brown case robert ross and other appellant Samuel close and other respondent d  February where a party plead his title and swear himself a purchaser for a  valuable consideration without notice of the plaintiff title it be contrary to  the usual practice of court of equity to allow a examination of witness in  perpetuan rei memory in order to defeat the title of such purchaser but the  plaintiff ought to proceed to recover as he can without the aid of a court of  equity this be one of the case which arise on the law against papist and  therefore now of little interest it appear however that the determination be  rather against than in favour of the principle above state by Mr brown the  original compiler of these case as the order of the Irish chancellor for  overrule the plea be affirm sir Robert Maxwell bart be seize in fee of the  land of bally castle and other land in the country of Londonderry in Ireland  and have issue by his first lady George Maxwell his only son and Elizabeth his  only daughter he in the year dispose of his say daughter in marriage to James  butler esquire and acknowledge a statute staple for pound to Mr butler for  secure her marriage portion in sir Robert intermarry with dame Margaret his  second wife and by a settlement date the that and that of may make in  pursuance of a agreement before the marriage and in consideration thereof and  of a considerable marriage portion have with her he convey the say land to  Henry lesley and James Maxwell and their heir to the use of himself for life  remainder to dame Margaret brown er p for life for her jointure remainder to  his first and every other son by her in tail male remainder to the heir of his  body by the say Margaret remainder to William Godfrey and Henry Maxwell for  year in trust out of the rend issue and profit to pay the executor or  administrator of dame Margaret pound and also to pay such legacy as he shall  leave or devise by his last will remainder to his own right heir some time  after make this settlement sir Robert Maxwell die without any issue by dame  Margaret who thereupon become entitle to the land for her life Elizabeth the  daughter of sir Robert and wife of James butler die soon afterward leave issue  only one son name James and James butler the father after the death of the say  Elizabeth his first wife intermarry with the say dame Margaret in the year and  have issue by her the respondent Catherine their only child the say James  butler the elder die in but before his death make his will and appoint dame  Margaret executrix thereof and thereby devise the say statute staple and the  benefit thereof from and after the death of the say dame Margaret in trust as  to one three part thereof for his son the say James butler brown junior and as  to the other two three in trust for the respondent Catherine his daughter by  the death of sir Robert Maxwell the reversion and inheritance of the land  subject to the jointure and the say term of year and also to the say statute  staple descend to sir George Maxwell his only son and heir who upon the  revolution in become a papist and afterward continue in the open profession of  the popish religion during all his life and die seize of the say reversion  some time in the year without issue on the death of sir George Maxwell this  reversion descend to the say James butler junior as his nephew and heir at law  who be a protestant and he be seize thereof do by deed date the saint and d of  October in consideration of pound real and good fide pay to he convey the same  and all his estate and interest therein to dr Robert Maxwell and his heir in  trust for the say dame Margaret butler and her heir which deed be duly  register accord to the law of Ireland on the that of the say month of October  and the say dr Maxwell by deed duly execute declare the say trust accord dame  Margaret be so entitle to the inheritance of the land and a marriage be  afterward agree upon between the respondent Samuel close and Catherine  indenture of lease and releaser date the that and that of January be execute  between dr Robert Maxwell of the first part dame Margaret and the respondent  Catherine of the second part the respondent Samuel of the three part John  Maxwell and Robert Maxwell esqrs of the four part and Samuel wear and James  Manson of the five part whereby in consideration of the say intend marriage  and for provide for the respondent Catherine and her issue by the respondent  Samuel dr Robert Maxwell by the consent of dame Margaret convey the say land  to the say John and Robert Maxwell and their heir subject to the say jointure  statute staple and term to the use of the respondent Samuel and Catherine  during their joint life and in case Catherine shall survive Samuel then as to  two three thereof to the use of Catherine during her life and as to the other  three part and also the two three after the death of Catherine to the use of  the first and every other son of the say Samuel by Catherine in tail male and  for default of such issue to the use of the daughter of the say Samuel and  Catherine and the heir of their body and for want of such issue to the right  heir of dame Margaret these deed be also duly register on the d of July the  marriage soon afterward take effect and the respondent Samuel and Catherine  have issue two daughter namely the other respondent Margaret and mary sir  George Maxwell be a papist and continue so to his death be disable by a act of  parliament make in Ireland d annae to prevent the further growth of popery  from make brown any voluntary conveyance or disposition of his real estate and  by this act all estate whereof any papist be seize in feesimple or fee tail be  make descendible to his son or other person inheritable thereto  notwithstanding any such voluntary disposition or conveyance but  notwithstanding this disability sir George Maxwell by lease and release brown  er p date the that and that of October take upon he without any consideration  to convey the say reversion in fee to Thomas Maxwell of Cuil in north Britain  who soon afterward die without issue sir Robert Maxwell of orchard town claim  as his cousin and heir and by deed of lease and release date the d and that of  April convey all his estate and interest in the say reversion to John Nelson  who together with the last name sir Robert and Isabel the widow of the say  Thomas Maxwell by lease and release date the that and that of September follow  and by a fine afterward levy convey all their estate and interest therein to  Hector Graham and his heir in trust for the appellant the appellant thus claim  a right to the say reversion on the that of march file a bill in the court of  chancery in Ireland against the say dame Margaret and other set forth their  say title and pray inter alian to have the conveyance make by the say James  butler to dr Robert Maxwell set aside the respondent Samuel and Catherine find  that the appellant insist on the say pretend title under the say deed and fine  and that dame Margaret after she have answer the say bill on the that of  January exhibit a bill in the say court of chancery in her own name against  the appellant without take easy notice of the settlement make upon the  marriage of the respondent Samuel and Catherine or of the title of they and  their issue to the premise under the same do on the saint of June exhibit a  bill in the say court in their own name and in the name of their say two  daughter against the appellant and other set forth that sir George Maxwell be  in and before the year a profess papist and die so and state the conveyance  make to dr Robert Maxwell by the say James butler junior the say dr Robert  maxwell deed declare the trust for dame Margaret Maxwell and the say  settlement make upon the marriage of the respondent Samuel and Catherine  charge that in the deed allege to have be execute by sir George Maxwell to the  say Thomas Maxwell there be a proviso or power of revocation express reserve  to sir George to revoke and make void the same at his pleasure and that he  afterward do revoke the same and that the say deed be find among the other  paper of sir George after his decease and therefore pray that the respondent  may be at liberty to examine several witness therein name to the proof of sir  George maxwell be a papist on the that and that of October and of his die so  and that the testimony of the say witness may be perpetuate brown the  appellant put in a answer and plea to this bill and in their answer confess  that by the death of sir Robert Maxwell of Ireland sir George as his only son  and heir become seize of the reversion and inheritance of the premise that the  say sir George die without issue in and that the say James butler be his heir  at law and always a protestant they also confess the execution of the deed by  the say James butler junior to dr Maxwell but insist on the deed of the that  and that of October make by sir George Maxwell to Thomas Maxwell and admit  that there be therein contain a power of revocation they also insist on the  several other deed make by sir Robert Maxwell of orchard town and the say  Isabel and John Nelson and that the appellant be entitle to the reversion  under those deed and as to that part of the bill by which the respondent pray  to be at liberty to examine witness therein name to prove that sir George  Maxwell be a papist on the that and that of October or at any time before or  after and that the testimony of such witness may be perpetuate and give in  evidence against they or any other person derive under they they plead that  the say sir George Maxwell be bear of protestant parent and that he be breed a  protestant and profess the protestant religion in his infancy and after he  attain his full age to the time of his death and that he be not convict in his  lifetime upon any indictment or information for be pervert from the protestant  to the popish religion that the say Thomas Maxwell sir Robert Maxwell of  orchard town Isabel Maxwell and John Nelson be always protestant and that the  appellant and the say Hector Graham be protestant and bear of protestant  parent and further plead that the appellant be for the valuable consideration  of pound of money pay purchaser of the reversion and inheritance of the  premise under the say deed without any notice of sir George maxwell be a  papist on the say that and that of October or at any time after brown er p  this plea be argue before the Lord chancellor of Ireland on the that of  November his lordship be please to overrule the same the appellant therefore  appeal from this order and on their behalf it be argue I will W Hamilton that  as they have swear themselves purchaser for a valuable consideration without  notice of the respondent title it be apprehend to be contrary to the usual  practice of court of equity to allow a examination of witness in perpetuan rei  memory in order to defeat the title of such purchaser without notice but that  the respondent ought to proceed to recover as they can without the  interposition or aid of a court of equity that this attempt ought to meet with  the less encouragement in the present case because it appear that sir Robert  Maxwell the father die in that sir George the son live till that no  prosecution be commence against he during his life nor be any attempt make to  prove he a papist brown till this bill be file in the year several year after  the purchase be make and memorial of they duly register that whatever may be  the case against the person claim under a voluntary settlement from a papist  the difference will be very great as to those person who be real purchaser and  especial in a case like the present where the purchaser be protestant and  where the respondent claim be under the heir at law of that very person under  who the appellant claim to be purchaser that if it be ever allow to examine  witness in perpetuan rye memory against a purchaser it be only where the title  of the plaintiff be clear and indisputable but in this case the appellant by  their answer deny that they believe that any such settlement be make and it be  observable that though the respondent be defendant to the bill bring by the  appellant and put in their answer yet they do not thereby disclose or mention  the now pretend settlement and therefore it be hope that the order will be  reverse and the plea allow on the other side it be insist p York c Talbot that  by the act of d annae all estate whereof any papist then be or shall at any  time after be seize in feesimple or fee tail shall be of the nature of  gavelkind and shall descend after the death of such papist to his son or to  such other person as shall be inheritable thereto share and share alike  notwithstanding any disposition or alienation to be make thereof by such  papist unless for valuable consideration of money real and good fide pay but  that in case the heir at law of such papist shall be a protestant he shall  have the whole accord to the course of the commonlaw that the deed of October  execute by sir George Maxwell to Thomas Maxwell under which the appellant  claim be mere voluntary and not make for a valuable consideration in money and  good fide pay accord to the direction of the say act that there be a power of  revocation contain in those deed and that the same be at all time after the  execution thereof in the custody of sir George and find among his paper after  his death be sufficient proof of their be voluntary and therefore fraudulent  as against the protestant heir at law that no conviction by indictment or  information be necessary to prove a person a papist so as to make his estate  descendible in gavelkind or to make void any voluntary disposition of his  estate although such conviction will be necessary to subject a papist to the  penalty inflict on he by the law of Ireland for turn from the protestant to  the popish religion that notice be not necessary of the party be a papist who  make such voluntary disposition nor will the want of notice make such  disposition good either as to those who immediate claim under it or to any  other person who may claim as purchaser from they that by virtue of the  settlement make on the marriage of the respondent Samuel and Catherine all the  respondent be purchaser of the premise for a valuable consideration under the  protestant heir at law of a person who be brown real a papist that the  respondent can not during the life of dame Margaret bring any action or suit  for try their title to the premise and if the witness to prove sir George  maxwell be a papist shall all happen to die in her lifetime the respondent  will be deprive of their evidence and may be put to great inconvenience but  the appellant can not be hurt by such examination if as they allege sir George  be and continue a protestant the order therefore ought to be affirm and the  appeal dismiss with cost brown er p accord after hear counsel on this appeal  it be order and adjudge that the same shall be dismiss and the order therein  complain of affirm jour vol p