66

upon a bill filed in chancery by a child of a popish parent, professing or desirous to profess the protestant religion, against such parert, that court may make such order for the "maintenance of such child, not maintained by such parent "suitable to the degree and ability of such parent and age “such child, and also for the portion of such child, to be paid "at the death of such parent as the court shall judge fit, suitable "to the degree and ability of such parent."

of

"But if any papist buys or purchases lands, tenements or hereditaments, or in such manor or borough from any protestant, or any leases or terms thereof, other than for the beforementioned term of 999* years or other number of years determinable on five lives, such lands, tenements and hereditaments, so conveyed or leased, and all collateral securities made or entered into to cover or make good the same are discoverable, and may be sued for and recovered by a protestant discoverer.

"This discoverer so vested with this property is enabled to find it out by every mode of inquisition, and to sue for it with every kind of privilege, not only the courts of law are open to him, but he may enter, and this is the usual method, into either of the courts of equity; he may bring bills against the parties, whom he suspects to be possessed of this forbidden property, against those whom he suspects to be their trustees, and against those whom he suspects to be privy to the transaction, and oblige them, upon oath, under the guilt and penalties of perjury, to disclose the exact nature, and just value of their estates and trusts in all the particulars, in order to effect their forfeiture. In such suits, the informer is not liable to the delays which the ordinary procedure of those courts throws into the way of the most equitable claimant, nor has the papist the indulgence

* A lease for a term of years is not a freehold, and does not confer the right of suffrage.

indulgence which they allow to the most fraudulent defendant, that of plea and demurrer; the defendant is obliged to answer the whole directly upon oath, and the old rule of "extending benefit and restraining penalty" is by this law struck out of the Irish jurisprudence, and the contrary rule is established, directing that, upon all doubts these penal laws should be construed in the largest and the most liberal sense against the defendant.

·

"Until the 2d May, 1782, papists were incapable to purchase from protestant or papist, any rents or profits out of, or'annuity chargeable on any lands, tenements or hereditaments, and at this day no papist is capable to buy or purchase from protestant or papist any rents or profits out of lands, tenements or hereditaments in such manor or borough, or take any annuity, chargeable on such lands, tenements or hereditaments ;-and all securities whatsoever for the securing of any such annuity are void, and any judgment had on such annuity, so far as such judgment may effect such lands, is also void.

"In respect to the leases taken by papists under the powers granted by the 17th and 18th Geo. 3. ch. 40, it is to be observed, that those leases, if taken at any time within the first August and first November, 1778, were liable to be charged with maintenance and portion for the children of a popish parent possessed of the same, if a bill grounded on the 2d Anne, ch. 6, was filed for that purpose before the 1st November, 1778; but if no such bill was filed before the 1st November, 1778, such leases so previously taken and in the actual possession of the papist on that day, ceased to be liable to such charges. It must also be observed as to those leases taken by papists under the powers granted by the 17th and 18th Geo. 3, ch. 49, that if taken at any time after the 1st November, 1778, and before the 2d May, 1782, (or since, if of lands in such before mentioned manors or boroughs) they were and do now continue to

be liable to be charged with such maintenance and portion-As to leases of any lands, tenements, or hereditaments, (save in such before mentioned manors or boroughs) taken by papists after the 1st May, 1782, they are within the provision of the statute of the 21st and 22d Geo. 3. ch. 24, "which enables papists, upon making as aforesaid the oath and declaration before mentioned, to take and dispose of lands, tenements and hereditaments, and any interest therein as fully and beneficially as other subjects may," and are, therefore, not liable to such 'charges.

"To conclude our observations on the subject of real property, we have only to take notice, that the law directs that debts and incumbrances affecting the real estates of papists shall, within six months, be enrolled in the court of exchequer, in some public office belonging to and appointed by such court for that purpose, and that in default of such enrollment, such debts and incumbrances shall not charge the lands in the hands of a protestant.-The auditor-general's office is the place appointed for that purpose by the court of exchequer.-The intent of this law was to prevent pocket incumbrances only-judgments are of sufficient notoriety, and, it is decided, that they are not within the view of the legislature, and that copies of them need not be enrolled in the auditor-general's office.

ACQUISITION OF PROPERTY.

Whatever effect the relaxing laws may have had upon real estates and chattels real, the goods and personal chattels have not been effected by those laws in any respect, save that no maintenance or portion can be granted out of such property to any child of a popish parent upon a bill filed against such parent pursuant to the 2d Anne, ch. 6; in other respects, the penalties of

the

the law affecting such property, remain as they did before the relaxing laws were passed.

"If the wife of a papist conforms in his life time, she shall, if she survives him and be unprovided for by dower or by some settlement on his real estate, receive such proportion of the goods and personal chattels whereof he shall die possessed or intitled unto as the conrt of chancery, on a bill to be preferred by her, grounded on the 8th Anne, ch. 3. may think reasonable, not exceeding one third part after debts and funeral expences, notwithstanding any will or voluntary disposition by him to the contrary, or the statute of distributions.-The legislature, in this instance, has presumed that the husband omitted to make provision, for no other reason than that of her religion.-If, therefore, a wife chooses to balance any domestic misdemeanors to her husband by the public merit of conformity to the protestant religion, the law will suffer no proofs of such misdemeanors to be brought to invalidate its presumption; she acquires a provision totally independent of the favour of her husband, and this in a great degree deprives him of that source of domestic authority which the common law has left in families, that of rewarding or punishing, by a voluntary distribution of his effects, what in the opinion of the husband was the good or ill behaviour of his wife, And yet it is to be observed that though the law meant a favour to the conforming wife, yet by a strange inaccuracy, in repealing as to her the provisions of the statute of distributions, it has deprived her of an advantage to which she would have been intitled under that statute in case her husband died intestate and without issue; as in such case, by that statute she would be intitled, as against his collateral relations, to a moiety of the clear surplus of his personal estate, after payment of debts and funeral

expences,

"The child of a papist, on conforming to the protestant religion, may file a bill in chancery, grounded on the statute of the

may,

8th Anne, ch. 3, against the parent, and compel such parent, by the process of that court, to confess, upon oath, the quantity and value of the goods and personal chattels of such parent over and above debts contracted bonâ fide for valuable consideration before the conformity.-Upon this conformity, the court is em powered to seize upon and allocate for the immediate maintenance of such child, any sum not exceeding one third of the said goods and personal chatiels.—This third, as we said, for immediate maintenance, but as to future establishment upon the death of the parent, no limits whatsoever are assigned by the statute; the chancellor if he thinks fit, take the whole of such property, money, stock in trade or agriculture, out of the hands of the possessor, and secure it in any manner he may think expedient for that purpose, the act not having any sort of limit with regard to the quantity of such property which is to be so charged, nor having given any sort of direction concerning the means of charging or securing it.--But the policy of the legislature was not yet. exhausted, because there was a possibility that the parent, though sworn and otherwise compellable, might by false representations evade the discovery of the ultimate value of such property on the first bill; new bills may be brought at any time, by any, or by all the children for a further discovery. Such property of the parent is to undergo a fresh scrutiny, and in consequence of this scrutiny a new distribution is to be made; the parent can have no security against the vexation of reiterated chancery suits, and continual dissection of such his property, but by doing what must be confessed is somewhat difficult to human feelings, by fully and without reserve abandoning such property (which may be his whole,) to be disposed of at the discretion of such a court, in favour of such children.-Is this enough, and has the parent purchased his repose by the total surrender for once of such effects? Very far from it; the law very expressly and carefully provides that he shall not; for as in the former case, a concealment of any part of such effects is made the equitable ground of a new billso here any encrease of them is made a second ground of equity;

for