case jones ux vers Meredith be eager or anxious in scacc a mortgage by a  Popish heir may be redeem by the next protestant kin Eq Abr pl bunb S c in  term Geo the complainant exhibit their bill set forth that Giles Meredith die  seize of certain land above per and in come mon comens er p mouth leave issue  only one son Giles Meredith and three daughter Catherine Cicely and mary since  marry to William Watkins who be the defendant and the plaintiff have marry  mary the only sister and who on failure of issue of the say Giles Meredith the  father be his heir at law that Giles the son enter and die seize in October  that his sister Catherine Cicely and mary be educate in the Popish religion  whereby the plaintiff mary their aunt be the next protestant kin be entitle to  enjoy the rend and profit of the estate by virtue of the statute until the  defendant take the oath and conform that the plaintiff hereon bring a action  of ejectment in the court of common plea in hill term last but Robert another  defendant cause himself to be add a defendant in the say estate and insist on  a mortgage of the say estate make to he by the other defendant for a term of  year for the security of therefore the bill pray a discovery whether Giles  Meredith the father and son do not die seize and when that Robert may discover  whether Catherine Cicely and mary be not educate in the Popish religion and  now profess it and whether they be not of the age of eighteen year and six  month at the death of Giles the son or of what age and whether they have not  refuse or decline the say comens oath and be thereby incapacitate to hold the  say estate whether the plaintiff mary be not the next protestant kin and what  encumbrance he have and that the plaintiff may redeem but at the beginning of  the prayer it ask that all the confederate may answer the premise which  comprehend all repeat in the pray pass as full as if repeat and interrogate  Catherine and Cicely the two unmarried defendant as to such part of the bill  as pray to be let into the possession of two three of the estate or that the  plaintiff may redeem or seek other relief demurrer as to such part as pray  that these defendant shall discover whether the say defendant be educate in  the Popish religion or now profess the same or at the death of Giles Meredith  the son be eighteen year of age and six month or of what age or whether they  have refuse or decline the oath in the statute W c sec and thereby incur the  incapacity of that Act and whether the plaintiff mary be not their next of kin  they plead the statute W c and as to the rest of the bill they answer the  defendant Watkins and his wife put in the like demurrer and plea it be insist  on by Mr Wilbraham and Mr Murray for the defendant that the demurrer and plead  of all the defendant be good and ought to be allow first as to the demurrer by  Catherine and Cicely Meredith the unmarried sister of Giles Meredith the son  it be urge that this be a case wherein equity will not interpose that by the  statute W c in case a person educate in the Popish religion do not take the  oath and subscribe the declaration mention in the Act he be disable to inherit  or take any land and the next protestant of kin may hold and enjoy they  without account for the profit till he do take the oath and subscribe such  declaration so that a severe penalty be put upon the party the forfeiture of  all his land and it be not usual comens for a court of equity to aid a penal  law or enforce it or carry it further than the law will carry it if the  plaintiff have a right to the land they may recover it at law but if they have  no title at law this court will not give they one it be more proper the  business of a court of equity to relieve against a penalty than to assist the  recovery of it second the bill pray that the plaintiff may redeem the mortgage  but they be not entitle to redemption none can redeem but the mortgagor  himself his heir or assignee or some encumbrancer who have a lie upon the  estate a man make a bind to b for money lend and die and his heir assign the  equity of redemption b can redeem till he have obtain judgement upon the bind  against the heir Eq Abr three none can redeem but he who have a right to the  estate in the land but the plaintiff have not the estate in the land that  still remain in the defendant all that the plaintiff can pretend to be a  perception of the profit during the incapacity which be a mere chattel  interest which give no right to the land itself and indeed the defendant have  the right of redemption in they in the case of Lomax and bird vent where the  heir general of the mortgagor prefer a bill to redeem the defendant in his  answer set forth a deed of entail whereby the estate be entail to comens er p  another the plaintiff offer to redeem at his peril but the court will not  permit it unless he can show that the entail be dock fourthly it will  introduce great inconvenience if the plaintiff shall be allow to redeem for  the estate will become irredeemable for the plaintiff stand in the place of  the mortgagor if he be capable to redeem and have the mortgage assign to he  the same person will be both mortgagor and mortgagee and he can not redeem  himself beside the protestant kin will be answerable for waste but as a  mortgagee he can not be sue for waste and who shall pay the interest shall the  plaintiff have the rend and profit and let the interest run in arrear comens  as to the plea it be insist that the defendant be not oblige to discover what  may subject they to a penalty for when a bill pray a discovery of what may be  dangerous to the party discover he may take either method to demurrer or to  plead to that part of the bill in this case the defendant have plead the  statute W c to show that nothing be deny to be answer by the defendant but  what will endanger their incur the penalty inflict by that Act in case a bill  be for a discovery whether the defendant have set forth his great tithe  pursuant to the statute c which subject he to the forfeiture of the Triple  value in case he have not do so the defendant be not oblige to answer unless  the plaintiff waive the penalty and agree to accept the single value only Eq  Abr S c a hard and there in the case of the attorney general vers mico where a  bill be to discover whether the defendant do not conceal the custom and excise  upon cask of currant import and have endeavour to corrupt the customhouse  officer by promise reward to conceal it on a demurrer by the defendant the  court incline to think that he shall not be compel to make a discovery unless  the attorneygeneral wave the proceed for all forfeiture hard on a bill to  discover what waste the defendant have do a demurrer to it be allow bunb Eq  Abr pl b attorneygeneral vers Vincent so on a bill to discover a marriage  where a devise be to the defendant durante widowhood which by her marriage  will be lose the defendant demurrer and the demurrer be allow Monnins and  Monnins Eq Abr pl pl c Charles r in many case act of parliament have by  particular clause provide that the defendant may be put to make discovery of  matter in which they be concern upon their oath comens which seem to admit  that they will not otherways have be liable to make such discovery for if they  have there have be no need of such a provision as by the statute whether c S  it be enact that on a quare hinder bring by the university for the benefice of  any Popish recusant the court may examine the patron or clerk contest the  right of presentment in open court or by commission or affidavit in order to  discover any secret trust fraud or practice relate to such presentation so by  the statute Geo c S which oblige papist to register their estate it be enact  that person sue for penalty may by bill in chancery demand a discovery to  which no plea or demurrer shall be allow and at the sit in chancery after  Trinity term in in the case of smith and read Eq Abr pl pl atk infra p a it be  determine by Lord Hardwicke chancellor that the defendant be not oblige to  discover by answer whether he be a papist or not in that case on the marriage  of mrs pain with Mr smith a settlement be make to the use of the husband and  wife for their life and after to the first and other son of that marriage in  tail remainder to mrs pain in fee who devise it to the defendant and the bill  be to discover if the devisor be not a papist in which case the devise will be  void and on plea to this bill the Lord chancellor hold that the defendant be  not oblige to answer which be a author in point for that be rather strong it  be insist upon that the defendant be not require to answer with respect to  himself but only in respect to the person under who he claim but it be insist  that it be a penal law and that the answer will subject the party to the  penalty as to the case with respect to Jones against Watkins and his wife  there be more comens er p ground for the allowance of the demurrer as well as  of the plea the plea stand upon the same foot with the former but as to the  demurrer beside what be allege for the support of the former demurrer it be  insist that here be no colour for the bill against Watkins and his wife since  here be no title make for the plaintiff to demand the possession or the rend  and profit of that share comens or property of this estate that belong to the  wife of William Watkins who be not allege to be educate in or to profess the  Popish religion and consequent must be intend to be a protestant and if the  say William Watkins be a protestant then the question will be whether if a  papist seize of a estate in fee of land and tenement marry a protestant the  next of kin to the wife can take the possession of the estate out of the hand  of the protestant husband for by the statute W c the papist be disable in  respect of himself only but when a papist marry the husband become seize in  right of his wife and consequent the estate be vest whole in he and he have do  nothing to forfeit it beside the husband may be say to be next of kin to his  wife there be a alliance and affinity betwixt they and the next of kin within  the meaning of this law be not the next of blood or the next in course of  descent and therefore the father may take before the uncle and the brother of  the half blood before the sister of the whole beside the intention of the Act  to prevent the growth of popery be as well answer by the papist marry a  protestant as by sell the estate to a protestant for such marriage may be a  mean of bring over the family to the protestant religion in answer it be urge  by Mr Bunbury and Mr Bootle that if the demurrer in this case be allow the Act  of parliament will be elude for every papist will mortgage his estate and the  protestant kin will be defeat without remedy the demurrer be to the whole  relief pray and sure the next of kin may redeem he be a kind of purchaser  under the Act and stand in the place of the heir and though it be say to be a  penal law yet the bill be not to obtain a penalty but to be relieve against a  fraud in set up this mortgage comens a bill by the next protestant kin to  account for the rend and profit be allow in the case of winter vers bermingham  Mod Eq Abr pl SC a as to the plea that be ill for the bill do not pray that  they shall discover whether papist or not but that the other defendant Robert  shall do so beside it go to the discovery which sure they may be ask as to the  demurrer by Watkins and his wife her disability be not remove by her marriage  nor be the husband sole seize the plead be the husband and wife be seize in  right of the wife beside the demurrer confess all allege by the bill and go to  the whole relief which be not proper to be determine on a demurrer this matter  arise upon a new law the court take time to consider it and in Michaelmas term  on Saturday November now baron Thompson be dead the other three baron agree in  opinion that the demurrer by the defendant Meredith ought to be overrule and  at the desire of the other I deliver the opinion of the court to this effect  that the demurrer be have as to such part of the bill as seek to be let into  possession of two three of the estate in the bill to be permit to have and  enjoy and be quiet in the possession thereof by the injunction of the court or  seek to redeem the mortgage mention or any other relief now it be plane and  agree by the counsel for the defendant that the demurrer be entire if it be  faulty in any part it ought to be overrule it be so at law if the defendant  demurrer to the whole declaration or the plaintiff to a avowry in a  replication for rend of which part appear not yet due the plaintiff or avowant  shall have judgement to recover for such part as be well demand or appear to  be due I sand resolve sand it be the same in equity and the reason be obvious  for the comens demurrer be a stop to the plaintiff demand of every thing to  which it extend but it will be unreasonable to refuse the aid to which he be  in conscience entitle because he ask something more comens er p perhaps it be  improper for the plaintiff to pray that the court shall let he into the  possession of the estate for that he must recover at law but there be other  thing wherein it may be proper that the plaintiff shall ask the assistance of  the court the bill suggest that the plaintiff have bring a action of ejectment  but the defendant by make a mortgage to Robert and make he a defendant render  it impossible for they to recover at law and they pray that it may be set  aside or if make good fide that on payment of what be due they may be admit to  redeem in respect to which the court may probable give relief but the demurrer  be against all relief but it be object that in case the plaintiff as the next  protestant kin may have the rend and profit by virtue of the statute W c yet  they have only the bare perception of the profit and no estate in they for the  legal estate remain in the Popish heir who may sell devise or transmit it to  his posterity and consequent that the protestant kin can have no title to  redeem it be true the word of the statute be that every such person educate in  the Popish religion or profess it shall in respect of himself only and not in  respect of his heir or posterity be disable to take c the seize of the estate  have be construe to remain still in he for otherwise it will be difficult to  say how his heir can have the estate consistent with the know rule of law so  it Vas hold in Tredways case hob jenk S c a lie S c upon the statute I James c  which be pen in the same manner and therefore a papist tenant in tail may make  a tenant to the praecipe and suffer a common recovery as be resolve in the  case of Thornby above p Str a and Fleetwood whether and in Lord derwentwater  Mod Eq Abr pl S c b case Geo so he may devise the estate to a protestant  resolve in c b in easter term in in the case of Matlem above p Eq Abr pl c  vers Bingloe and in the case of Marribod and Dorrell h Geo in b r comens but  yet the next protestant kin after his entry have a estate and interest which  enable he not only to receive the rend and profit but likewise to lease the  land during his title otherwise he can not maintain a ejectment and if he have  such a interest that he may lease sure he may likewise redeem a former  mortgage as well as a lessee for year may do so a copyholder be not seize of  the estate the seize of the freehold remain in the lord of the manor yet as a  copyholder may make a lease whereon a ejectment be maintainable   so he may  redeem a mortgage make of the copyhold estate a tenant by statutestaple  statutemerchant or elegit have but a chattel interest until what time debit  alleviate to be yet daily experience show that he be admit to redeem it be say  indeed that a protestant kin be a mere pernor of the profit and therefore can  redeem but why No authority be cite for it in chudleighs case   it be say that  a pernor of the profit be in nature of a beneficiary and use at commonlaw but  none I believe will deny but that a beneficiary and use may exhibit a bill in  equity to have the trust execute and to redeem a mortgage make by the trustee  with his assent bro title conscience it be urge further that none can redeem  but be who be heir assignee or encumbrancer and this be the general  description of those who be entitle to a equity of redemption but it be  certain that there be no necessity that a man shall come in for a valuable  consideration in order to entitle he to redemption for a person who claim by a  voluntary settlement may redeem Eq Abr and so it be resolve can Ch comens if a  man make a voluntary conveyance and afterward mortgage though such mortgagee  may avoid the conveyance as fraudulent to he yet it suffice to pass the equity  of redemption indeed general he who redeem must be the mortgagor or somebody  who claim under he but it be not requisite that he shall claim by express  assignment from he a tenant in dower or by the courtesy may redeem who estate  be create by the law and he who have a estate or interest give by Act of  parliament have as much reason to have this benefit as he who come in by the  act of the party every comens er p one be party to a Act of parliament and  there seem to be no reason why the person entitle b virtue of a Act of  parliament shall not have equal advantage in a court of equity with the  assignee of the party the assignee of commissioner of bankrupt may redeem as  well as the bankrupt himself d b I can Freem Eq Abr pl l a Ch the only ground  for redemption seem to be the have a interest in or lie upon the land be who  have such a interest or lie may redeem he who have none can and therefore if a  man make a bind wherein he bind himself and his heir and afterward mortgage  his land the obligee by judgement can redeem but if he obtain judgement  against the heir of the obligor although the heir have before assign his  equity of redemption the obligee who gain thereby a lie upon the estate of the  obligor against his consent for judgment To give back in reluctant and sole by  the operation and act of law be entitle to redeem Bateman and Bateman Eq Abr  nay if be gain but a equitable lie upon the land it be sufficient and  therefore if a man article on his marriage to make a marriage settlement and  afterward mortgage his estate to one who have no notice of the article the  wife shall comens redeem for the article for a purchase be consider in equity  as a purchase vent Eq Abr pl pl a so if a man agree at his marriage to leave  his wife worth I and it be leave to the parson of the parish to draw the  agreement who take a bind for the payment of the money and then the obligor  die leave his estate freehold and copyhold in mortgage the wife have a equity  upon the land by virtue of the agreement on the marriage be allow to redeem  Acton and pierce vern but against the plaintiff have the liberty of redemption  it be further argue that of court of equity ought not to aid or assist the  execution of a penal law and it be certain that it be not in the power of a  court of equity to extend a penal law beyond what the law itself import or the  court of law will extend it nor be it proper for a court of equity to assist  the recovery of a penalty or forfeiture when the party may proceed at law to  recover it therefore there be no reason to apprehend that the court will in  this case put the plaintiff into possession if the law will not do it or give  they any advantage beyond what the law intend they but if the defendant by  contrivance set up a mortgage which render their proceed at law impracticable  it may be fit for a court of equity so far to interpose as to prevent these  unfair measure which be design to elude the benefit of the law if a lessee  commit waste the court will not oblige he to discover the wrong he have do  which may subject he to a penalty or construe that to be waste which the law  will not call so but will stay his go on in the destruction be be make till it  be see whether he have any right to do so or not it be say Eq Abr vern Prec Ch  S c a that if a trustee by fraud and combination with beneficiary and trust  endeavour to evade a penal law under a pretence that equity shall not assist a  penalty or forfeiture chancery will aid and not suffer its own maxim to be  make use of to elude a beneficial law comens it be say that if the mortgage be  without any real consideration it will be a trust for the papist and  consequent void at law but I doubt that be not so for by what have be say it  appear that a papist have such a estate in he that be may alien and demise and  consequent the estate grant to Robert will pass a interest to he though make  without a valuable consideration which will be a title prior to the demise by  the lessor of the plaintiff in ejectment as to the inconvenience which may  ensue from the plaintiff be allow to redeem I see no great than what may be  suppose in a redemption by a dowress or other person who have but a particular  estate or interest it may be say that he be mortgagor and mortgagee if he take  the assignment of the mortgage to himself and as for his be dispunishable for  waste he be liable to answer Triple damage for any voluntary waste in a action  of debt in short the plaintiff may have many occasion for the aid of a court  of equity and therefore since the demurrer be general to all relief since such  a practice of set up a mortgage to prevent the protestant kin from recover if  he can have no relief will entire defeat the design of the Act we be of  opinion that the demurrer ought to be overrule comens er p as to the plea we  all agree that it ought to be allow for the discovery to which this plea be  plead tend direct to make the defendant accuse themselves of those offence  which may subject they to the penalty and incapacity of the Act it be the  excellent temper of the English law that nobody be compellable to accuse  himself no one holding he himself to call to account this have be determine  not only in court of law and equity but in parliament comens it be true that  by a constitution of cardinal Otho the pope legate h it be order quod jurament  charge in cause ecclesiast civilib de in point of fact to say in spiritualib  quo veritas easily to uncover to debet de the other in royal power England con  in opposite direction non to stand before but this be allow only in cause  matrimonial and testamentary Inst and by the statute car c sec no  ecclesiastical judge can tender oath whereby any person may be charge to  accuse himself or subject himself to censure or punishment c but the case of  smith vers read be a direct determination in point or this be rather a strong  case where the defendant be ask as to their own education in the Popish  religion there they be interrogate only as to the person under who the  defendant claim what be say that Robert be ask whether they be not bring up in  the Popish religion be a mere evasion for though Robert the other defendant be  ask these question yet all the defendant be charge with be so educate and all  be desire to answer the matter as full as if the same be particular repeat and  interrogate it be say that the defendant may be ask of what age they be but  the charge be that they be of the age of year and six month whereby they be  incapacitate to hold the estate so that the enquiry about their age be only  with a design to subject they to that incapacity and the plea be word with  like caution as to the demurrer and plea of Watkins and his wife the same  stand upon somewhat a different foot it be not charge by the bill that Watkins  the husband be a papist and consequent it must be intend that he be a  protestant for every one must be presume to be of the establish religion till  the contrary appear then the question will be whether if a papist marry a  husband who be a protestant the next of kin who be a protestant to her before  her marriage shall take comens the rend and profit of her estate from the  husband during coverture the statute say that the person educate in the Popish  religion shall be disable to take and bold any land c but the husband be not  so educate and consequent not disable to take and bold they as by law he be  entitle to do it be right observe that the plead be that the husband and wife  be seize in right of the wife whence it be infer that both be seize the  protestant kin will be entitle to have and enjoy the land of which the wife be  still seize after her marriage but that inference be not to be draw from the  form of plead for it be true that the wife have a joint seize with the husband  of the freehold and inheritance which the husband therefore can dispose of  without her but the husband alone have the title to the rend and profit and  may dispose of the possession during the coverture without the wife a writ of  entry sur seize be bring against husband and wife who plead nontenure the  demandant reply that a be seize till seize by husband and wife who make a  feoff to person unknown but the husband and wife continue to receive the  profit but the replication be disallow for the pernancy of the profit be but a  chattel can be only in the husband bro title Parnor de profit if a feme lease  dumb sola and marry and the lessee pay his rend to the wife though no notice  of the marriage be allege the payment be ill and the husband have judgement in  debt for the rend cro James SC I Str Com dig title baron and feme X a pal  Tracy and Dutton so the husband may sue alone for rend for not repair c or  other profit or benefit to the estate of the wife and though be may be need  not join his wife cro car comens now here the pernors of the profit demand the  rend and profit from the comens er p husband who be legal pernor of they and  the design of the Act seem as well answer by the husband take they as any  other but the court need not give any positive opinion on this point because  the demurrer be general as to all relief and it be possible that the court may  find it needful to give some sort of relief with respect to these defendant  also and therefore the court think fit that this demurrer as well as the other  by Meredith be overrule but the plea ought to be allow