brown case William errington appellant John carrack and other respondent saint  may a estate be limit in trust to a for life remainder to trustee to preserve  etcetera remainder to his first and other son in tail male remainder to b for  life remainder to trustee to preserve etcetera remainder to his first and  other son in tail male remainder to the right heir of the grantor a be a  papist and have no son the trust during his life shall go to the grantors  right heir and not to b the next remainder man the statute of William c which  disable a papist from purchase land disable he also from take by purchase and  consequent from take by devise p wms decree of Lord chancellor king affirm  many other point relative to the statute against papist be also involve in  this case see the report cite infra Mod p wms Moseley Eq ab can can can Ann  Edward errington the cousin and heir at law of William errington a infant who  be entitle to and in possession of the estate in question which be a ancient  family estate of about pound per and do in the life time of the infant by  indenture date the that of October covenant to levy a fine of the say estate  to the respondent Ridley and Fenwick and their heir and by another indenture  date the that of the same month it be declare and agree that the say fine  shall enure to the use of the say Edward errington for life without  impeachment of waste remainder to a trustee and his heir to preserve  contingent use remainder to the first and other son of Edward errington in  tail male remainder to the respondent Thomas errington for life without  impeachment of waste remainder to the trustee and his heir to preserve  contingent use remainder to the first and other son of the respondent Thomas  errington in tail male remainder to the appellant for life without impeachment  of waste with the like remainder to preserve contingent use remainder to the  first and other son of the appellant in tail male with remainder to the say  Edward errington in fee the fine be accord levy and in the year the infant die  without issue whereupon the estate descend to the say Edward errington as his  heir at brown er p law and he enter and brown become seize thereof accord but  be desirous to supply any defect which may be in the say settlement and be  indebt to the respondent Thomas errington the appellant uncle in three several  bind one for pound another for pound and another for pound and interest he the  say Edward errington by indenture of lease and release date the saint and d of  April and by fine thereupon levy in consideration of pound therein mention to  be pay to he by the respondent Ridley and Fenwick but which be real the money  of the respondent Thomas errington then compute to be due on the say three  bind and for other consideration do grant and convey the estate in question to  Ridley and Fenwick and their heir to the use of he the say Edward errington  for life with remainder to his first and other son in tail male remainder over  to Ridley and Fenwick and their heir subject to be charge with such provision  for the wife daughter and young child of the say Edward errington as therein  express the respondent Ridley and Fenwick by indenture execute the same day  but date the day after be the d of April do declare that the pound mention in  the say indenture of release to be by they pay to the say Edward errington for  the purchase of the reversion and inheritance of the premise be the proper  money of the respondent Thomas errington and that their name be make use of in  the say indenture of lease and release and other conveyance of the premise  from and after the death of the say Edward errington without issue male and  liable to be charge as therein mention in trust only for the respondent Thomas  errington and his assign for his life without impeachment of waste remainder  to a trustee for preserve contingent remainder remainder to the first and  other son of the say Thomas errington in tail male remainder to the appellant  for life without impeachment of waste with the like remainder to preserve  contingent use remainder to the first and other son of the appellant in tail  male with remainder in fee to the say Edward errington in September Edward  errington die without issue and thereupon the respondent Thomas errington  enter on the estate but in Michaelmas term the respondent Carrick Lorraine and  wife and Robson and wife exhibit their bill in chancery against he and also  against the appellant and the respondent Ridley Fenwick Soulby and Frances  errington and other charge that the respondent Thomas errington and the  appellant be papist and therefore by the statute of the that and that of  William be disable to take by purchase any interest in land that Edward  errington be infirm and weak in body and mind and not sensible when he execute  the say several conveyance that the pound consideration money be not pay but  insert only in the say indenture of release to colour the same and that the  say deed seem to have be gain by fraud or imposition and therefore the bill  pray that the plaintiff S brown may be put into possession of the premise or  at least that they may be at liberty to try their title at law without be  prejudice by the deed of April to this bill the several defendant put in their  answer and the appellant by his answer deny that he be a papist or that he  ever profess the popish religion but say he be a protestant of the communion  of the church of England as by law establish and insist that the respondent  jane Lorraine Margaret Robson and Frances errington be papist that the  respondent carrack mother be also a papist and that Edward errington be in  good health and of sound memory and understanding at the time of execute the  say conveyance and well understand the content thereof and therefore the  appellant insist on the benefit of such conveyance the cause be at issue  diverse witness be examine on both side and upon hear the same before the Lord  chancellor Macclesfield on the that of June his lordship be please to declare  that there be a gross imposition upon the say Edward errington in obtain the  say deed of settlement from he and that the person who obtain the same ought  not to have any benefit thereby but to the end the whole case may be before  the court before further judgement give his lordship order that it shall be  refer to Mr Bennett one of the master of the court to inquire and see when the  say deed and the say declaration of trust from the respondent Ridley and  Fenwick be execute as also to inquire what be the consideration of the two  bind for pound and pound enter into by Edward errington to brown er p the  respondent Thomas errington and to state these several matter special to the  court and after the master shall have make his report the cause be to come  again for the further direction of the court and in the mean time it be refer  to the master to appoint a receiver the master appoint a receiver accord and  by his report date the that of February certify that the execution of the deed  of lease and release and declaration of trust and the payment of the  consideration money of the say two bind be prove before he the cause come to  be hear on the master report before the Lord chancellor king on the that of  June his lordship be please to declare that it have be already declare upon  the former hear that there be a gross imposition on Edward errington in obtain  the deed of settlement and that the person who obtain the same ought to have  no benefit thereby the court can not then enter into the matter of fraud but  that the say deed of settlement ought to be take to have be fraudulent obtain  accord as be declare in the say order and do therefore decree that the say  settlement shall be deliver up to the plaintiff to be cancel and it be refer  to the master to take a account of the profit of the estate in question  receive by the respondent Thomas errington since the death of brown the say  Edward errington discount thereout what be due to he for principal and  interest on the say three bind and thereupon the say bind be to be deliver up  and the surplus of the say profit be to be divide into four part and the  respondent the coheir of Edward errington be each of they to have onefourth  part and the receiver of the estate be to account before the master and pay  the money in his hand in like manner and deliver possession of the estate to  the say coheir and the tenant be to attorn and pay their rend accord the  appellant and the respondent Thomas errington conceive themselves aggrieve by  the say order of the that of June and that of June petition for a rehear of  the cause which be grant the same be reheard on the that of November when his  lordship order that both the say former order shall be reverse and declare  that he see no cause to set aside the settlement make by Edward errington but  that the respondent Thomas errington to who a trust for life be limit for his  benefit be a person possess the popish religion the trust be void by the  statute of the that and that of William and that during his life the plaintiff  and the defendant Francis errington the coheir of the say Edward errington be  entitle to the rend and profit of the estate from the death of Edward  errington and therefore refer it to the master to take a account of the profit  of the estate receive by the respondent Thomas errington since the death of  Edward and what the master shall certify to be remain in his hand after all  just allowance be to be pay by he to the respondent the coheir of Edward  errington videlicet to each a four part thereof and the receiver be also to  account and pay the rend in his hand in like manner and he be likewise to  deliver possession of the estate to the say respondent the coheir and the  tenant be to attorn and pay their rend to they from that part of this decree  which direct possession of the estate to be deliver and the profit to be  account for to the coheir during the life of the respondent Thomas errington  the present appeal be bring and on behalf of the appellant it be contend p  York W lee that Edward errington have by the settlement convey away the whole  estate subject to the use and trust express declare his heir at law be thereby  exclude from have any benefit of this estate till after all the particular  intermediate use be spend and therefore to raise a trust by implication in  favour of the heir at law during the life of the respondent Thomas errington  out of the suppose estate of Soulby the trustee to preserve the contingent use  be to give they a preference to the particular use to which they be express  postpone by Edward errington the grantor who have a absolute power over the  estate that where a estate be limit to a person incapable of take the next  remainder ought accord to the rule of law to take place immediate and  consequent Thomas errington be incapable to take by the act of and brown will  and have no issue the appellant be entitle to be let into the perception of  the profit immediate upon the death of Edward errington without issue there be  no intervene equitable estate to prevent he for brown er p though the legal  estate shall be take to be in Soulby to preserve the contingent use which  possible may never arise yet since the trust annex to that estate be void to  all other purpose it ought not to be any impediment to the appellant enjoy the  benefit of the estate nor have any far effect than to preserve the legal  interest in the trustee for that contingent purpose for which alone it can be  good videlicet to let sin the son of Thomas errington in case he shall have  any and not to obstruct time limitation of the settlement in any other respect  much less to prefer the grantors heir at law to the appellant contrary to his  express intent declare in the deed but suppose there be a result trust during  the life of Thomas errington yet that trust arise upon the settlement of which  be good by estoppel and Edward errington have a power to dispose of it and  accord do so by the subsequent settlement of consequent that trust estate be  no way necessary to preserve the contingent remainder under the settlement of  will now vest in the appellant there be no person in be capable of take it  before he it be therefore hope that the decree will be reverse in the  particular before mention and that the bill will be dismiss with cost on the  other side it be insist W peer William that the decree be just and that the  appellant be not by the settlement to take any estate until the death of  Thomas errington without issue male who may have issue male that may be  protestant that Thomas be a papist and disable to take by virtue of the  statute and the appellant not be entitle until Thomas shall be dead without  male issue the premise during the life of Thomas ought to go and belong to the  heir at law of Edward who make the settlement as a estate undisposed of by he  accord after hear counsel on this appeal it be order and adjudge that the same  shall be dismiss and the decree therein complain of affirm and it be further  order that the appellant shall pay to the respondent Christopher Soulby pound  for his cost sustain by reason of bring the appeal jour vol p Carrol v vicar  brown PC er report date brown case barnaby carol appellant richard vicar  respondent d April Mews dig twelve a Irish papist conform any where out of  Ireland can purchase land in that kingdom before he have comply with the  several requisite of the Irish act of and Ann decree of the Irish court of  exchequer affirm brown er p the general method of conformity direct and intend  by this act be to renounce before the bishop of the diocese in which the  papist shall inhabit the error of the church of Rome and enrol in the court of  chancery a certificate thereof from the bishop testify his be a protestant and  conform to the church of Ireland as by law establish and at the time of pass  this act it be think sufficient for the convert to renounce popery before the  bishop of the diocese where he dwell as be the fit to judge of the convert  sincerity and enrol his ceirtificate to show himself a protestant but it be  find afterward brown that many such pretend convert have notorious elude the  act another act be pass annae to explain and amend the former act and by this  latter statute it be enact that all land tenement and hereditament convey or  lease to any papist or person profess the popish religion contrary to the true  intent and meaning of the say act shall and may be sue for and recover by any  protestant who shall have execution to be put in seize and possession thereof  to hold and enjoy accord to the estate and interest which such papist or  person profess the popish religion shall have have therein have he be qualify  to purchase hold and enjoy the same and further that no person who have turn  or shall turn from the popish to the protestant religion shall be deem or take  to be a protestant within the intention of either of the say act or take any  benefit thereby notwithstanding such person so profess himself a protestant  shall pursuant to either of the say act procure the certificate of the bishop  of the diocese unless such person shall within six month next after declare  himself a protestant or within six month after he shall attain the age of year  or those who have already be convert do before the that of December or within  three month after he or they shall return to Ireland if out of it take and  receive the holy sacrament of the lord supper accord to the usage of the  church of Ireland and make and subscribe the declaration and take the oath of  abjuration and file in the court of chancery or some other of his majesty four  court in Dublin a certificate thereof in such manner as the bishop certificate  be direct to be file any thing in either of the say act to the contrary  notwithstanding the appellant on the saint of September purchase from Thomas  vicar for pound several lease and interest in land and tithe in the queen  county and in the county of Kilkenny some for life other for long term of year  out of which several rend be reserve and he purchase from Lord Ross for pound  S d Ballylenan and acre in Moncurr in the king county for his lordship life  the appellant also purchase other estate and be at the time of these several  purchase a papist or person profess the popish religion be bear of popish  parent and educate in that religion the respondent be of protestant parent and  educate in the protestant religion on the that of February file his bill as a  protestant discoverer on the say act in the court of exchequer in Ireland  against the appellant and the say Thomas vicar to recover the benefit of the  several estate so purchase the appellant after many great and affect delay  file two insufficient answer but do not file his three answer until the that  of may be about three year and three month after the bill be file and by this  answer he insist that the respondent be a dragoon in the late king James army  and then brown go to mass and have not since conform to the establish church  and therefore be not qualify to be a protestant discoverer That the appellant  about go to London where he become and have ever since continue a protestant  he confess the purchase from Thomas vicar and Lord Ross but deny any other  purchase except one from Thomas short he however insist that Owen Carrol the  appellant father on his intermarriage with the appellant mother settle the  land purchase from short to the use of himself for life remainder in tail male  to the issue of that marriage of which the appellant be the old son that Owen  his father be attaint of high treason on account of the rebellion in Ireland  his estate for life be forfeit and sell to short by the trustee for forfeiture  who have in he only a estate for Owen life which the appellant purchase and  brown er p that Owen die a few month after he admit that he be bear of popish  parent but insist that at the time of the say purchase he be a protestant and  qualify to purchase within the intent and meaning of the say act the  respondent file his replication on the that of November and soon afterward a  commission to examine witness as well for the appellant as for the respondent  issue and be execute in the queen county where the respondent examine many  witness but the appellant none though both his commissioner join with the  respondent commissioner on the essoign day of easter term the first rule for  publication be grant and publication will in four day after have pass absolute  accord to the stand rule of the court unless the appellant can have show by  affidavit that he have witness to examine and that he can not for good reason  have examine they on the former commission but the appellant attorney not have  any such affidavit prevail with the respondent attorney to enter into the  follow consent which be sign by both atorneys videlicet and this consent be on  the motion of the appellant attorney make a order of court on the that of may  follow in pursuance of this order the appellant examine several witness in  Ireland and also take out a commission and examine several other at saint  Dunstan coffeehouse in London and return their deposition on the that of  November the appellant move to respite publication and that be may have  commission to examine witness at Utrecht in holland and in or near parish and  also in Ireland allege that the say consent be enter into without his  direction or privity and that Cornelius van eck and gulielmus van de water and  other live at Utrecht and Richard Warburton of brown the queen county in  Ireland then in or near parish be very material witness without who testimony  as he be advice he can not safe proceed to a hear and that Warburton be in  London some short time before the that of August and intend to go to parish  before that day he end endeavour to prevail on he to stay and be examine which  he refuse and go for holland and that one of the respondent commissioner  refuse to join and examine Warburton before he go this motion the respondent  oppose by show the many affect delay of the appellant and that while the cause  be delay he receive the profit of the land but do not pay the chief landlord  rend or other necessary outgo that but for the say consent the appellant can  not accord to the practice of the court have examine any witness after the  first time for pass publication and that therefore the say consent be great to  the appellant advantage that issue be join on the that of February the  appellant may have have a commission and examine in Utrecht between that day  and the d of November follow if he have think fit the respondent also produce  to the court a affidavit that Warburton be in Ireland twelve month before the  that of April and in Dublin fourteen day before that time so that the  appellant may have examine he either by commission in Ireland or before a  baron of the exchequer in Dublin and upon hear counsel on both side the court  think proper to refuse the motion and order publication to pass on the d and d  of December the cause be hear when a attest copy the memorial of the purchase  from Lord Ross by lease and release of the that and that of February register  in the register office and a attest copy of the enrolment of a certificate  from the archbishop of Dublin certify that it be on the that of February that  the appellant renounce before he the error of the church of Rome and be by his  grace order receive into the communion of and do conform to the church of  Ireland as by law establish be read and the respondent full prove by the  testimony of many credible witness that the appellant be bear of popish parent  educate in the popish religion go to England in and return to Ireland in when  accord to the say act to make he a protestant capable of purchase he ought in  three month after his return to have perform all matter requite by the act and  particular brown er p to have receive the holy sacrament accord to the usage  of the church of Ireland but instead thereof it be full prove by many credible  witness that the appellant in go frequent to mass and public receive the  sacrament in a popish chapel from a priest of the church of Rome and that  several time afterward as often as he return to Ireland be go frequent to mass  it be also prove by two witness that he be at mass in and by one witness that  he profess himself a papist till within a few month before his brown father  death and by another witness that he be a papist even at his father death  which happen on the that of August though the appellant pretend he in become a  protestant and continue so at the time of make the say purchase on the other  hand a sheriff bailiff and some other examine for the appellant swear that  they have see the respondent in the late king James time at mass and that they  have hear he be a dragoon when the protestant in Ireland be under the  persecution of popery yet the respondent prove evident that he be then but  year old and that he be bear of protestant parent and educate in and always  profess the protestant religion but the appellant not prove that he have  perform the requisite of the act his counsel insist that a papist may become a  protestant and be capable of purchase land without qualify himself as the act  direct wherefore the court declare that before they will give judgement they  will hear counsel on both side to that point accord on the that of February  follow the point be full debate by many counsel on both side and the act be  read and the court take time to consider and advice before they will give  judgment And on the d of June the court declare that it full appear by the  proof that the respondent be well qualify and entitle to bring his bill as a  protestant discoverer on the say act and that the appellant not have perform  the requisite by the say act nor renounce the error of the church of Rome as  the act require until the that of February he be not qualify to purchase or  acquire the say several interest and estate from the say Thomas vicar and the  Lord Ross and therefore decree the respondent as a protestant discoverer to  the benefit of the say purchase from Thomas vicar and Lord Ross and a account  of the profit of they since fill his bill with cost to be tax but dismiss the  respondent bill with cost as to the other purchase and order injunction to put  the respondent in possession of the say purchase from Thomas vicar and Lord  Ross the appellant therefore appeal not only from this decree but also from  the order of the that of November for pass publication insist p York c Talbot  that it appear by the proof in the cause that at the time of his make the say  several purchase he be a protestant of the church of England as by law  establish and therefore well qualify to purchase land etcetera none but papist  or person profess the popish religion be disable by the say act from purchase  that it also appear by the proof that the respondent have be a dragoon in king  James army in the Irish rebellion of and have then public profess the popish  religion and never since duly conform accord to the act be not sufficient  qualify to be a protestant discoverer or informer or to take any such benefit  by those act as he now seek whereas the appellant claim no benefit thereby but  only to preserve and defend his own property and purchase brown honest make  and pay for and therefore the court ought to have dismiss the respondent bill  with cost on his fail to make out a title by prove his own capacity and the  incapacity of the appellant that the pretend agreement for publication to pass  on the essoign day be not only procure by the artful management of the  respondent attorney without the knowledge or consent of the appellant who be  then in London and calculate to deprive the appellant of his right to examine  his witness but the same have be express waive by the respondent examine  several witness after the essoign day contrary to that agreement that the  court have refuse to grant commission for examine Mr Warburton in parish and  the several other material witness at Utrecht the appellant be thereby debar  from the benefit of their testimony on the hear which will have great  strengthen the evidence of his other witness examine in the cause and full  prove that the appellant be a student actual reside at Utrecht in at the very  time when one of the respondent popish witness brown er p false swear to have  see he at mass in Ireland that if such popish combination against protestant  who parent have be papist be not discourage and real convert secure in their  right and property the several act of parliament make to prevent the growth of  popery will have a contrary effect and papist will be discourage from become  protestant at the same time that protestant in all popish country be great  encourage to become papist that if take the oath of allegiance abjuration and  supremacy and make and subscribe the declaration as by law require shall not  be adjudge a sufficient proof of a papist become a protestant without a formal  renunciation before a bishop which the appellant also make eight day before  the respondent file his bill it will endanger the right and property of  several protestant convert especial among the Presbyterian anabaptist quaker  and other dissenter who by their principle do not allow episcopacy and  consequent can make such a renunciation and to compel they thereto will be  deem a persecution and violation of the tolerance act and contrary to the true  intent and meaning of the two Irish act on which this suit be find it be  therefore hope that the decree will be reverse and the respondent bill dismiss  with cost on the other side it be argue t Lutwyche d rider that as to the  order for pass publication it be too late to apeal from it after publication  have actual pass the proof see and a decree make and if that order shall now  be reverse it will be to give the appellant the liberty of examine witness  contrary to the most certain and establish rule of all court of equity which  to prevent perjury never suffer the party to examine witness after the former  deposition be once publish and know beside it be improbable that the appellant  can prove in holland his renounce popery and perform the other requisite of  the act in Ireland and to prove that he renounce it in Utrecht will brown not  make he a protestant in Ireland but further the affidavit on which the  appellant move be insufficient  and do not accord to the rule of equity show  to what fact he will examine in foreign part so that the court may judge  whether they be material or not and if material grant a commission unless the  respondent will agree to admit such fact at the hear and as to the decree it  be contend to be well find because the respondent be of protestant parent  always educate a protestant and therefore well qualify to be a protestant  discoverer under the say act but the appellant be of popish parent and educate  in the popish religion and be a Irish papist and not have renounce popery nor  obtain and enrol the bishop certificate or receive the sacrament accord to the  usage of the church of Ireland nor perform the other matter require by the act  to make he be consider as a protestant he be not qualify as a protestant when  he make the purchase in question for by the archbishop of dublin certificate  it appear that the appellant conformity be subsequent to the make of those  purchase that though the appellant say in his answer that in when but or year  of age he go to London and there become a protestant and continue so at the  time of his make the purchase yet there be the full proof that several year  after he receive the sacrament in Ireland accord to the usage of the church of  Rome and continue so to do as often as he return from abroad to Ireland and  that in and he go to mass and be a papist to the time of his father death in  August that the intent of the two act of parliament above state be to  strengthen the protestant and weaken the popish interest in Ireland and  thereby secure the church and state which have be frequent in the most  imminent danger from the practice of Irish papist it be therefore of the  utmost consequence and the direct view of those act to keep the land out of  their hand that they may not have large clan ready to rise with they in  rebellion and it be a know rule in the construction of act of parliament that  such as be make to prevent a public mischief shall receive the most liberal  construction to answer the end thereby intend it be apprehend that there can  scarce be a case in which that rule ought to be more follow than the present  that after pass the act annae the legislature find that many shift and evasion  have be practice to elude that law and therefore by the act annae they direct  the several other requisite to be perform as the strong tie which human policy  can invent to show the sincerity of the party and therefore until brown er p  those requisite be perform no person convert or to be convert shall be deem a  protestant within the intent and meaning of either of the act even though he  shall obtain and enrol the bishop certificate of his recantation and last that  though the matter in dispute in this cause be but of small value yet it be  presume that the event of it will brown great effect the protestant interest  in Ireland and will be a last precedent to posterity to direct what matter  Irish papist declare themselves convert must perform to show their sincerity  before they can be qualify to purchase land in Ireland it be therefore hope  that the appeal will be dismiss with cost accord after hear counsel on this  appeal it be order and adjudge that the same shall be dismiss and the decree  therein complain of affirm jour vol p