be bill be file in answer to this objection it  must be observe that the lease of be a lease for three different life from  that of that it differ from it in its commencement and the reservation of the  duty and more material in a clause endorse upon the lease of by which the  lessee be prohibit to alien without licence the lease of be contrary to the  act whether become a trust for a protestant discoverer in general and can not  therefore be prejudice by any act of the lessor or papist lessee or his  trustee res inter elsewhere acta one mocere non to be able and as no interest  can accord to that statute have pass to Woodley by the lease of he have no  dominion over it as to he and his beneficiary and trust it be void in its  creation and exist only for the benefit of a protestant discoverer who shall  sue for the same under the that of whether which law disable Arthur Bernard  from take such a surrender as much as it disable any other person have notice  of the trust from purchase the lease it have accord be often determine in  court of equity in Ireland and be the general and prevail opinion there that a  discoverable interest can never be cancel even by a express surrender the  lessee or his nominee have no interest to grant and this act of woodley be at  most but a imply surrender of the lease of a strong it can not be give up so  as to defeat a protestant discoverer from recover the same that Dixon by his  bill take no sort of notice of this lease of but confine the allegation and  prayer of it to the lease of and can therefore be decree to that lease only  and if no discoverer have ever pray the benefit of the lease of Dixon will  brown er p have the full benefit of his bill as he in fact have by enjoy the  profit of the land from the time of its be file to the time of cue be fill the  bill in question he may indeed have frame his bill in a general way and  suggest that the papist or his trustee beside the lease of take other  unwarrantable lease or interest and may have pray to be decree to all estate  or interest take by or in trust for the papist contrary to the act whether but  this he do not do and therefore leave the lease of open to be sue for by cue  that the end of the law can not be answer by Dixon bill for this end be to  make a unwarrantable lease to a papist of his trustee void in its creation in  respect of the papist which it be not if Woodley can have surrender the lease  of or destroy the benefit of it from come into the hand of a protestant  informer but if the end of the law have be in some sort answer that will not  have enable Woodley to surrender the lease of for the end of the law will have  be equal answer by the papist or his trustee assign the lease to a protestant  have notice of the trust and nature of the lease and brown yet it have be  often hold in the court in Ireland and be look upon as a point not to be  dispute that no such assignment can be make good to defeat the interest of a  protestant discoverer but that such lease will always remain open to be sue  for and recover by he out of the hand of such protestant assignee it be  however say that at this rate there always will be a private lease and when  the discoverer come to look for the lease that be public a friendly discoverer  will start up and sue for the private lease but it be not pretend that the  lease of be make for this purpose or that the land be not hold under that  lease till the make of the lease in nor can it be pretend that it be make to  deceive Woodley who execute it there must be a uniform rule to judge by for if  it shall be in the power of the papist or his trustee by a express or imply  surrender or by any other act to defeat or vary a right once vest in a  discoverer there be a end of that part of the act this inconvenience will  always be and may in the present instance have be prevent by the first  discoverer frame his bill in the general and extensive manner above mention  and where the bill be thus frame the plaintiff without any amendment to be  make in the progress of the cause will be always decree to every discoverable  interest create for the benefit of any of the party but after hear counsel on  this appeal it be order and adjudge that the decree therein complain of shall  be reverse and it be declare that the lease in question date the that of  October ought to be deem to never be duly surrender or in case any estate or  interest thereby grant be still subsist the appellant as the first protestant  discoverer be entitle to the benefit thereof by virtue of the former decree  affirm by the house on the that of December and the Irish act of the that of  queen whether and it be therefore order that the bill bring by the respondent  John cue in the court of exchequer shall stand dismiss out of the say court  and upon the cross bill bring by the appellant it be order that the say lease  of the that of October shall be deliver up by the respondent to the appellant  and that a perpetual injunction shall issue out of the say court against the  respondent to restrain they from proceed at law in the ejectment already bring  or in any other action at law by colour of the say lease and from set up the  same and that the appellant shall hold and enjoy the land and premise in  question by virtue of the decree former affirm and of this judgement accord to  all such estate use trust interest or confidence which Felix Mac Carthy or  Laurence Mac Carthy his son or Francis Woodley in trust for they or either of  they have or shall have have therein provide the say Felix Mac Carthy or  Laurence Mac Carthy have be qualify to purchase hold or enjoy the same subject  nevertheless to such rend covenant condition reservation and encumbrance brown  as in the say act be describe and it be further order that the respondent  Arthur Bernard and John cue shall pay the appellant his cost both of the  original and cross cause in the say court and also his cost of the ejectment  at law to be tax by the deputy remembrancer and that the say court shall give  all proper direction for carry this judgement into execution jour vol p brown  er p