a brief report of a case argue by the sergeant in the CommonBench before the  justice there in Hillary and easter term in the three year of the reign of  queen Elizabeth and by the say justice in Trinity term in the four year of the  reign of the say queen upon a ejection strong bring by henry WILLION against  henry Berkeley knight lord Berkeley and richard knight and the record be as  follow easter term Elizabeth rot Hertford declaration same precedent raze Entr  a pl heretofore as appear in the term of saint Michael in the five and six  year of the reign of the Lord Philip and lady mary late king and queen of  England rot it be contain thus Hertford to wit Henry Berkley knight vide   a  Lord Berkley and Richard knight of Plowden er p Weston in the county aforesaid  yeoman be attach to answer Henry Willion of a plea wherefore with force and  arm into seven acre of wood with the appurtenance in Weston which Henry cock  esquire demise to he for a term not yet pass they enter and the say Henry  Willion from his farm aforesaid eject and other wrong to he do to the great  damage of the say Henry Willion and against the peace of the lord the king and  lady the queen now c and whereupon the same Henry Willion by Thomas Hanchet  his attorney complain that whereas the aforesaid Henry cock be of the  aforesaid seven acre of wood with the appurtenance seize in his demesne as of  fee and be so seize thereof the same Henry the five day of may in the four and  five year of the lord the king and lady the queen now at hoddesden in the say  county of Hertford have deliver grant and to farm let to the same Henry  Willion the aforesaid seven acre of wood with the appurtenance to have to the  same Henry Willion unto the end and term of seven year from thence next follow  and full to be complete and the same Henry Willion of the aforesaid seven acre  of wood with the appurtenance by virtue of the grant and demise aforesaid be  possess and the same seven acre occupy until the aforesaid Henry Berkley and  Richard knight the six day of may in the year abovesaid with force and arm  videlicet sword staff and knife into the aforesaid seven acre of wood with the  appurtenance enter and the say Henry Willion from his farm aforesaid eject and  other wrong c to the great damage c and against the peace c wherefore he say  that he be damnified and have damage to the value of pound and therefore he  produce the suit c bar and the aforesaid Henry Berkley and Richard by John  bill their attorney come and defend the force and injury when c and pray leave  to imparl thereon here until the octave of saint Hillary and they have c the  same day be give to the aforesaid Henry Willion here c at which day here come  as well the aforesaid Henry Willion as the aforesaid Henry Berkley and Richard  by their atorneys aforesaid and thereupon the same Henry Berkley and Richard  further pray leave to imparl thereon here until from the day of easter in  fifteen day and they have c the same day be give to the aforesaid Henry  Willion here c and now here at this day come as well the aforesaid Henry  Willion by his attorney aforesaid as the aforesaid Henry Berkley and Richard  by John Comber their attorney and the same Henry and Richard as to the come  with force and arm say that they be not guilty thereof and of this they put  themselves upon Plowden the country and the aforesaid Henry Willion likewise  and as to the rest of the trespass and ejectment aforesaid above suppose to be  do the same Henry Berkley and Richard say that the aforesaid Henry Willion his  action aforesaid against they ought not to have because they say that on  before the aforesaid time when the trespass and ejectment aforesaid be suppose  to be do one William marquis Berkley be seize of the manor of Weston near  Baldock in the aforesaid county of Hertford whereof the aforesaid seven acre  of wood with the appurtenance be and at the aforesaid time when c and also  from time whereof the memory of man be not to the contrary be parcel in his  demesne as of fee and be so seize thereof a certain fine levy in the court of  Lord Henry the seven late king of England here videlicet at Westminster on the  octave of the purification of the bless mary in the five year of his reign  before Thomas Brian Roger townsend William davers and John vavisor justice and  other faithful subject of the say late king Henry the seven then there present  between one William Willoughby esquire and John skill complainant and the  aforesaid marquis deforceant of the manor aforesaid with the appurtenance  whereof c by the name of the manor of Weston near Baldock with the  appurtenance in the county of Hertford among other thing c whereof a plea of  covenant be summon between they in the same court of the same late king Henry  the seven videlicet that the aforesaid marquis acknowledge the manor aforesaid  with the appurtenance among other thing to be the right of the say Edward as  that which the say Edward and John have of the gift of the aforesaid marquis  and the same release and quitclaim from himself and his heir to the aforesaid  Edward and John skill and to the heir of the same Edward for ever and further  the same marquis by the same fine grant for himself and his heir that the that  will warrant to the aforesaid Edward and John and to the heir of the same  Edward the manor aforesaid with the appurtenance Plowden er p whereof c among  other thing against all man for ever and for the say acknowledgement remise  quitclaim warranty fine and agreement the same Edward and John by the same  fine grant to the aforesaid marquis the manor aforesaid with the appurtenance  whereof c among other thing and the same to he render in the same court to  have and to hold to the same marquis and to the heir of his body beget to hold  of the chief lord of the fee by the service which to the aforesaid manor shall  belong for ever and if it shall happen that the same marquis shall die without  heir of his body beget then after the death of the say late marquis the manor  aforesaid with the appurtenance whereof c among other thing shall whole remain  to the aforesaid late king Henry the seven and to the heir male of his body  lawful beget and if it shall happen that the same late king shall die without  heir male of his body beget then after the death of the say late king Henry  the seven the manor aforesaid with the appurtenance whereof c among other  thing shall whole remain to the right heir of the say late marquis to hold of  the chief lord of the fee by the service which to the aforesaid manor belong  for ever note here the fine plead without any conclusion of prout to stand  open c see Leon by reason of which say fine the aforesaid marquis be of and in  the manor aforesaid with the appurtenance whereof c among other thing seize in  his demesne as of feetail videlicet to he and to the heir of his body beget  remainder thereof to the aforesaid late king Henry the seven and to the heir  male of his body beget and for default of such issue remainder thereof to the  right heir of the aforesaid late marquis for ever and the aforesaid marquis of  the manor aforesaid with the appurtenance whereof c among other thing be seize  in his demesne as of feetail in form aforesaid the same late marquis of such  his estate therein before the aforesaid time when c die by protestation seize  without heir of his body beget after who death the same late king Henry the  seven into the manor aforesaid with the appurtenance whereof c as in his  remainder thereof before the same time when c enter and be thereof seize in  his demesne as of feetail videlicet to he and to the heir male of his body  issue remainder thereof for default of such issue to the right heir of the  aforesaid late marquis by virtue of the fine aforesaid and be so seize thereof  of such his estate therein he afterward die seize after who death and before  the aforesaid time when c the manor aforesaid with the appurtenance whereof c  among other thing descend to the late king Henry the eight as son and heir  male of the body of the say late king Henry the seven lawful beget whereby the  same late king Henry the eight into the manor aforesaid with the appurtenance  whereof c among other thing before the same time when c enter and be thereof  seize in his demesne as of feetail videlicet to he and to the heir male of his  body issue and for default of such issue and for default of heir male of the  body of the aforesaid late king Henry the seven lawful beget remainder thereof  to the right heir of the aforesaid late marquis by virtue of the fine  aforesaid and be so seize thereof the same late king Henry the eight die by  protestation thereof seize after who death and before the aforesaid time when  c the manor aforesaid with the appurtenance whereof c among other thing  descend to Edward the six late king of England as son and heir male of the  body of the same late king Henry the eight lawful beget whereby the same late  king Edward the six into the manor aforesaid with the appurtenance whereof c  among other thing before the aforesaid time when c enter and be thereof seize  in his demesne as of feetail videlicet to he and to the heir male of his body  issue and for default of such issue and for default of heir male of the body  of the aforesaid late king Henry the seven lawful beget remainder thereof to  the right heir of the aforesaid late marquis accord to the form of the fine  aforesaid and afterward before the aforesaid time when c the same late king  Edward Plowden of such his estate in the manor aforesaid with the appurtenance  whereof c among other thing die seize without heir male of his body issue and  the aforesaid late king Henry the seven before the same time when c die  without heir male of his body lawful beget by reason whereof Plowden er p the  manor aforesaid with the appurtenance whereof c among other thing remain and  come and of right on light to remain and come by form of the fine aforesaid to  the aforesaid Henry Berkley and to his heir as cousin and next heir of the  aforesaid William late marquis Berkley videlicet as son and heir of Thomas  late Lord Berkley son and heir of Thomas Berkley knight late Lord Berkley  brother and heir of morris Berkley knight son and heir of morris Berkley  knight brother and heir of the aforesaid William late marquis Berkley by  reason of which say premise the same Henry Lord Berkley the eleven day of  August in the first year of the reign of the aforesaid lady the queen into the  aforesaid manor with the appurtenance whereof c enter as in his remainder as  it be lawful for he to do and be thereof seize in his demesne as of fee until  the aforesaid Henry cock into the aforesaid seven acre of wood with the  appurtenance before the aforesaid time when c enter and the same to the say  Henry Willion deliver and demise for the term aforesaid as the aforesaid Henry  Willion by his writ and declaration aforesaid above suppose upon the  possession of which say Henry Willion thereof the aforesaid Henry Berkley in  his own proper right and the aforesaid Richard as servant of the say Henry  Berkley and by his command the aforesaid time when c enter and the aforesaid  Henry Willion from his farm aforesaid eject as it be lawful for they to do and  this they be ready to verify wherefore they pray judgement if the aforesaid  Henry Willion his action aforesaid against they ought to have c replication  and the aforesaid Henry Willion say that by any thing before allege he ought  not to be preclude from have his action aforesaid because he say that well and  true it be that the aforesaid William marquis Berkley be seize of the  aforesaid manor of Weston near Baldock with the appurtenance whereof c among  other thing in his demesne as of fee and he be so seize thereof the aforesaid  fine levy in the aforesaid court of the late king Henry the seven here  videlicet at Westminster on the octave of the purification of the bless mary  in the five year of his reign before the aforesaid Thomas Brian Roger townsend  William davers and John vavisor then justice and other faithful subject of the  say late king Henry the seven then there present between the aforesaid Edward  Willoughby esquire and John skill complainant and the aforesaid marquis  deforceant of the aforesaid manor with the appurtenance whereof c by the name  of the manor of Weston near Baldock with the appurtenance in the county of  Hertford among other thing c whereof a plea of covenant be summon between they  in the same court of the say late king Henry the seven videlicet that the  aforesaid marquis acknowledge the manor aforesaid with the appurtenance  whereof c among other thing to be the right of the say Edward as that which  the say Edward and John have of the gift of the aforesaid marquis and the same  release and quit claim from himself and his heir to the aforesaid Edward and  John skill and to the heir of the say Edward for ever and further that the  same marquis by the same fine grant for himself and his heir that they will  warrant to the aforesaid Edward and John and to the heir of the same Edward  the manor aforesaid with the appurtenance whereof c among other thing against  all man for ever and for the same acknowledgement remise quitclaim warranty  fin and agreement the same Edward and John by the same fine grant to the  aforesaid marquis the aforesaid manor with the appurtenance whereof c among  other thing and the same render to he in the same court of the aforesaid late  king Henry the seven to have and to hold to the same marquis and to the heir  of his body lawful beget to hold of the chief lord of the fee by the service  which to the say manor belong for ever and if it shall happen that the same  marquis shall die without heir of his body beget then after the death of the  say late marquis the manor aforesaid with the appurtenance whereof c among  other thing shall whole remain to the aforesaid late king Henry the seven and  to the heir male of his body lawful beget and if it shall happen that the same  late king Henry the seven shall die without heir male of his body beget then  after the death of the same late king Henry the seven the manor aforesaid with  the appurtenance whereof c among other thing shall whole remain to the right  heir of the say late marquis to hold of the chief lord of the fee by the  service which to the aforesaid manor belong for ever as by the same fine  appear Plowden er p and that by reason of the fine aforesaid the aforesaid  marquis be of the manor aforesaid with the appurtenance whereof c among other  thing seize in his demesne as of feetail the remainder thereof to the  aforesaid late king Henry the seven and to the heir male of his body lawful  beget in form aforesaid belong as the aforesaid Henry Berkley and Richard have  above allege and the same marquis be so seize thereof before the aforesaid  time of the trespass and ejectment aforesaid do of such his estate therein  afterward die seize without heir of his body beget after who death and before  the aforesaid time of the trespass and ejectment aforesaid do the aforesaid  late king Henry the seven then have issue of his body lawful beget videlicet  one Arthur late prince of Wales into the manor aforesaid with the appurtenance  whereof c among other thing as in his remainder aforesaid enter and be thereof  seize in his demesne as of fee by reason of the fine aforesaid by form c and  afterward the aforesaid prince Arthur die without heir male of his body lawful  beget and the same late king Henry the seven be so seize in manner and form  aforesaid of the manor aforesaid with the appurtenance whereof c the same late  king of such estate in the same manor with the appurtenance whereof c among  other thing afterward die seize Plowden after who death the manor aforesaid  with the appurtenance whereof c descend to the aforesaid Lord Henry the eight  late king of England as son and heir of the aforesaid late king Henry the  seven whereby the same late king Henry the eight before the aforesaid time of  the trespass and ejectment aforesaid do into the aforesaid manor with the  appurtenance whereof c enter and be thereof seize in his demesne as of fee by  reason of the fine aforesaid and the same late king Henry the eight be so  seize thereof take to wife one lady Catherine Latimer and afterward and before  the aforesaid time of the trespass and ejectment aforesaid do by a certain Act  make in a parliament of the aforesaid late king Henry the eight begin at  Westminster the fourteenth day of January in the thirtyfifth year of the reign  of the same late king Henry the eight and there hold and continue until the  twentyninth day of march in the say thirtyfifth year among other thing it be  ordain and enact that all demise release gift grant obligation recognizance  patent fee acquittance and other thing from thenceforth to be make by the say  lady Catherine or to the same lady Catherine by or to the say late king Henry  the eight or by or to any other person or person shall stand and be of the  same force and effect in law as they shall if they be make by to or between  any other subject of the say late king Henry the eight without any interest  profit or benefit to come or accrue by any mean to the say late king Henry the  eight his heir executor or successor of for or in a of the premise or by  reason or occasion of the same or of any part thereof or otherwise as in the  same Act among other thing be more full contain and that afterward and before  the aforesaid time of the trespass and ejectment aforesaid do the aforesaid  late king Henry the eight by his letterspatent seal under his great seal of  England bear date the that day of February in the that year of his reign give  and grant the aforesaid manor of Weston with the appurtenance whereof the  aforesaid seven acre of wood with the appurtenance be and from time whereof  the memory of man be not to the contrary be parcel to the aforesaid lady  Catherine then his wife and queen of England to have and to hold to her for  term of life of her the say lady Catherine by reason of which say gift grant  and Act of parliament the same lady queen Catherine be of the aforesaid manor  with the appurtenance whereof c seize in her demesne as of freehold the  reversion thereof belong to the aforesaid late king Henry the eight and to his  heir and the same lady Catherine be so seize thereof the reversion thereof in  form aforesaid belong to the aforesaid late king Henry the eight and to his  heir the aforesaid late king Henry the eight before the aforesaid time of the  trespass and ejectment aforesaid do at Westminster in the county of Middlesex  die after who death and before the aforesaid time when c the same reversion of  the aforesaid manor with the appurtenance whereof c descend to Lord Edward the  six late king of England as son and heir of the aforesaid late king Henry the  eight whereby the same late king Edward the six be of the reversion aforesaid  seize as of fee Plowden er p and the same late king Edward the six be so seize  thereof before the aforesaid time of the trespass and ejectment aforesaid do  the same late king by his letterspatent seal under his great seal of England  bear date at Westminster the ten day of July in the first year of the reign of  the say late king Edward the six which the same Henry Willion here produce in  court give and grant the aforesaid reversion of the say manor of Weston with  the appurtenance whereof c to one William Herbert knight now earl of Pembroke  to have and to hold to the same earl and to his heir for ever by virtue of  which say grant the same earl be of the same reversion seize as of fee and  right and be so seize thereof and the aforesaid lady queen Catherine be in  form aforesaid seize of the same manor with the appurtenance whereof c the  same lady Catherine late queen afterward at sue in the county of Gloucester  die after who death and before the aforesaid time of the trespass and  ejectment aforesaid do the aforesaid earl into the aforesaid manor with the  appurtenance whereof c enter and be thereof seize in his demesne as of fee and  the same earl be so seize thereof before the aforesaid time of the trespass  and ejectment aforesaid do of the same manor with the appurtenance whereof c  feoff the aforesaid Henry cock to have and to hold to he and to his heir for  ever by virtue of which feoff the same Henry cock into the aforesaid manor  with the appurtenance whereof c before the aforesaid time of the trespass and  ejectment aforesaid do enter and be thereof seize in his demesne as of fee and  the same Henry cock be so seize thereof before the aforesaid time of the  trespass and ejectment aforesaid do videlicet the aforesaid five day of may in  the four and five year of the reign of the say Lord Philip and lady mary late  king and queen of England at Hoddesdon aforesaid in the aforesaid county of  Hertford demise the aforesaid seven acre of wood with the appurtenance to the  same Henry Willion to have and to hold to the same Henry Willion from the say  five day of may in the four and five year abovesaid unto the end and term of  seven year thence next follow and full to be complete by virtue of which  demise the same Henry Willion into the aforesaid seven acre of wood with the  appurtenance before the aforesaid time of the trespass and ejectment aforesaid  do enter and be thereof possess until the aforesaid Henry Lord Berkley and  Richard the aforesaid six day of may in the four and five year abovesaid with  force and arm videlicet sword staff and knife into the aforesaid seven acre of  wood with the appurtenance enter and the say Henry Willion from his farm  aforesaid thereof eject against the peace of the aforesaid late king and queen  Philip and mary as he above complain against they and this he be ready to  verify wherefore for that the aforesaid Henry that Berkley and Richard the  trespass and ejectment aforesaid above confess the same Henry Willion pray  judgement and his damage by occasion of the say trespass and ejectment to be  adjudge to he c Plowden defendant demurrer and the aforesaid Henry Lord  Berkley and Richard say that the aforesaid plea of the aforesaid Henry Willion  in manner and form above in reply plead and the matter in the same plea  contain be insufficient in law to maintain the aforesaid Henry Willion to have  his action aforesaid against the same Henry Berkley and Richard and that they  have no necessity nor be by the law of the land bind to answer the say  replication in manner and form aforesaid plead and this they be ready to  verify wherefore for want of a sufficient replication in this behalf the same  Henry Lord Berkley and Richard pray judgement and that the aforesaid Henry  Willion may be preclude from have his action aforesaid against they c joinder  in demurrerAnd the aforesaid Henry Willion for that he have above allege  sufficient matter against the say Henry Lord Berkley and Richard in  maintenance of the action of he the aforesaid Henry Willion against they which  say matter the aforesaid Henry Berkley and Richard do not deny nor thereunto  in anywise answer but the say averment whole refuse to admit pray judgement  and his damage by occasion of the trespass and ejectment aforesaid to be  adjudge to he c and because the justice here will advice of and upon the  premise before they give judgement thereon day be give to the party aforesaid  here on the morrow of the holy Trinity to hear their judgement thereon because  the justice here hereof not yet c Plowden er p the case the king be bind by  the statute de gift conditional as well as a common person and therefore if a  remainder in tail be limit to the king and for default of issue to the right  heir of a this be a estate tail in the king and he shall not be at liberty to  take it as a feesimple conditional as before the statute de gift and so to  have power to alien after issue have but upon failure of issue he in remainder  in fee may well enter S c S p cite die pl   b a b a   b   a a   a roll r finch  finch Bac Abr the case be recite in this manner it appear by the record that  Henry Willion have sue a writ of ejection strong against Henry Lord Berkley  and Richard knight for eject he out of seven acre of wood with the  appurtenance in Weston and he have declare that Henry cock esquire be seize of  the same seven acre in his demesne as of fee and be so seize the that day of  may in the four and five year of the reign of king Philip and queen mary at  Hoddesdon in the county of Hertford he demise the same to the plaintiff for  the term of seven year thence next ensue and that he the say Henry Willion be  by virtue of the say demise possess of the say seven acre with the  appurtenance and they occupy until the defendant the that day of may in the  year aforesaid enter into the say seven acre and eject the plaintiff out of  his farm aforesaid to his damage of pound and the defendant plead in bar that  long before the time of the ejectment suppose one William marquis Berkley be  seize of the manor of Weston near Baldock in the county of Hertford whereof  the seven acre of wood be and then and at all time before be parcel in his  demesne as of fee and he be so seize a fine levy in the court of king Henry  here at Westminster on the octave of the purification of our lady in the five  year of his reign before Thomas Brian Roger townsend William davers and John  vavisor justice between Edward Willoughby and John skill complainant and the  say marquis deforceant of the say manor with the appurtenance whereof c  videlicet the say marquis acknowledge the say manor among other thing to be  the right of the say Edward as that which the say Edward and John have of the  gift of the say marquis and the same release to they and to the heir of the  say Edward for ever with warranty against all man and the say Edward and John  by the same fine grant and render to the say marquis the say manor whereof c  among other thing to have and to hold to the say marquis and to the heir of  his body beget and if he shall die without heir of his body beget that then  the say manor whereof h shall remain to the say king Henry and to the heir  male of his body lawful beget and if the say king shall die without heir male  of his body beget that then the say manor whereof c shall remain to the right  heir of the say marquis by reason of which fine the say marquis be of the say  manor whereof c seize in his demesne as of feetail the remainder thereof to  the say king Henry and to the heir male of his body beget and for default of  such issue the remainder to the right heir of the say marquis for ever and the  say marquis be seize of such estate thereof die by protestation seize without  heir of his body beget after who death the say king Henry enter into the say  manor whereof c as in his remainder thereof and be thereof seize in his  demesne as of feetail videlicet to he and to the heir male of his body beget  the remainder thereof for default of such issue to the right heir of the say  marquis by virtue of the say fine and he be so seize of such estate die  thereof seize after who death the say manor where c descend to the late king  Henry as son and heir male of the body of the say king Henry beget whereby the  same king Henry into the say manor whereof c enter and be thereof seize in his  demesne as of feetail videlicet to he and to the heir male of his body beget  and for default of such issue the remainder to the right heir of the say  marquis by force of the say fine and the same king Henry be so seize thereof  die by protestation thereof seize after who death the say manor whereof c  descend to the late king Edward as son and heir male of the body of the say  king Henry beget whereby the same king Edward into the say manor whereof c  enter and be thereof seize in Plowden er p his demesne as of feetail the  remainder as before and afterward the say king Edward of such estate of and in  the say manor whereof c be seize die without heir male of his body issue and  the say king Henry before the say time when c die without heir male of his  body beget whereby the say manor whereof c remain and come by force of the say  fine to the aforesaid Henry Berkley and to his heir as cousin and next heir of  the say William marquis Berkley that be to say as son and heir of Thomas late  Lord Berkley son and heir of Thomas Berkley knight late Lord Berkley brother  and heir of morris Berkley knight son and heir of morris Berkley brother and  heir of the say William late marquis Berkley by reason of which premise the  same Henry Lord Berkley the that day of August in the first year of the reign  of the queen aforesaid into the say manor whereof c enter as in his remainder  as it be lawful for he to do and thereof be seize in his demesne as of Plowden  fee until the say Henry cock into the say seven acre of wood before the time  when c enter and the same demise to the say plaintiff for the say term as the  say plaintiff have declare upon who possession the say Henry Lord Berkley in  his own right and the say Richard as his servant and by his command the say  time when c enter and the say plaintiff out of his say farm eject and so they  demand judgement si action and the plaintiff by he replication confess that  the say marquis be seize of the say manor of Weston whereof c in his demesne  as of fee and that he levy the fine in manner and form aforesaid and that the  say marquis die without heir of his body say further that after the death of  the say marquis the say king Henry then have issue of his body beget one  Arthur late prince of Wales in to the say manor whereof c enter as in his  remainder and be thereof seize in his demesne as of fee by reason of the say  fine and afterward the say prince Arthur die without heir male of his body and  the say king Henry be seize of the manor whereof c in manner and form  aforesaid thereof die seize whereby the same descend to king Henry who enter  and be thereof seize in his demesne as of fee by reason of the say fine and  the say king be so seize take to wife lady Catharine Latimer and afterward by  a Act make in the parliament of the say king Henry begin at Westminster the  that day of January in the thirtyfifth year of the reign of the same king and  there hold and continue unto the that day of march in the say thirtyfifth year  among other thing it be enact that all demise release gift grant obligation  recognizance patent fee acquittance and other thing from thenceforth to be  make by the say lady Catherine or to the say lady Catherine by or to the say  king Henry or by to or between any other person or person shall stand and be  of the same force and effect in law as they shall be if they be make by to or  between any other subject of the say king Henry without any interest profit or  benefit to come or accrue by any mean to the say late king Henry his heir  executor or successor of for or in any of the premise or by reason or occasion  of they or any part of they or otherwise as in the same Act be more full  contain and that afterward the say king Henry by his letterspatent under his  great seal of England bear date the that day of February in the thirtyfifth  year of his reign give and grant the say manor of Weston with the appurtenance  whereof c to the say lady Catherine then his wife and queen of England to have  and to hold to her for term of her life by reason of which gift grant and Act  the say queen be seize of the say manor whereof c in her demesne as of  freehold the reversion thereof belong to the say king Henry and to his heir  and she be so seize the reversion ut above the say king Henry die and the  reversion descend to king Edward whereby he be seize thereof as of fee and he  be so seize by his letterspatent bear date at Westminster the that day of July  in the first year of his reign here show forth grant the say reversion of the  say manor whereof c to sir William Herbert knight now earl of Pembroke to have  and to hold to the say earl and to his heir by virtue whereof the say earl be  seize of the same reversion as of fee and right and afterward the queen die  and the earl enter into the say manor whereof c and thereof feoff the say  Henry cock and his heir by virtue whereof he enter and be seize in his demesne  as of fee and be so seize he make the demise ut above by force whereof the say  Henry Willion Plowden er p enter and be possess until the defendant eject he  ut above and upon this the defendant have demurrer in law hill easter term  Elizabeth and this demurrer be argue in the say term of saint Hillary and  easter by all the sergeant videlicet by Harper Southcote Welsh and Chomley on  the part of the defendant and by Puttrel Bendloe and Carus on the part of the  plaintiff and diverse exception be take by the sergeant and judge also some to  the writ and other to the plead a and if the truth be that the defendant do  not take any good and chattle it see ante c the same exception take by a brown  I but dyer c I against it pale yellow law of ejectm say that the writ be good  either with or without the clause good and chattle and finch say that this  clause shall be put in the writ where the ejectment be suppose of a manor  because the law intend it to be stock with chattle otherwise if of other land  a one exception take by the sergeant of counsel for the defendant be for that  this cause videlicet the good and chattle of the same Henry Willion find in  the same seven acre of wood they take and carry away be leave out of the  original writ and this exception be also maintain by Anthony brown justice who  say that in writ a man ought to pursue the form and order of the register and  we can now make a new form or a new register and in writ it be sufficient to  say that the register be so and in each of the writ in the register there be  the clause the good and chattle c take and carry away and this be omit in none  of the writ in the register ergo it be the common course and usual form of  writ and all writ ought to be so and though in rei in point of fact the  defendant do not take any good and chattle for perhaps the plaintiff have none  there nevertheless he ought to have these word in the writ and make a special  declaration omit the good and chattle as in many case a man shall have a  general writ and make a special declaration accord to the truth of his ease  and although there be a rule in the b king b b register that in a writ of  ejection strong there can be good and chattle because for good a man shall  have a exigent and in the writ of ejection strong distress infinite yet he say  this reason be not c pale yellow law of ejectm c sufficient to overthrow the  exception take for the omission of the word because in this writ there be d    a finch keb pl pale yellow law of ejectm say if these word be omit in the writ  it be a error incurable because there must appear such a trespass in the writ  as will give the king a fine which can be without these word be insert d way  et arms and in all writ which have those word e m h Wankf et moil a   Litt b  roll Abr pl salk ld raym e process of outlawry lie by the commonlaw f f n b h  pale yellow law of eject finch f and f n b say that process of outlawry lie in  this writ which must be by the commonlaw for it be give by no statute so that  the say rule in the register be of no weight g p h pl bro discontin de process  ld raym g but in action on the case process of outlawry do not lie until it be  give by the statute of h cap h king b Yelv h also he say although it be  express in the register that a writ of ejection strong lie of a pool or of  pasture for a ox Plowden yet it may be that there be good there videlicet land  or timber in the pool and in the pasture a ox or a horse and a bell round the  ox neck and fetter round the horse foot and other such like thing which be the  good and chattle of he that be eject so that this be not a sufficient cause to  maintain the omission of the word good and chattle and therefore it seem to he  and to the sergeant of counsel for the defendant that the writ ought to abate  for the omission of the say word but all the sergeant of counsel for the  plaintiff and all the other justice videlicet Weston and the Lord dyer hold  the contrary for the clause of ejectment of the land and of the take of the  good and chattle be two distinct and several clause a S p ante per dyer CJ a  and if the truth be that the defendant do not take any good and chattle it see  ante c the same exception take by a brown I but dyer c I against it pale  yellow law of ejectm say that the writ be good either with or without the  clause good and chattle and finch say that this clause shall be put in the  writ where the ejectment be suppose of a manor because the law intend it to be  stock with chattle otherwise if of other land Plowden er p will be idle to put  the clause in for the law will not suffer a man to complain of more thing than  he have cause b king b f n b d finch see kelw a pl a b for which reason if one  beast be take the writ of replevin shall make mention of that only as his  certain labour beast or his certain ox and it shall not say his cattle in the  plural number where only one beast be take causan how above c king b finch c  and in the register the writ be for a ejectment of a manor and take of good in  which case the Lord dyer say it shall be intend such a manor as be store with  a stock but there be no writ in the register for a ejectment of land or meadow  or pasture or wood and take of good and if there be yet the register be not to  be pursue in such precise term where the truth of his case who sue the writ do  not agree with the word in all point and he say there be diverse precedent in  the common plea where such writ as this be herdwere hold good for which reason  he and Weston justice hold the writ good enough and the Lord dyer say that the  word then that you cause the say tenement to be reseize of the chattle which  within it be take and the say tenement with the chattle to be in peace until c  ought to be in every writ of assize for it be the usual form and the king  command for the repose of the party in the mean time and there be no precedent  to the contrary but here in our case there be several to the contrary another  exception take to the replication by the sergeant of counsel for the defendant  be that in the replication the plaintiff have allege that the marquis die  without heir of his body after who death the say king Henry enter into the say  manor whereof c and he have not allege that there be any office find prove  that the marquis die without heir of his body which he ought to have do for  his death be matter of fact and without his death king Henry have no title of  entry and there ought to be matter of record to prove the matter of fact which  give a title of entry to the king d m Edward bro office devant escheat b n c d  as if the king tenant die seize of his land which descend to his heir within  age e bro office devant escheat prerogative   b Leon finch finch infra e or if  his villain purchase land the king can enter into the land without office  first find his title f Stamf prerog a f and without office there can be no  intrusion upon the possession of the king and therefore office ought to be  find and although the defendant themselves in their bar have say that the  marquis die without issue and that king Henry enter without allege any office  yet this confession of the defendant shall not aid the plaintiff for as to the  defendant the entry and seize of king Henry after the death of the marquis  without issue be not f r necessity but only as conveyance to they for if the  marquis die without issue and king Henry without issue male it be sufficient  for the defendant whether king Henry ever have seize or estate or not for if  the king be never seize it be the better for the defendant but as to the  plaintiff the strength of his title depend upon the make his lease good for he  derive his lease from cock who derive his title from the earl of Pembroke who  derive his title from king Edward who derive his title by descent from king  Henry who derive his titre by descent from king Henry who derive his title  from the fine find from the die of the marquis without issue and entry by  himself so that if the plaintiff do not sufficient prove that the marquis die  without issue and that the king have a estate in the land after his death he  do not sufficient prove his own title or interest wherefore the proof of that  be the substance and support of the plaintiff title but although the defendant  have allege in the bar that he die without issue and that king Henry enter  this confession shall not prejudice the defendant because it be not the  substance of their title for the cause show before but it be the substance of  the plaintiff title and when it be show that the marquis die without issue  then it be the substance of the defendant title to prove that king Henry die  without heir male and not to prove whether there be any office or other matter  of record to entitle king Henry or not for if he never have seize in deed it  be the better for the defendant so that the confession of that which be not  Plowden er p material for the defendant shall not prejudice the defendant nor  make the plaintiff title better nor can it give title by law to the king if  the law will not give it without their confession for their confession shall  not make that to be law which be not law wherefore it be say that because  there be no office allege prove the death of the marquis and the estate and  seize in deed of the king the replication be nought but the whole court argue  against this exception see finch finch S p accord videlicet that upon a gift  in tail remainder to the king the freehold be present cast upon the king  without office by the death of the tenant in tail without issue for when the  marquis die without issue the freehold be present cast upon the king for  Anthony brown say the freehold must of necessity be in some one in order that  he who have title or right to it may know against who he ought to demand it  for which reason it shall not be in suspense and therefore when the estate be  determine in the marquis the law cast the possession in law upon the king g t  h b per Oxenb bro escheat office devant escheat prerogative more   b Leon Poph  vin Abr title prerogative b d pl g as if the king tenant for life die the  freehold in law be present in the king h t h b per Oxenb   a   a Davis a lane  Crompt I c b finch Mod Entr h and so if the king tenant die without heir the  possession in law be present in the Kino without office I S p Leon per Godfrey  arguendo I for he say a office be not necessary but where the king shall take  by it king see ante m and the book there cite king as if the king make a gift  in tail upon condition and the condition be break there the same ought to be  find by office vide above e so ought it where the king villain have purchase  land for the king shall take the land thereby and the land be not in the king  before office but here the freehold Plowden be in he before office and then it  be idle to have a office to convey that to the king which the law have convey  to he before the office find and as to the case put of the wardship of land  true it be that there ought to be a office find to entitle the king for there  the freehold and the possession in law be cast upon the heir a   Litt b   a a  and the guardian be at liberty to take the wardship of the land or to distrain  for the signiory for the signiory be not extinct there b same diversity h  Edward pl Fitzherbert avowry bro guard tenor vin Abr title office d pl b but  it be not so ill the case of a escheat for upon the escheat the signiory be  present extinct by reason that the law convey the possession of the tenancy to  the signiory and so be this diversity take about the first or second year of  king Edward and as in the case of a escheat the possession of the tenancy be  cast upon another lord before entry so be it cast upon the king be the lord  before office and in the same manner here the remainder be present cast upon  the king by the death of the marquis and then a office afterward will be  superfluous and for the same reason also the bar be good by the allegation  that king Edward die without heir male and that the Lord Berkley now defendant  enter without show any ouster Le main or other matter of record to divest it  out of queen mary for when king Edward die without issue male the freehold be  present cast upon the la Berkley now defendant and never come to queen mary  which be upon the reason show before and hereupon Anthony brown say if land be  lease to the king for his life upon condition that if the lessor die his heir  shall enter and the lessor die there his heir shall not enter without office  find the death and without ouster Le main sue but if it be upon condition that  if the king who be lessee die the lessor shall enter there if the king die the  lessor shall enter without office or ouster Le main sue for in the first case  the condition be mere a condition which abbreviates the estate but ill the  other case the condition be join to the c S p more c limitation Plowden er p  of the estate and the condition and the limitation tend to one end and the  condition do not abridge the limitation as it do in the other case and  therefore when the king die the freehold be by the act of the law cast upon  the lessor before entry so in our case when king Edward die without heir male  the freehold be cast upon the Lord Berkley and his entry be lawful without  office or ouster Le main and the bar recite that he enter be good enough in  this point quod to be concession per totan curian also admit that a office be  necessary here yet the defendant by their plea in bar have d like point n  bendl d amend the fault which they have here except to for they themselves in  convey their title to they have show that the marquis die without issue and  that king Henry enter and it be matter of substance for the defendant to show  the death for the feesimple which the Lord Berkley one of the defendant claim  can not be execute in he until both the estatestail precedent be end and  therefore it be as material for he to show the death of the marquis without  heir of his body as to show that Henry die without heir male of his body and  by the plea in bar the defendant have go further and have show that the  marquis die without heir of his hod and that Henry enter and die without heir  male of his body so that they have confess the estate in deed in Henry and the  plaintiff by the replication have say well and true it be that the marquis die  without heir of his body and that king Henry enter c whereby he have only  affirm that which the defendant have affirm and which they be therefore  estopped to say be faulty and Anthony brown say e Litt dr and Stud lib cap  finch e that in assize if the defendant will say that he feoff the plaintiff  in fee upon condition and the plaintiff break the condition for the breach  whereof he reenter this plea be not good because he do not show the deed of  the condition for the condition without the deed show do not lie in averment  but if the plaintiff say well and true it be that the defendant feoff he upon  condition and that he break the condition and the defendant reenter and  afterward feoff he or that after the condition break and before his reentry  the defendant release to he now the bar which be faulty be make good by the  affirmance of he that may have take advantage of it and by his affirmance he  be now estopped to find fault with it so be it in our case here wherefore this  exception be disallow by the rule of the court another exception take to the  replication by the counsel for the defendant be for that the defendant in the  bar have plead the fine which limit the remainder in tail to king Henry and  have allege that after the death of the marquis king Henry enter into the say  manor whereof c and be thereof seize in his demesne as of feetail videlicet to  he and to the heir male of his body beget the remainder to the right heir of  the marquis by virtue of the say fine and the plaintiff in the replication say  well and true it be that the marquis be seize in fee and levy the fine as in  the bar be show and afterward the marquis die without issue and then he say  further that afterward king Henry have issue male enter as in his remainder  and be thereof seize in his demesne as of fee by reason of the say fine which  do not agree with the plea in bar wherein it be say that he be seize in tail  with the remainder over for a feesimple in possession and a feetail in  possession can it stand together in one same person at one same time for which  reason this contradiction of the bar without a traverse be not receivable but  the replication be bad by reason of this variance without a traverse take see  S p accord Bulst but the whole court argue to the contrary for the plaintiff  and the defendant have agree upon the fine by which they have show the estate  as it be and the defendant have take it to be a feetail in king Henry and the  plaintiff have take it to be a feesimple in he especial after issue have and  whether it be a feesimple or a feetail be matter of law which belong to the  court to determine and then when one of they say it be a feetail and the other  say it be a feesimple this be accord as they take the law and will have it to  be and it be no more than to signify to he court that they vary in their  judgement of the law whereupon the court may be the better apprise of the  point of variance upon which they be Plowden Plowden er p to adjudge and when  the matter of fact be agree by the one party and the other a traverse can be  take to the operation of the law thereupon a that a traverse shall be to  matter of fact only and not to matter in law Yelv ld raym vin Abr title  traverse p pl a for a traverse shall never be take but to matter of fact and  if the party be agree upon the matter of fact they shall not traverse the law  thereupon as to say the law upon this matter be with I without that that it be  with you but the judge shall adjudge upon it without traverse of the party for  as Anthony brown say matter of fact be traverse shall be try by man and if the  plaintiff shall take a traverse here it will be to make illiterate man try a  matter of law whereof they have no knowledge and he say it be not their office  to try matter of law but only to try matter of fact for he say at the  beginning of our law it be ordain that b   a   b b matter of fact shall be try  by man of the country where the matter arise c finch finch c and matter of law  by judge of the law for which purpose there be six judge here and six in the  king bench who upon matter of law use to assemble together in a certain place  in order to discuss what the law be therein so that if a traverse shall be  here take it will be to make ignorant man of the country try that whereof they  be not judge and which do not belong to they to try and therefore the cross of  the bar by the replication be good enough without a traverse for which reason  this exception be disallow by the rule of the court another exception take to  the replication be for that it only recite part of the Act make in h touch the  distrust capacity of the queen for there be in it a save to every subject  their right which be omit in the replication and it be say that it be but a  particular Act whereof the court be not bind to take notice but the whole  court be of opinion against this exception for they say that without its be  plead the court and all the realm be d herewith agree   b and finch finch wing  Max ring pl d bind to take notice of it for although it be make touch thing  between the king and queen and touch the capacity of the queen yet it concern  all the subject of the realm e   a e for every subject have a interest in the  king and none of his subject that be within his law be divide from the king  who be his head and sovereign so that his business and thing concern the whole  realm and forasmuch as the whole realm have a interest in the king and by the  same reason in the queen who be his wife the say Act concern the whole realm  and may well be call a general Act whereof every one be bind to take notice  and Anthony brown say although the save have not be in the Act yet it shall  have be imply by the intent of the maker for the intent of the Act be to make  the queen have such capacity as be express in the Act and to this intent only  the Act enures and not to all other intent f see ante g and the book there  cite f and whoever will consider a Act well ought always to have particular  regard to the intent of it and accord as the intent appear he ought to  construe the word wherefore his exception be disallow by the rule of the court  another exception be take to the replication for not show the place of the  date of the say letterspatent of king Henry make of the say manor to the queen  for term of her life for the plaintiff convey his lease from cook and cock  convey his title from the earl of Pembroke and the earl from the king by grant  of the reversion in which case it be necessary for the plaintiff to make the  queen have a estate for life for if she have not a particular estate in the  manor it can not pass to the earl by word of reversion and in order to make  her have a particular estate it be requisite to show that the letterspatent  make to her be good and perfect and this the plaintiff have not do unless he  show in what place they be date for in all matter of record the place of the  date ought to be show as well as the time of the date and so here the  plaintiff although he be not bind to show the letter Plowden er p patent make  to the queen because he do not S p ante claim by they ought nevertheless to  plead they certain which he have not do when he have omit the place of the  date of they wherefore for want of show the place of the date the replication  be ill but the whole court be of opinion against this exception g S p m h b  per palm et pollard g for although it be usual in plead deed to show the place  where they be make in order to inform the court of what visne the jury shall  come if they be deny this reason do not hold place here as the Lord dyer say h  p h a m h b m h b per palm et pollard   Litt b a   a   a roll Abr pl roll r  hob cro I Hardr finch Tri per pais h for he say no matter of record shall be  try per pais if it be deny and the letterspatent be a record in themselves and  no record can be try per pais so that forasmuch as the place of the date be  show in plead only for the certainty of the visne and for no other cause  therefore the place be not necessary to be show here because no jury shall  come from any visne to try the letterspatent also Anthony brown say if neither  the place nor the I but in such case he ought to surmise a date per Fineux m h  a Noy I day of the date be in the letterspatent yet the letterspatent be as  good as the deed of any king see kelw b pl a deed hold good though there be no  place nor day of the date therein but the plaintiff surmise when and where it  be make S p Noy king other person be which have not the place or the day of  the date S p   a cart for the grant of the thin be the substance and the place  or the day of the date be but a circumstance of truth and not matter of  necessity for if the king grant a office to one by his letterspatent and  afterward grant the same office to another by other letterspatent and neither  of the letterspatent have any day of the date there if he who have the first  patent be disturb or oust he shall have a to know facias or other suit and  whether his patent be more ancient than the other shall be try by a jury of  man upon issue join thereon and the statute of h cap recite a mischief in  antedate the king letterspatent and give remedy for the same but it do not  recite any mischief arise from the omission of the date but ordain that of  every warrant hereafter send by the king or his heir to the chancellor the day  of the delivery of the same to the chancellor shall be enter of record in the  chancery and that the chancellor shall cause letterspatent to be make upon the  same warrant bear date the day of the delivery of the warrant into the  chancery and not before and if any letterspatent from henceforth be make to  the contrary they shall be void and hold for none m vin Abr title prerogative  g b pl m by which statute letterspatent bear another day of date than Plowden  the day of the entry of the warrant where there be a warrant be void and not  otherwise and if there be a warrant and the day of the delivery of it be enter  and the patent have no day of date it be good and be out of the word and  intent of the Act and remain at commonlaw and at commonlaw letterspatent be  good notwithstanding they have no day of date and so be they at this day  notwithstanding they have no day of date in they quod dyer to go away b t h  Fitzherbert record bro patent b and yet he say in the quare hinder bring by  the king against the abbess of Zion in h the abbess convey the feesimple of  the advowson to her predecessoress by fine of a bishop and in order to make a  good estate in the bishop she show that king Henry be seize of the manor to  which the advowson be appendant and by his letterspatent lease it to husband  and wife for their life and afterward king Henry by his letterspatent bear  date c recite the say demise to the husband and wife grant the say manor to  the say bishop and other habendum One gum advocation to they in fee and the  bishop survive the other and grant it to the predecessoress of the defendant  ut above and the king demurrer upon the plea and one cause of Plowden er p the  demurrer there show be for that the defendant plead the letterspatent make to  the husband and wife as of necessity she ought forth whole effect of the  letterspatent make to the bishop depend upon the first letterspatent make to  the husband and wife for if there be no such lease consequent there be no such  reversion and if so then the second letterspatent be void and do not show the  day year or place of the date of they and there it be argue that although she  shall not be compel to show the say letterspatent make to the husband and wife  because they do it belong to her that yet she ought to plead they certain and  show the day year and place of the date for they be of record and every matter  of record ought to be plead certain whether it belong to he that plead it or  not and every matter of record ought to have the year day and place of the  date or else it be n matter of record for if the letterspatent have no date  they be worth nothing and the party shall have advantage thereof by demurrer  and although judgement be there give for the king yet he say he do not take  the say exception to be the cause thereof but other matter there move so that  he apprehend this point be not there adjudge and he say though the place of  the date be out of the letterspatent yet they be good and therefore that the  replication here seem t you he to be good notwithstanding the omission of the  place of the date also it be say that the show of the letterspatent make to  the queen be but matter of conveyance and so this exception be disallow by the  rule of the court and Anthony brown in speak to this exception say c m h b per  Brian bro to point out de faits in fine m h b   Litt a   b Hardr do Pla Crompt  I c a b c if a man plead any grant of the king by his letterspatent seal with  the great seal and show they forth the other party can say nul tiel record for  if he shall have a day to bring in the record he can not prove it by any other  mean than by that which he have show videlicet by the great seal and therefore  the party and every other shall be estopped to deny it and it be good against  all by conclusion but if a man plead of recovery fine or indictment or the  like there the other party may say nul tiel record and he stall have a day to  bring in it for there he may bring it in under the great seal which be a great  authority than he have show and so be the diversity as he say another  exception be take to the replication for that in the bar it be allege that  king Edward die seize and the replication do not warrant that he do not die  seize for he have grant the reversion to the earl of Pembroke and have not  take a traverse to the die seize allege in the bar send non allocatur  exception for it be not of any effect to be traverse nor very material whether  he die seize or not for the estate which he have be end by the allegation of  the defendant so that the defendant do not claim by the descent but by the  remainder before for which cause the descent be immaterial another exception  take to the replication be for that it contain that the earl of Pembroke after  the death of the queen enter into the say manor whereof c and thereof feoff  the say Henry cook and his heir by virtue of which he enter and be seize in  his demesne as of fee whereas it be not the order of plead upon a feoff to say  that he enter for the feoff contain livery and the livery contain seize in  deed which be as much as a entry for a entry be to no other purpose but to  gain possession in deed and that be contain in the livery before and then the  allegation of entry make the replication bad send non allocatur exception for  although the say reason be true that the feoff imply seize which be tantamount  to a entry yet the entry allege do not make the replication bad for it be but  surplusage d S p   Litt b   a roll r exception d which not be contrary to the  matter before shall not vitiate the plea the Lord dyer move another exception  to the replication for that it contain that king Edward grant the reversion to  sir William Herbert knight now earl of Pembroke to have and to hold to the say  earl and to his heir in which case if he be then only a knight it can be well  say to have and to hold to the say Plowden er p earl nor that by virtue  thereof the say earl be seize c but it ought to be to have and to hold to the  say sir William Herbert and by virtue whereof the say sir William Herbert be  seize so that it seem to he not to be as well as it may be but as he be the  first that move this in his argument and no other argue after he therefore  none of the rest of the justice show their opinion therein and it be move by  some of the counsel for the plaintiff that the grant of king Henry to the  queen for her life be a discontinuance of the tail and that the Lord Berkley  the defendant may not enter and that it be a discontinuance for the life of  the queen which Southcote who be of counsel for the defendant grant for he say  if the king shall be take as tenant in tail then Plowden his grant in fee in  tail or for life make by his letterspatent work a discontinuance for he can  make livery and therefore the law say that some way he shall be able to do as  much as a common person may that be make a discontinuance a oh bendl per Yelv  I vin Abr title copyhold g e pl a and if a copyhold be entail and he will  surrender to the use of another in fee and a copy be make to the other accord  this shall be a discontinuance for he can part with the land by livery or any  other way and this way which he may use shall be of the same benefit to he as  livery shall be to he that may make it so in the principal case it shall be a  discontinuance for life but his companion hold that it shall not be a  discontinuance because it only pass by grant b m h bro discontinuance de  possess patent tail b n c   Litt b   b Bridgm finch Kitch b which can make a  discontinuance c roll r c and also every discontinuance be a wrong d see post  and the book there cite d which the king can do but he and all the other  counsel for the defendant and the whole court hold that if the king shall be  only tenant in tail so that the matter in law will serve the Lord Berkley the  defendant his entry shall be lawful for it shall be a discontinuance it can  not be a discontinuance long than for the life of the queen for the grant of  king Edward to sir William Herbert can not make a discontinuance in fee  notwithstanding it be execute in his lifetime because king Edward be never  seize by force of the tail and so by the rule of e Littlet e Littleton it be  not a discontinuance and therefore the Lord Berkley in the remainder may enter  without office or to know facias against the patentee or any such mean for the  interest of the king be absolute determine and nothing remain in he and the  Lord dyer in his argument take exception to the replication for that it  confess the estatetail in king Henry and then say that he have issue prince  Arthur enter and be seize in fee whereas he say the have issue do not make he  to have the fee for the fee either accrue to he by the remainder or never for  admit that it be in the king as t e plaintiff will have it videlicet as it be  in other before the statute yet the feesimple vest at the beginning though by  issue he have power to alien which he have not before but the issue be not the  cause of have the fee but the first gift so that he say the issue do not make  such a metamorphosis as the replication contain for which reason he say the  replication be not good in this point also he take exception to the bar for  that it contain that king Edward die without heir of his body issue and that  the say king Henry before the time when c die without heir male of his body  beget which he say be a contra diction in itself for it can not be say that  Henry die without heir male of his body when he have show before that he have  issue Henry and he Edward but if a estatetail be give to I S the remainder to  another and I S have issue and die and the issue enter and die without issue  and he in the remainder bring a formedon in the remainder f see die pl f he  may say that I S die without heir of his body and the writ and declaration  there shall be good notwithstanding the other show Plowden er p that he have  issue which survive he and enter and die wit out issue for when his issue die  without issue he upon the matter die without heir of his body and this be  usual in writ of formedon in remainder and there be no repugnancy of his own  show but to show that he have issue and die and the issue enter and die  without issue and then to say that the father die without issue be a  repugnancy of his own show and here he may have use other word to express that  there be no other heir male of the body of Henry in be for he may have say  that Edward die without heir of his body there be no heir male of the body of  the aforesaid king Henry alive which will have satisfy his whole intent  without any repugnancy another exception he take to the bar for that it  contain that the Lord Berkley the defendant enter as in his remainder and be  thereof seize in his demesne as of fee until the say Henry cock enter into the  say seven acre of wood and demise they to the plaintiff for the say term as  the plaintiff have declare c which be not well plead for the plaintiff have  declare of a lease in deed make to he by Henry cock which the defendant ought  to confess and avoid or traverse and here they have not do either the one or  the other for they have say that the Lord Berkley be seize until the say Henry  cock enter and make the lease and if cook enter and do not seize the Lord  Berkley he have no estate to make the lease for the defendant have show that  the Lord Berkley be in by good title until cock enter in which case his entry  shall not gain he possession g Litt more pl hob Bridgm Perk finch finch g for  if two be upon the land the law will adjudge the possession in he that have  the best right to it h S p h pl bro plead roll r Bridgm salk Anony per holt CJ  heath Max vin Abr title possession a pl h so that the entry do not imply a  seize and without a seize he have no estate to make the lease for which reason  it ought to have be say that he enter and seize he and afterward make the  lease and that he reenter and this will have be a good confession and  avoidance of the lease but as it be plead it be not so for his entry do not  imply a seize nor shall it gain the possession and so it be take in one of the  year of I p Edward a I Edward wherefore the bar seem to he not good for these  two cause but as he first move these two exception in his argument and none  argue after he I can not learn the opinion of the other justice therein as to  the matter in law it be say by the sergeant abovementioned of counsel for the  defendant that first the capacity of the king be to be consider and how many  capacity he have and if he have several capacity then in what capacity king  Henry take the remainder and whether or no after issue have he have power to  alien as every such donee have before the statute de gift conditional or if he  shall be bind and restrain by this statute as every other donee be and if he  shall then it follow from thence that when the issue male come from king Henry  be extinct the Lord Berkley now defendant may enter and if oh be that king  Henry may be say to have a feesimple and to have power to alien post offspring  encourage king Henry shall also be deem in the same case and so shall king  Edward and then he by his Plowden letterspatent make to sir William Herbert  have lawful give the say land in feesimple and from thence it will follow that  the Lord Berkley now defendant may not enter but be without remedy and as to  this it be argue on this side that the king have two capacity a   a calvin  case vin Abr title prerogative you d pl ante b a for he have two body the one  whereof be a body natural consist of natural member as every other man have  and in this he be subject to passion and to death as other man be the other be  a body politic and the member thereof be his subject and he and his subject  together compose the corporation as Southcote say and he be incorporate with  they and they with he and he be the head and they be the member and he Plowden  er p have the sole government of they and this body be not subject to passion  as the other be nor to death for as to this body the king never die b see ante  c and the book there cite b and his natural death be not call in our law as  Harper say the death of the king but the demise of the king not signify by he  word see that the body politic of the king be dead but that there be a  separation of the two body and that the body politic be transfer and convey  over from the body natural now dead or now remove from the dignity royal to  another body natural so that it signify a removal of the body politic of the  king of this realm from one body natural to another but notwithstanding that  these two body be at one time conjoin together see post d will yet the  capacity of the one do not confound that of the other but they remain distinct  capacity c S p finch finch Bac Abr c so that the king may take in his body  natural land or tenement as heir to any of his ancestor and ibidem but per  holt CJ contra for such a purchase to he and to his heir shall vest in his  politic capacity and the king can have nothing in his natural capacity unless  in right of his duchy or a estatetale by the statute de gift Mod also in this  capacity he may purchase to he and to his heir S p post b and d infra m and  his heir shall hold the same notwithstanding he be remove from the estate  royal d finch finch d and also he may take or purchase land or tenement in fee  in his body politic videlicet to he and to his heir king of England or to he  and to his successor king of England so that his double capacity remain a two  do in other person chat have a double capacity e bro dean c p h b per pollard  finch post c e as a bishop or dean may take descent or purchase to they and to  their heir or to they and to their successor as they please f ass pl  Fitzherbert guaranty bro asset per descent prerogative tail   Litt b b   a  calvin case co b roll r post f and to prove that the estate royal do not  confound the other capacity the case in ass pl be allege where it appear that  king Henry give a manor to the earl of Cornwall in tail save the reversion to  himself and die the earl give the manor to another in fee by deed with clause  of warranty in exchange for another manor and afterward the earl die without  issue leave asset and the warranty and asset descend upon king Edward be heir  to the earl and there it be adjudge that the king be bar this warranty with  asset and therefore the assignee of the alienee have restitution of the manor  out of the hand of king Edward who have seize the manor into his hand for the  reason above say which case prove that the capacity which the king have in his  body natural remain after he be king for else the warranty and asset can not  have descend upon he as heir to the earl his ancestor so that by this warranty  and asset which descend upon the body natural of the king he be bar of the  reversion which he demand in his body politic for it be parcel of the  possession of the crown for any thing that appear to the contrary and as his  capacity remain to lake by descent as heir sa it remain to purchase therein g  p h b Fitzherbert quare imp bro plead die pl g for in I h as Southcote say the  master of the house of God in Canterbury bring a quare hinder against the  abbess of Zion and count that king Henry be seize of the advowson as in gross  in his demesne as of fee and right and make descent from he to king Henry and  from he to king Henry who grant it to the plaintiff and exception be take to  the count because he say that king Henry be seize as heir to his father of the  advowson as of fee and right and do not say in jure coronae which he ought to  have say send non allocatur for it be hold by the argument there h infra I say  contra   Litt a Mod holt J C Bac Abr h that if the king purchase land he shall  have it in the capacity of his natural body and not in right of the crown  Plowden er p so that his capacity oh take in he natural body as well by  descent we by purchase remain as well as his capacity to take in his body  politic for of the politic capacity there be no doubt further as to the point  in what capacity king Henry take the remainder the counsel for the defendant  hold that he take it in the capacity of his body natural for it be limit that  if the marquis die without issue the say manor shall remain to the say late  king Henry and to the heir male of his body beget by which name of Henry his  proper name be signify and the capacity of he body natural for king he must of  necessity be cable and the call he Henry be a demonstration what king that be  to say not king general but king Henry which be a particular king know only  and no other by that name and no other word can have be use to signify his  proper name and to give it to his body natural I above h say contra   Litt a  Mod holt CJ Bac Abr I and if land be give to the king and to his heir he take  it in his body natural and not in his body politic and this be prove by the  say case in Henry where the party declare that the king be seize as of fee and  do not say in jure coronae and exception be take to it because he do not say  in jure coronae and disallow king p h b per moil bro descent prerogative but    Litt b say contrary that the daughter shall not have the land purchase because  they vest in the politic capacity and as such shall go to the young brother  with the other land parcel of the grow S p Bac Abr king and it be there say  that if the king be seize of land parcel of the crown and parcel by purchase  and die leave a son and a daughter by one venture and a soil by another  venture and the son enter and die without issue the daughter shall have the  land purchase and the son the other ergo a purchase of the king do not go to  the body politic but to the body natural lamb peramb follow this opinion but  see the contrary   Litt b robin of gavelk post c per a brown I keb side t raym  where this opinion be deny to be law by Twisden I and if land in gavelkind be  give to the king and to his and he die have issue two son Southcote say that  both shall inherit together the old be king shall not have the whole and so it  be say it be take in a certain book eigo a gift of the king and to his heir  vest in the body natural of the king and not in the body politic for if it be  vest in the body politic then the old alone shall have have it so here the  remainder in tail to king Henry and to the heir male of his body shall vest in  his body natural and in that body he shall enjoy it m above m so that if he  have be depose or remove from the office of king yet he shall have hold this  land as land purchase Plowden by he in his body natural a roll Abr g pl a but  he say if the king have a villain in right of his crown who have purchase land  and the king enter into it there he shall have it in right of his grow and  shall hold it in his body politic because in that body he enjoy the villain b  see post chapman v Dalton adjudge upon this ground and many other good case  there put to the same effect b and where a man have a thing by reason of  another the thing which come by reason of the other shall he have in the same  capacity in which the other that be the mean thereof be enjoy c m Edward pl  Fitzherbert mortmain bro p h bro villeinage b n c   Litt a b roll Abr g pi  Plowd queer c and therefore he say in Edward in assize it be take that if a  bishop who have a villain in right of his church enter into the land purchase  by his villain it shall be intend in right of his church so if the king have a  signiory in right of his crown and the tenant cess or disclaim whereby the  king recover the tenancy he shall hold it in right of his grow because in that  right he hold the signiory which be the cause of the recovery but here this  remainder in tail to king Henry be a new thing that come only by purchase and  not by reason of another thing and therefore he shall be take to hold and  enjoy it in the capacity of his body natural Plowden er p then as to the last  point videlicet if the king shall be restrain and bind by the statute de gift  conditional so that after issue have he can not have power to alien the  counsel for the defendant say that first the commonlaw be to be consider and  the mischief that be before the statute second the purview and intent of the  statute and three the estate and prerogative of the king and as to the  commonlaw before the statute there be but then d Litt   Litt b   a and Gouldsb  Curson post d c d one estate of inheritance and that be a feesimple but these  feesimple estate be in two manner the one a feesimple absolute the other  conditional e finch e the feesimple absolute be when land be give to a man and  to his heir the other to his heir of his body which be also a feesimple but in  this last estate there be a condition annex to it that if he die without heir  the land shall revert to the donor which condition be imply in the word as  well as in the intent for in that the gift be to one and to his heir of his  body and do further therein it be imply that if he have no heir of his body  the donor shall have the land again f Inst Vaugh booth Bac Abr finch f and  hereupon there be a writ at the commonlaw for recovery of the land if the  donee die without issue videlicet a formedon in reverter which the statute say  be common enough in the chancery g Inst Vaugh Gouldsb pl booth finch finch vin  Abr title formedon a pl post g g but a formedon in remainder for he in the  remainder of such estate lie not at the commonlaw h Mod p wms Rep tempt  Hardwicke big on recov finch post e h for a remainder can not be appoint over  upon such estate before the statute de gift be make because a gift to one and  to his heir of his body be a feesimple whereupon no remainder can be appoint  over I die pl lb Curson post f a I for a remainder can be limit upon a  feesimple determine king   Litt a Inst booth Curson post m c h king but if the  donee have issue then he may have alien and by this alienation have bar his  issue for ever for they construe the gift all one as to this purpose when land  be give to one and to his heir of his body and when it be give to he and to  his heir if he have heir of his body so that they take this as a condition and  when the donee have issue then they take the condition to be perform and that  he may then alien because he have such heir as be limit in the gift   Litt a    a finch but if he have die without any issue or if he have have issue and that  issue have die without issue the donor shall have have a formedon in reverter  for in m h Fitzherbert formedon as Southcote cite it a man bring a formedon in  reverter for land give in frankmarriage because the issue of the donee die  without heir of his body and it be adjudge that it lie well for the donor or  his heir m bro formedon   Litt a   a finch wing Max Reg pl Bac Abr m and if  the donee at the time of the alienation have no issue but after the alienation  have issue who die without issue such alienation shall not bind the donor but  the donor shall have a formedon in reverter for Southcote allege that in n  Fitzherbert formedon n Edward in journey cornubiae a man bring a formedon in  reverter for that the donee die without issue and the tenant say that the  donee alien before the statute and have issue and the demandant say that he  have not issue when he alien and there the court compel the tenant to answer  if he have issue alive when he alien wherefore the tenant say that he have  issue alive when he alien and the demandant e contra by which case it appear  that if the donee have issue at the time of the alienation such alienation  shall bind the donor but if he have no issue at the time of the alienation  then the alienation shall not bind the donor although he bad issue afterward  because the condition Plowden er p be not perform at the time of the  alienation that be he have then no issue of his body so that they construe the  gift that the donee may alien after issue have which be contrary to the intent  of the donor for he intend that the land shall come back again to he whether  the donee have issue or not if so be that all the issue be dead and that the  issue while there be any shall have the land and no other and the exposition  which they then make of the gift videlicet that the donee may alien after  issue have be contrary to the will of the donor as the preamble of the statute  de gift say it seem and yet seem hard c which be a great mischief the king and  the whole parliament intend to remedy it as the statute itself purport which  say wherefore our lord the king perceive how necessary and expedient it be to  provide remedy in the aforesaid case have ordain that the will of the c shall  be observe c so that for a great grievance the provide a full remedy and the  Act say afterward if a fine be levy hereafter upon these land Self jure sit  nullus whereby it be ordain that a fine although fine be then great regard as  to the oh see ante oh oh right shall be void against the issue or the donor  which three clause videlicet it seem hard c and wherefore the lord the king  perceive c and that the fine shall be void c intimate to every man as Chomley  the recorder say the great consideration which the legislature have in make of  the Act and that they apprehend the grievance to be very great and intend to  make the provision for it general without any exception and the word of the  purview show the same videlicet that the will of the giver accord to the form  in the deed of gift manifest ex press shall be from henceforth observe c which  will of the donor Plowden to have the land continue in the issue and to have  the land back again after the issue be dead be as great when the king be donee  as when a common person be donee so that there be no exception of the king  either in the word or in the intent of the Act but he be include in the  purview of the Act as other be although he be not name by express word and  forasmuch as the Act be make to save man inheritance we ought to construe it  accord to the consideration of the commonlaw and to admeasure the prerogative  of the king upon this Act which be make for the safety of the inheritance of  other in such manner as the commonlaw admeasures they in case that affect the  inheritance of other at commonlaw and although by the commonlaw the king have  many prerogative touch his person his good his debt and duty and other  personal thing yet the commonlaw have so a Inst Noy a admeasured his  prerogative that they shall not take away nor prejudice the inheritance of any  b m h per fortescue et Hengston per moil per Prisot et fortescue bro toll b  and therefore the commonlaw so favour the king that a custom which bind all  other to pay toll for thing buy in market or fair or which bind man to pay  throughtoll shall not bind the king to pay toll in such case but he be except  by his prerogative c h Fitzherbert toll show c but yet a custom for  tolltraverse shall bind the king as Ha per say wonder ho cite for it the book  of Edward for tolltraverse be for cross or go over another soil or freehold  and it affect the inheritance of a man to suffer any one to go over his ground  not be a common way without pay any thing for it for which reason the king  prerogative by the commonlaw can prevail against such a custom as stand with  the right of inheritance of another d see ante d and the book there cite d  also he say that the king have such a prerogative that he may wave demurrer  and plead to issue or wave issue and demurrer upon the plea of the other party  e p Edward a Fitzherbert prerogative bro m h pl Fitzherbert prerogative Vaugh  Hardr Litt r heath Max finch finch e but yet if he and the party be at issue  he can change his issue in another term for then he may do it in infinitum and  the party may be disinherit thereby and therefore the commonlaw will not  suffer the king to have such a prerogative so in general statute make for the  safety of inheritance or for the Plowden er p public good the expositor of  they have construe they accord to the course of the commonlaw videlicet that  they shall include the king notwithstanding he be not name as the statute of  Westminster cap make to redress usurpation of advowson upon tenant for life or  during the minority of infant ordain that as often as any have no right do  present during the lime that such heir be in ware or during the estate of  tenant in dower by the courtesy or otherwise for term of life c at the next  avoidance when the heir be come to full age or when after the death of the  tenant before name the advowson shall revert unto the heir be of full age he  shall have such action acid exception by writ of advowson possessory as the  last ancestor of such a heir shall have have at the last avoidance happen in  his time be of full age before his death or before the demise be m de for term  of life c f t h b Fitzherbert quare imp bro more roll r Inst say contra roll r  Crompt I c b vin Abr title statute e pl f and by the better opinion of the  court it be hold in a quare hinder in h the t if the king usurp upon tenant by  the courtesy or during the nonage of a infant this shall not gain the  patronage of he in the reversion or of the infant for the statute be make to  save the inheritance of they that have right and for the public good g bro  coverture parliament Inst g but the principal case there be that the king  usurp upon a infant tenant for life of a advowson of his own purchase and  there it be not hold so clear that he shall avoid it by reason of his nonage  for he be not so full within the purview of the Act because he have not the  advowson by descent and the statute say he shall have the same action as his  last ancestor shall have have h t h b per nedham Inst roll r Bac Abr h and so  it be there hold that where the statute of Merton cap ordain that usury shall  not run against ant be within age which be as much as to say that the rend  shall not be double during the nonage of the heir if the king give land to  another render rend Payable at a feast annual and for default of payment that  he shall double the rend at every default and afterward the grantee die his  heir within age there he shall not double his rend to the king for although  the statute be general yet the king be bind by it because it be make for  remedy of infant and for the public good I roll r Bac Abr I also the statute  of Merton cap which ordain that every freeman which owe suit to the county  trithing hundred and wapentake or to the court of his lord may free make his  attorney to do those suit for he include the king in the general word for a  man may make his attorney to do his suit to the king court if he be his lord  as well as to the court of another because the Act be make for the ease and  convenience of subject king p long Edward b bro addition parliament roll r keb  Crompt I c b finch finch vin Abr title statute e pl post g king so in Longo  Edward a man indict of trespass plead not guilty and be convict and there he  show to the justice that he want a addition and that the court ex duty ought  to consider it although he have plead to it and he pray remedy and there it be  say that a indictment be de king suit and that the king be not bind by the  statute to give a addition but it be at the king election as it be at the  commonlaw but it be there hold that the king be bind by the statute for of a  law which belong to a common person be it the commonlaw or a special law every  man shall take advantage which the king of common right can defeat for every  man be a inheritor to this commonlaw of addition as well as to any other  commonlaw which the king can defeat without parliament for of this law every  man shall take advantage and to this all the justice there agree that there  ought to be ail addition in the king action as in indictment where process of  outlawry lie as well as in debt trespass appeal and other such original where  process of outlawry lie which it be say be a very good case and the reason  there give be well worthy of observation yet the king be not general bind by  all statute in general word unless he be special name t Edward Fitzherbert  prerogative   b a roll r Bac Abr post f a as the statute which say common plea  shall not Plowden er p follow our court do not bind the king nor the statute  which give punishment for distress in diverse case nor many other statute  which give punishment for break of order or touch good and chattel which be  intend only between subject and to prevent discord between they but otherwise  it be if it concern the Plowden safety of inheritance or the public utility of  the realm and as the say statute of usurpation of usury and other which  concern the reality or inheritance or the public good of the realm the  expositor of they have construe they to include and bind the king by the  general word without any special mention of he so have they expound this Act  de gift conditional to bind the king and especial upon this reason videlicet  because the king and the realm have ordain that the will of the giver accord  to the form in the deed of gift manifest express shall from henceforth be  observe so that thereby it have make the will of the donor only to be respect  and regard in which word as Welsh say the king have submit his own will to the  will of another and that by Act of parliament so that every one that can say  this be the will of the donor express in the charter or conveyance may thereby  bind the king and take from he all election to have it as a f esimple  conditional as well as the power to alien after issue have and may say to he  it be not the will of the donor that you shall have a feesimple or that you  may alien after issue have so that the king may by justice bind himself to the  will of another and can go from it for he say the king have in he three thing  videlicet power justice and mercy power to do justice to enforce he to do and  mercy to restrain he from do the last of these be exercise in matter that  touch himself but justice to enforce he to do have respect to thing which  concern the public so that every subject may claim from he justice and the  king be force by justice to do that which he ought and so the Lord Berkley may  say to the king you have bind yourself by authority of parliament to the will  of another videlicet of the donor and by his will you shall only have a  estatetail and you have no power to alien the land from the donor or he in  remainder if your tail be end and your tail be now end and therefore I who be  in remainder ought to have it so that he may claim from he that to which he be  bind by the Act as another subject be and he may object to he the Act which  restrain he from say that he have a great estate than in tail and to prove  that the king be bind by the Act and that he can say since the Act that the  estate be a feesimple conditional as it be before the Act the ease of tenant  in tail attaint for treason be allege in which case it be say the issue in  tail shall inherit and the king shall not have the land against the issue by  reason of the attainder and to this effect the case of the earl of ken be cite  who be donee in tail of the king and commit treason against the king which  case in a m h a Fitzherbert livery bro treason post Q a mich h in person ring  where the statute de gift conditional be touch to this purpose and if the  issue in tail may say against the king that his father be not as to the king  tenant of a feesimple conditional but tenant in tail and therefore that he  shall not forfeit the land to the king for treason this prove that the king  shall be bind by the say statute by reason of the word the will of the donor  shall be observe b h bro Nosme b n c   Litt a b   b roll r roll r godb lev t  Jones Pollexf Inst S p c h h p hawk p c Bac Abr post bro tenor b and this be  always receive for law and practice until the statute of h cap which enact  that every one who shall be attaint of treason shall forfeit to the king all  his tenement or hereditament which he have of any estate of inheritance by  which word videlicet of any estate of inheritance it have be take that tenant  in tail shall forfeit entire the land entail but with this Act be make it have  always be hold and practice otherwise since the statute de gift conditional  videlicet that the issue in tail shall inherit the land against the king  causan how above c p h pl Fitzherbert guard post c send S p contra m h pl per  Fitzherbert bro tenor post c c so in h tenant in feesimple who hold of the  king in capite make a gift in tail to hold of the chief lord of the fee the  donee Plowden er p die his issue be within age and the king seize he as his  ware and the donor claim he and upon the matter disclose in traverse of a  office there be a demurrer in law and there it be well debate whether the  donor or the donee be tenant to the king and other matter relate to the point  of wardship and at last it be award by the advice of all the justice of the  one bench and of the other that the hand oh the king shall be oust and that  the donor shall be restore to the ware which he ought not to have be if the  king have not be bind by the say statute de gift conditional for if the donee  as to the king shall be as he be before the say Act then he shall be tenant of  a feesimple conditional in which case he shall be immediate tenant to the king  and then the king shall have have the wardship of his issue but in that it be  adjudge that he shall be in ware to the donor and not to the king therein all  the justice then take it that the king be bind by the statute d m h bro office  devant Esch d so Welsh cite the case in h and say that be find by diem to shut  extremum after the death of the lady Dacres that one by fine give land to  another for life the remainder to the Lord Dacres and to the say lady his wife  in tail and the Lord Dacres die and the LadyDacres enter upon the tenant for  life and seize he after which seize the say tenant for life reenter and be  seize at the time of the death of the lady Dacres and that she do not die  seize of any other land and one come into the chancery and surmise that the  tenant for life have surrender his estate to the lady in her lifetime and so  she die seize and pray a new commission of melius to seek after for the king  and have it upon which the commissioner sit and return it and it be there  debate whether or no this new commission be well award and it be hold clear by  all the justice that the commission be bad award e bro tenor e and one of the  principal reason be that although the land be hold of the king by knight  service as the case ought to be take yet it be hold of the donor in tail and  not of the king and then to inquire for a better title for the king where it  appear that although it have be as they surmise yet the king have no title but  another videlicet the donor it ought to be utter void for it be there say  although the king may take the service by the hand of the tenant in tail  because he be in possession yet notwithstanding this he be tenant to the donor  and it be for this cause chief that all the say justice hold that the  commission be bad award Plowden by which judgement it be imply as Welsh say  that the justice there hold the king to be bind by the statute de gift  conditional for if he have not be bind by it then the surmise will have be  sufficient to entitle the king for then the donee shall have be say as to the  king to have a feesimple conditional and so shall have hold immediate of the  king and not of the donor but in that they adjudge that he hold of the donor  and not of the king therein it be imply that the king be bind and that he can  not say that the donee have a feesimple conditional a p h b per powlet et  gascoin Fitzherbert petition bro mortmain a also Southcote cite the case in h  which he say be abridge by Fitzherbert in Title petition and be thus videlicet  tenant in tail of the service alien in mortmain and the time devolve to the  king for default of the other lord whereby the king seize the service and  afterward the land escheat the issue in tail shall have remedy by petition per  gascoigne and this he shall not have if it be a feesimple conditional as to  the king so that these case prove that the judge in former time have take this  Act to bind the king and to restrain he from all election to take the estate  as a feesimple conditional and if they have so take it in the case above cite  a strong the king shall be bind in the case here for in the say case he be  bind notwithstanding he claim in right of the crown but here the estate vest  in king Henry in his body natural and in his singular capacity as it be say  before and not in his body politic in which case he shall n t have his  prerogative in such latitude as he shall in thing which he enjoy in his body  politic as king but this here vest in a more inferior degree and more distant  from prerogative for which reason it seem to they that the alienation of king  Edward shall not Plowden er p prejudice the Lord Berkley but that his entry be  lawful and that the plaintiff shall be bar on the contrary it be argue by the  say other sergeant of counsel for the plaintiff and first they admit that the  king have a double capacity and that both remain in he at one same time and  that he may take in the one or in the other accord as the gift be make to he  and although it be so yet here king Henry take the remainder in his body  politic for it be limit to he by the name of king Henry so that it be not  Henry only but king Henry and he be name by the name of his body politic as  well as by the name of his body natural and he have heir as well in the one  body as in the other so that the word be indifferent put and he may take it in  the one as well as in the other but every gift shall be take most strong  against he that give it and most large for he to who it be give and if the  body politic be more large than the body natural then it be more beneficial  for king Henry to take it in that than in the other capacity accord to the  argument make on the other side for they agree that in this body he have a  great prerogative and great liberty than in the other and if it be so it be  more beneficial for he to take the land in the body politic than in the other  and therefore upon this account he shall be take to receive it in that body  because the law adjudge it best for he but they say it be not necessary to  rest upon this point for although the law shall adjudge that king Henry take  it in his body natural and not in his body politic yet they say that he be not  void of prerogative in regard to thing which he have in his body natural but  he shall have prerogative and liberty here admit that he take the land in his  body natural to have a feesimple conditional and to have power to alien post  offspring encourage as he shall have have if he have take it in his body  politic b see ante oh and the book there cite b for when the body politic of  king of this realm be conjoin to the body natural and one body be make of they  both the degree of the body natural and of the thing possess in that capacity  be thereby alter and the effect thereof be change by its union with the other  body and do it remain in their former degree but partake of the effect of the  body politic c m h b Fitzherbert parliament bro   Litt a   a calvin case Mod  finch finch wing Max ring pl post g c and therefore it appear in h that the  same king Henry be attaint by parliament and it be there agree by all the  justice that eastern instance that he take upon he to be king he be a person  able and discharge of the attainder and the reason thereof be because the body  natural and the body politic be consolidate into one and the body politic wipe  away every imperfection of the other with which it be consolidate and make it  to be in another degree than it shall be if it be alone by itself d m Edward  pl Fitzherbert office bro feoffm all use d so Welsh say where king Richard be  feoff to the use of other and afterward take upon he the royal estate the law  be take that the use be go and therefore a Act be make in the first year of  his reign cap that the land shall be in fee in the beneficiary and use and the  cause why the use there be go by the commonlaw be not because the capacity of  his body natural be drown by the dignity royal for this capacity remain after  he be king and in this capacity he hold the land afterward but the reason be  because to the body natural in which he hold the land the body politic be  associate and conjoin during which association or conjunction the body natural  partake of the nature and effect of the body politic e that the king can it  stand seize to a use t Edward b Fitzherbert feoff bro feoffm all use die pl  kelw a roll Abr c pl roll r Poph cro I jenk pl lane Hardr Mod Crompt I a Bac  read on stat of use pale yellow law of use c Bac Abr post f but see vern where  the master of the roll say that he take the king to be in nature of a trustee  notwithstanding the general receive opinion to the contrary e and the body  politic can be seize to a use no Plowden er p more can the body f S p Bac read  on stat of use f natural during the time they be together for it be draw to  the quality and effect of the body politic which be the great for Richard take  abstract from king do not hold the land but Richard be king hold it who may  not so debase himself as to have land to the use of another so that the body  natural by partake of the other be not in the same degree as it shall be if it  be disjoin from the other and the like of the land which he hold in the body  natural for Bendloe say g Litt finch finch g as a villain that purchase  freeland shall make it to be villainland accord to the nature of his person  who hold it h ibidem h so e turning the person of the king which be most free  and have the most prerogative and franchise shall make the land which he hold  to ensue the nature of his person and to be demean accord to his privilege I t  Edward b bro incident I and he say if the king purchase a manor to which a  franchise be appendant and afterward alien the manor the franchise shall not  pass and so Plowden he say Thorp hold in Edward in a quare hinder and the  reason be because notwithstanding that the king purchase the manor to he and  his heirs and that it shall vest in his body natural yet to this body the body  politic be annex which will not suffer the franchise to be in be which case  prove that although the body natural of the king be distinct in capacity from  the body politic yet it do not remain distinct from it to all other purpose a  f n b g bro prerogative tenant in common finch a so if the king in his body  natural and another purchase land in feesimple joint they be not jointtenants  but tenant in common between who survivorship shall not hold place and so if  the purchase he before he be king after he be king the jointure be sever but  if the king in his body natural be to all purpose as a common person be in his  body natural then he may hold in jointure with another whereas no body politic  can hold in jointure and therefore when the two body in the king be become as  one to which no body be equal this double body whereof the body politic be the  great can hold in jointure with any single one b m Edward a Fitzherbert grant  bro distress prerogative finch finch b so Bendloe say if the king have a  signiory in his body natural he may distrain for the arrearage thereof in all  the tenant land hold of other by reason of the accession of the royal estate  to his natural body so he say if the king in his body natural before he be  king or after purchase land in feesimple upon condition and the condition be  break the feoff can enter upon he for the condition break as he may if the  estate royal be remove from his body natural c h h pl more S c cite but there  misprint h Crompt I c a ante a post Q c and Puttrel put the case in h where  the king as heir of the duke of Lancaster bring a to know facias to have  execution of land and in the writ there be the clause quod non to let go near  aliquan freedom and the writ be challenge because these word be use in writ  where the king demand as king a thing which belong to the crown but the writ  be award good notwithstanding that the possession of the duchy be sever from  the crown by parliament so that although he there demand the land in his  natural body he have benefit of his body politic and thereby he maintain the  writ which he shall not have do if the body politic have be disjoin from the  body natural wherefore it appear by these case that although it shall be admit  that king Henry take the remainder in his natural capacity nevertheless he be  not destitute of prerogative in this case but by the conjunction of the body  natural with the body politic of king of this realm and the estate royal he be  advance and shall have his privilege and his election to have a feesimple  conditional or power to alien after issue have as he shall have have if he  have hold it in his body politic so that if the body politic of the king if  the king have take the land therein may have have a election to have a  feesimple or power to alien after issue have in the same manner he shall have  here though he take it in the body natural and this be the only point that  remain Plowden er p to be discuss and as to this true it be that before the  statute de gift conditional d see ante d and the book there cite d all estate  of inheritance be feesimple absolute or feesimple conditional and the  feesimple absolute be as it be before recite and the feesimple conditional be  that which we now call a estatetail videlicet when it be limit that the heir  who shall inherit the estate shall issue of the body of one or two person  certain name which estate be call conditional for the cause show before e see  ante h and the book there cite e and because these estate be feesimple no  remainder can be appoint over upon the determination of they f see ante I and  the book there cite f for a remainder can be limit over upon a feesimple  precedent g see ante g and the book there cite g and therefore a formedon in  remainder to claim a remainder upon such a estate end lie not at the commonlaw  nor before this statute h ass pl bro Mortdancestor tail latch booth post m h  and the heir shall have have a assize of mortdancestor before this statute  against a abator in all case after the death of such tenant of a feesimple  conditional I h bro tenant per Copy b n g f n b Inst bendl Gouldsb Brownl Poph  Rep tempt holt finch finch Curson Bac Abr vin Abr title formedon b pl I and  there be no formedon in descender at the commonlaw but in one special case in  which by Bendloe it lie at the commonlaw and there the assize of mortdancestor  will not serve the issue and that be king S p Brownl bendl finch finch vin Abr  title formedon b pl see m Edward Fitzherbert formedon   Litt b   a booth king  if a man have issue a son and his wife die and afterward he take another wife  and land be give to he and to his second wife and to the heir of their two  body beget and they have another son and the wife die and afterward the father  die and a stranger abate there he say before the statute the son can not have  a assize of mortdancestor die pl finch finch vin Abr title Mortdancestor b pl  for one point of the writ be to inquire if the demandant be next heir to his  father and that he be not but the old son be his next heir for which reason  such writ will not serve upon his title and therefore before the statute he  shall have have a formedon in descender which be no other than a writ find  upon his case so that by he a formedon in descender lie in this special case  at the commonlaw before the statute de gift conditional and to prove the same  he cite the book of Edward but yet be say this writ be to recover a feesimple  so that all such estate be feesimple that be feesimple conditional m see ante  king and the book there cite m and after issue have the donee have power to  alien and thereby to bar as well the issue as the donor if issue have fail and  this the statute rehearse and the maker of the Act intend to relieve both the  one and the other in this point and therefore it have ordain that the will of  the giver accord to the form in the deed of gift manifest express shall from  henceforth be observe so that the purview be that the will of the donor shall  be observe and therefore the donee can alien to bind the right of the issue or  of the donor and so the statute restrain the power which the donee have by the  commonlaw but although the purview be general videlicet that the will of the  giver c shall be observe c without any exception in the word yet there be a  exception in the intent which in the exposition of the Act be as strong and  full as if it have be express mention and that be that the king be except n  that the king be not bind by statute of restraint unless he be special name  finch finch Crompt I c b n for it be usual for the legislature in act of  restraint which they intend to bind the king to name he express and if he be  not express name it have always be take heretofore that the legislature intend  only to bind Plowden er p the subject and to make the Act extend to they and  not to the king for he be favour oh roll r godb oh in all exposition of act  and because it be not a Act without the king assent it be to be intend Plowden  that when the king give his assent he do not mean to prejudice himself or to  bar himself of his liberty and privilege but he assent that it shall be a law  among his subject and so inasmuch as the Act be make by the subject who it be  to be presume will not restrain the king and also by the king himself who can  be presume to mean to restrain himself the expositor of act heretofore have  well collect from the intent of they that the king shall be exempt out of the  general word of restraint unless he be express name and restrain a t h a roll  r W Jones show show p c Bac Abr and therefore by Keble sergeant if a Act of  parliament ordain that all wear shall be put down yet the wear of the king  shall not be put down for he be not bind by these general word quod non to be  deny kelw a pl a and so Bendloe say in stoners case in h where the like matter  be debate frowick hold that where the king have a interest at commonlaw and a  statute be make which take away the liberty of all man yet the king and his  liberty be not take away unless he be name in the statute and to prove that  the king be not bind unless he be name in the Act the statute of Westminster  cap be allege by Puttrel which limit how the feoff of the whole land shall  hold and how the feoff of part shall hold and provide that if the tenant alien  part of his tenement the feoff shall hold immediate of the chief lord and  shall be forthwith charge with the service for so much as appertain or ought  to appertain to the say chief lord for the same parcel accord to the quantity  of the land or tenement sell and so in this case the same part of the service  shall remain to the chief lord to be take by the hand of the feoff c so that  hereby it be enact that the feoff shall hold of the lord for the same parcel  and that such part of the service shall remain to the lord to be take by the  hand of the feoff which clause be as much as to say that the lord shall have  for parcel and no more and the clause be general without any exception b f n b  a b and yet it have be take ever since this Act that if the king tenant make a  feoff of part of his tenancy the king shall have all the service by the hand  of the feoff or all by the hand of the feoff c m h pl bro tenor c for before  the statute the law be that the lord may have all the service in every part of  the tenancy and may distrain for they in every part if they be not pay and the  king be not special name in the purview of the Act and therefore he be not  restrain by the Act as it have be expound for the cause aforesaid d Bac Abr d  so he say the statute of Westminster cap ordain that where diverse inheritance  descend at one time hold of several lord by knight service that lord shall  front henceforth have the wardship of who the child ancestor be first feoff  yet this do not restrain the king but that since this statute the king shall  have the wardship where the ancestor hold of he by posteriority as well as he  shall have have by his prerogative before the statute because he be not name  therein and therefore he be not intend to be restrain by it accord to the  exposition of the sage of the law and therefore where the statute or treatise  de Prerogativa king cap say that the king shall have the marriage of heir  within age c whether the land of such heir have appertain to the crown of  ancient continuance or that it come by reason of escheat be in the king hand c  without any respect to the priority of feoff although they hold of other this  be but a affirmance of the king prerogative which he have by the commonlaw  before so he say the statute of Edward de religious devotee which prohibit all  religious man from take land or tenement of any one under the penalty of  forfeit the same c do not bind they from take land or tenement of the king for  the king not be name be not restrain from give land or tenement to they any  more than to any other without any forfeiture to ensue to his patentee upon  such account so he say the statute of marlbridge cap enact that if any Plowden  er p inheritance whereof but one suit be due descend unto many heir as unto  parceners who so have the old part of the inheritance shall do that one suit  for himself and his fellow but this do not restrain the king e f n b c Bac Abr  vin Abr title suit of court b foe e for if land hold of he descend to many  coparceners then all the coparceners ought to do the suit as well after  partition as before and so he say f n b hold in the writ de exoneratione to  cut ad curian for the king not be name be not restrain by the statute but he  shall have his suit of all as he shall have have before the statute but if the  land be hold of another then the old sister only or her feoff shall do the  suit f see ante f and the book there cite f and so the statute of great Charta  cap which say common plea shall not follow our court do not bind the king but  he may sue in the king bench for his debt or in other common plea in which he  be plaintiff g see ante king g and the case before cite of addition in a  indictment be admit to be as it be there vouch but it be say the reason be  because the statute of h cap be that in writ original of action personal  appeal and indictment in which exigent shall be award addition be make so that  a indictment be precise express in the statute which indictment be the king  suit only and therefore the king be plain contain in the word indictment but  not in the other action and therefore it be say that in other action he shall  not be bind by the statute and as in the case above recite the law have be  take that the king shall not be restrain by the act unless he be express name  in they so have it be take heretofore that he shall not be bind by this  statute de gift conditional h f n b l c h and hereupon Puttrel cite the  opinion of justice Fitzherbert declare by he in his naturan narrow places in  the writ of formedon in descender call accuse to hold videlicet I vide contra  post g I that the land entail shall be charge in the hand of the heir for the  king debt due by the ancestor for insufficiency of land in feesimple where  Fitzherbert further say for some say that the king be not bind by the statute  de gift conditional but that he be in like case as he be before the statute  and the writ of the register be there recite whereupon so much may be collect  that the land entail shall be charge king m h bro liver b n c die pl in margin    b   a Davis b roll Abr m pl leys treat of ware c king also Carus say that if  the king be seize of a manor and give a stranger a acre of the manor to have  and to hold to he and to his heir of his body beget without express any  service the grantee shall hold of the king by Plowden knight service in capite  a ass pl bro alienation t Edward a Fitzherbert livery a for in such case it  appear in ass that upon the alienation of the donee without licence the king  seize the land for a fine by judgement which he ought not to have do if the  donee have not hold in capite and if it shall have be so that the reversion be  leave in the king and that the donee be only tenant in tail then of necessity  the donee shall have hold of the king as of the reversion which be not in  capite any more than where a man hold of the king as of a manor b m h bro  livery tenor b n c S f n b king   Litt a roll Abr pl finch b for when one hold  of the king by reason of another thing there it be not in capite and forasmuch  as he shall there hold in capite it be thereby prove that the king for his  advantage videlicet to have a tenure in capite may say that the donee have a  feesimple conditional as he have before the statute de gift conditional and  that he be not bind by the statute and there be no doubt but that for his  advantage he may also say that the donee have only a estatetail and that the  reversion be in he but in that he may claim a tenure in capite therein it be  imply that the king shall say that the donee have a feesimple conditional and  that he be not bind by the statute de gift conditional but that to claim a  signiory or such other advantage he be at liberty as he be before the statute  c contra ante c post c c so if the king tenant make Plowden er p a gift in  tail and the donee die his issue be within age he shall be in ware to the king  and so it seem by the book of d p h per hale per June d if before cite but the  reason why the king have not the ware there but the donor be e vide contra  post d e because the king have always accept the service of the donor and so  have choose he for his tenant but if he have not do so it be say it seem by  the book that he may well enough have have the wardship of the issue of the  donee because he remain as to the king tenant of a feesimple conditional and  yet admit that the king if he have not accept the donor for his tenant can not  have have the issue of the donee in ware and also admit that tenant in tail  until the statute of h shall not forfeit his land to the king for treason and  admit the other like case put on the other side yet they be not like the  principal case here for in those case the king take his title under the title  of a subject videlicet of the tenant in tail who be once bind by the statute  when the tail be in he and therefore in that case there be great reason why  the king who claim by wardship or for treason or upon other such ground under  his estate shall be bind as he be but here there never be any estatetail in a  subject for the estate be first limit to the king himself in which case there  be more reason to give the king who take the estate in remainder immediate the  liberty which he have before the statute videlicet to have a feesimple  conditional and so to make the remainder void than there be in the other case  where the king take his estate by other who the statute once bind as subject  and where he have no interest but under their estate so that the reason of  those case differ great from the reason of the principal case and they be  strong against the king than the principal case be and therefore for these  cause it seem to they that king Henry may at his election take the estate as a  feesimple conditional in which case the remainder be void and after issue he  have power to alien and the alienation of king Edward be a election that he  and king Henry and Henry will take the estate as a feesimple conditional and  so the Lord Berkley have no title or right of entry and consequent the  plaintiff shall recover f m Edward pl m Edward Fitzherbert Resceit Inst roll r  Bulst finch finch post f and note Carus say in his argument that if the king  tenant for the be implead and make default after default the king shall not be  receive by the statute of Westminster cap because if he shall be receive the  demandant shall count against he de to make new for he be in the place of  tenant g m h b per Fineux h h a Fleta lib cap   b Stamf prerog b finch finch  post g and he say a man can count against the king but he ought to sue to he  by petition and therefore although the statute give receipt general to he in  reversion yet the king be not mean therein for it be not the intent of the  statute to debase he so much as to make he stand to defence as tenant in the  suit in the same mariner as a common person be and he say that in h m Edward  Fitzherbert Resceit h Edward it be adjudge accord videlicet in a to know  facias upon default of tenant for life the king in reversion send his writ to  be receive by his attorney and his sergeant and the court be there advice that  the king be not receivable causan how above afterward in Trinity term  Elizabeth the justice argue upon the matter in law as follow Weston justice it  seem to I that the plaintiff shall recover first of all it be to be consider  how the estate which we call a estatetail be before the statute de gift  conditional and how it be since and second how the remainder vest in king  Henry and last if he be restrain and bind by the statute I see ante d and the  book there cite I and by the commonlaw before the statute de gift conditional  there be two estate of inheritance the one a feesimple absolute as where a man  have land to he and to his heir general and the other a feesimple conditional  as where a man have land give to he and to his heir of his body which estate  to he and to his heir of his body be great than a estate for life for the word  heir Plowden er p make it great than for life so that if he have alien before  issue the donor shall not have enter for a forfeiture as the lessor king Litt  king shall do upon the feoff of tenant for life nor shall he have have a writ  of error upon a erroneous recovery against such a donee as a man shall have f  n b c e a upon a erroneous recovery against his tenant for life nor shall he  have have a writ of ad boundary who praeteriit if he have die without issue  for he have a feesimple though this feesimple be upon condition as the statute  term it videlicet that if the donee die without such issue as be limit then  the land shall revert whether the donor have express the same by word in the  deed of gift or not for if he have not express mention it yet so much be imply  in the gift and the law supply the word if they be omit in the deed of gift  and if the Plowden word be express in the deed of gift yet it be not a  condition in deed but only a condition in law because the c   press mention of  it will have be mere surplusage for there be no condition in deed but what may  be break during the estate give whereas this condition can not and therefore  it be a condition in law and condition in law be of two sort the one determine  the estate t see Litt   b a finch finch post g t as a lease to a abbot during  the time that he shall be abbot or a lease to one during the time that he  shall be sergeant at law or during the time that he shall live single for in  these case if he be remove from be abbot or sergeant at law or if he take a  wife the estate be end the other condition in law do not determine the estate  as the law add a condition to the estate of tenant for life that he shall not  do waste nor make a feoff and to the tenant in feesimple that he shall not  cease or disclaim but if they break the condition the estate be not determine  until suit or entry be make but in the other case the estate be determine  present and the possession be east upon the lessor and in such degree be the  condition in law in our case before the statute for if the donee have die  without issue the condition be break and the estate determine and the freehold  cast upon the donor but although for default of issue of the donee the land  shall revert to the donor u see ante king and the book there cite u  nevertheless if the donee have issue he have power to alien and thereby the  issue be bar of the land and the donor of the reversion if issue fail as the  statute show which thing be now redress by the Act and the Act be restrictive  in three point the first be where before the statute the donee have power to  alien after issue have as it be say above and thereby to bar the issue and the  donor of his formedon in reverter now this liberty of the donee be restrain so  that upon such alienation the issue shall have a formedon in descender and the  donor a formedon in reverter if the issue fail and by such suit the alienation  shall be defeat and the land take from the alienee the second be ten that in  this case the second husband shall have be tenant by the courtesy before the  statute see p Edward in c b rot Edward itin cornub Fitzherbert formedon bro  estate Inst and but finch and post c per a brown I be to the contrary for that  the issue be not inheritable to the land ten if the gift have be to husband  and wife and to the heir of their body beget and the wife have survive there  her second husband if he have issue by her shall have be tenant by the  courtesy which be now that finch finch that restrain the three be z   Litt a b  Inst bendl copyholder case finch Curson post c z where the estate of the donee  before the statute be a feesimple now by the operation of the Act and by the  intent of the maker of it the estate be abridge and make a estatetail and the  feesimple be in the donor and the reversion make of it and the feesimple may  now be give over in remainder so that the estate be divide and whereas the  donee have he whole estate before now by the effect of the statute he have but  part of it so that there be great restriction make by the statute and thus be  the estate before and thus be it since the statute as I apprehend Plowden er p  then as to the second matter the king have two capacity and he come to some  thing mere as king as a Edward Fitzherbert coroner p Edward Fitzherbert ibidem  expose vocab finch finch cowel Inst post f a treasuretrove b ass pl bro  escheat h a per fortescue post g b land escheat for treason and the like and  to some other thing he come not as king as if land descend to he from any of  his ancestor but here the remainder be entail to king Henry so that there be  both the name of baptism and the name of his body politic videlicet king c in  Abr title prerogative you d pl ante d c and he may take in his body politic as  king to he and to his heir or as king to he and to his successor for he may  have heir in his body politic and he may have successor in his body politic  and therefore a gift to he his heir and successor be good to the body politic  in both the limitation for if the heir fail it shall go to the successor and  his heir as heir to the king may take in their body politic for there be  distinction of body politic that be to say between those which be make by the  king letterspatent and those which exist at commonlaw for those which be make  by the king letterspatent as dean and chapter and mayor and such like can  purchase in succession by the name of heir but only by the name of successor  but the body politic of the king be a body politic by the commonlaw which may  take in the politic capacity by the name of king to he and to his heir or by  the name of king to he and to his successor and notwithstanding this be so d  ante d yet his capacity to take in the body natural be not confound by the  body politic but remain still and here the remainder be entail to king Henry  by the name of king Henry and to the heir male of his body beget and by this  limitation it vest in his body natural because this body be distinguish in the  limitation for no other heir but such as be beget by the body natural shall  inherit the land by this limitation but notwithstanding it be so that he take  the estate in the capacity and person of the body natural yet it be to be  consider that to this body the body politic of king be annex and both of they  be together in he e see ante king and the book there cite e for a man can by  any mean make liver to the king of land which he limit to the body natural of  the king f t Edward Fitzherbert feoff bro feoffm all use ante e and the book  there cite f and a gift to the king can be to a use by Edward because he have  the body politic of king in he and none can distrain for nor have execution of  a signiory or rend in the land of the king which he take in the capacity of  his body natural nor can the king part with such land but by letterspatent and  if he grant such land in fee the grantee shall hold of he in capite by knight  service ergo the body natural and the body politic be not distinct but unite  and as one body and the land which he take in the capacity of his body natural  he have not mere as a common person but as a natural man and as a king also  and as to such land he shall have the prerogative of king because the royal  estate be conjoin to the person who hold the same then as to the three point  it seem to I that the estate shall be adjudge a feesimple conditional in the  king and that the remainder shall be void and that the king shall not be bind  by the statute de gift conditional for inasmuch as all justice tranquillity  and repose be derive from the king a S the fountain thereof the law show he  special favour in all his Plowden business and thing as be the cause and  origin thereof a Brownl cowel Inst ante b a and the law of this land be divide  into three part videlicet commonlaw custom and statute in each of which the  king have his prerogative and exemption for in the commonlaw b godb Pollexf  ante I and the other book there cite b the grant of every common person be  take most strong against himself and most favourable towards the grantee c t h  la Pollexf Bac Abr vin Abr title prerogative c pl c but Plowden er p the king  grant be take most strong against the grantee and most favourable for the kin  although the thing which he grant come to the king by purchase or descent and  this be prove by the treatise de Prerogativa king cap which be only the  commonlawin this point videlicet d m r pl t h a b h Edward b per Thorp bro  patent foundation law see   b d that by the king grant of a manor a advowson  appendant shall not pass without special word e m h pl Fitzherbert prerog bro  choose in action m Edward pl Fitzherbert grant bro choose in action h h bro  patent die pl finch cowel Inst vin Abr title prerogative m b pl e so the king  may grant a choose in action but another can so if part of a thing entire come  to the king the commonlaw give he the whole f see post e and the book there  cite f as if a obligation be make to two and one of they be outlaw the king  shall have the whole duty so he shall have a entire ox or horse which the  person outlaw hold in common g Bac Abr but see this opinion deny to be law  post per a brown I roll r hob die p in margin and see   a Baskervilles case  adjudge contrary g so if one grant to the king the next avoidance of ail  advowson although a stranger present when it next become void and his clerk be  in by six month and afterward die yet the king shall present when he please  because no one Tempes to run up king and therefore he may take the presentment  when he think proper h Bac Abr but see this opinion deny to be law post per a  brown I roll r h so if one grant to the king all presentment which shall  happen within year if ten presentment happen within this time and a stranger  present to they all and his clerk be in and die the king after the year shall  have all the presentment for the latch of not present shall not hurt the king  but he may take it when he will I m h a per Litt bro descent godb Bac Abr I  and if a right of entry descend to the king the die seize of the seize shall  not take away the king entry for latch shall not prejudice he king see post b  and the book there cite king so if his villain alien his land the king may  enter when he please causan how above p Edward of pl Fitzherbert prerog bro  and the king declaration in a quare hinder shall not be double by allege two  presentment m t h b per curian m or twelve matter in bar and the other shall  answer thereto and the king may take issue upon it when it please n h h a per  Keble bro prerog traverse per c m h a per townsend bro prerog n so if the king  title be traverse by the party the king may maintain his title against the  traverse of the other or may traverse the affirmative of the other oh p Edward  a Fitzherbert prerog bro b n c oh so the king may amend his declaration the  same term that it be put in p m h p Fitzherbert prerog bro see ante d and the  other book there cite p so by h the king may wave demurrer and traverse the  plea of the other Q see ante a and b c Q so the king in his writ shall have a  non to let go notwithstanding any liberty for none shall serve his process but  his own officer r h h b Fitzherbert prerog bro guaranty recov in value post d  r so if the king grant land in fee with warranty against all man the patentee  shall not have in value upon recovery without express word to have in value S  m h pl Fitzherbert prerog bro condition Entr congeable roll r Bulst Leon more  latch finch finch Bac Abr ante S so by h if the king make a lease for year  reserve rend with reentry for default of payment if the Plowden er p rend be  in arrear he shall enter without any demand although the king hold the land in  his body natural t m h Fitzherbert prerog roll Abr pl   Litt b Litt r Gouldsb  finch finch t so by h the king may make a lease render rend to a stranger and  this reservation be good and the stranger shall distrain for it or have a  action of debt after the lease determine u see post a and the book there cite  u so by Edward the king may distrain in all the other land of the grantor for  the arrear of a rentcharge grant to he wonder t h b per Hank ei hill  Fitzherbert brief all evesque bro office de court prerog t h a per Fineux p  Edward b per choke f n b e S p a roll r jenk pl pl finch wonder so if title  appear for the king upon plead between other party the court ex duty shall  adjudge for the king although he be not party to the issue all which case show  that in the commonlaw the king have preeminence and prerogative above all  other person and that he be not so strict bind by the law as other be and as  the commonlaw can bind he so can private custom ten m h b Fitzherbert custom  bro prerog more Litt r keb ten and therefore in h there be a custom in London  that if one pledge good he to who they be pledge shall retain they whosesoever  they be until the money for which they be pledge be pay he yet this do not  bind the king where his good be pledge by a stranger that m h b per Haltost dr  Stud lib cap foe Inst more roll r roll r Litt r godb Hardr Crompt I c b that  so a saleof his good by a stranger in marketovert shall not alter the property  nor bind he z m h b per Nottingh bro wreck Inst Bac Abr vin Abr title  prerogative t pl z and where a man have wreck of the sea if the king good be  wreck he shall not gain property thereby against the king m h b pair Litt more  Bac Abr so he who by prescription have good waive or estrays shall not gain  property in the good of the king if they be waive or estrayed h Edward b bro  custom so in Edward one have a hundred of the king in feefarm by reason  whereof he ought to levy the debt of the king and all thing leviable and he  distrain by a bailiff for the king debt and a abbot make rescous and he bring  a action of trespass against the abbot who say that he be lord of the manor of  b and therein have a common park within which manor there be a custom that  when any distress be take within the precinct of the say manor the bailiff who  take the distress shall carry it to the say park of the abbot and he show that  the bailiff of the plaintiff take the distress within the manor and that he  will not suffer the bailiff of the plaintiff to drive the distress out of the  manor and it be adjudge that this custom shall not bind the plaintiff because  the distress be for the king debt so that the custom do not affect the king  which case show that no custom can restrain the liberty of the king and so can  any statute which do it make mention of the king in express term side put that  the king though not name in statute shall take advantage of they as another  shall do as he shall take advantage of the statute of be and of the statute of  r cap of error and attaint for he in reversion upon recovery against their  tenant for life notwithstanding he be not name in they so if the king as heir  to his mother bring a sur who in vita the plea shall not be delay for the  nonage of the heir of the husband but the king shall take advantage of the  statute of Westminster cap notwithstanding he be not name and on the other  band if he be not name in a statute he shall not be Plowden restrain by it as  the statute of great Charta cap provide that none shall be distrain to do more  service for a knight fee or for any freehold than be therefore due upon which  the contra Inst roll r will ne Plowden er p injust vex be find to avoid  encroachment vin Abr title encroachment c pl yet if the king encroach more  rend or service the party shall not have any remedy by this statute against  the king either by petition or otherwise because the king be not name and  therefore he shall not be deprive of the advantage of encroachment which the  commonlaw permit so the statute of great Charta cap ordain that common plea  shall not follow our court but shall be hold in some certain place a t Edward  Fitzherbert prerog   b roll r Bac Abr see ante f a yet in Edward the king  bring a quare hinder in the king bench and it be there object that the say  court shall not have power to hold plea thereof contrary to the statute but it  be award to be maintenable for the king be not precise name in the Act and  therefore he shall not be restrain so in a quare hinder plenarty be no plea by  the statute of Westminster cap so that the quare hinder be purchase within six  month and if it be not then by the intent of the statute it be a good plea b t  Edward b bro quare hinder p Edward pl Fitzherbert prerog bro plenarty t h a  per Prisot Inst c b b W Jones Leon Crompt I c b booth wats finish incumb Bac  Abr b but yet if the king be plaintiff in the quare hinder plenarty be no plea  against he although he do not pursue the writ within ten month but he be at  liberty to pursue it when he will by Edward for the king be not name c   b b  roll r Bac Abr c so the statute of h cap of prescription or limitation do not  restrain the king because he be not mention in the Act from which case it  appear that the commonlaw custom and statute which do it make express mention  of the king exempt the king from all restraint and leave he at liberty so do  this statute de gift conditional which be restrictive in three point as it be  show before that be to say it restrain the donee oh his issue from alien so as  to bar the issue or the donor and it restrain the second husband from be  tenant by the courtesy and it diminish the estate of the donee in all which  three point the commonlaw be otherwise and these restraint be make by general  word videlicet that the will of ale giver accord to the form in the deed of  gift manifest express shall from henceforth be observe c and that the second  husband shall not be tenant by the courtesy without any mention of the king  which be not sufficient to restrain the king as I apprehend and sir here the  remainder be appoint to king Henry and to the heir male of his body and such  estate be not mention in the Act but yet as to the subject it be take see post  I by equity to be within the purview of the Act d S p roll r godb see post d  but as to the king nothing shall ever be take by equity against he in the  construction of a statute also the Act say that the will of the giver c shall  be observe c so that they to who the land be so give upon condition shall no  have power to alien c so that the word only restrain the alienation of they to  who the land be give and not of their issue and here the land be give to king  Henry and the alienation be make by king Edward which be out of the word and  shall not be take by equity against the king for which reason he be at liberty  as he be before the statute and sir if the king shall be restrain he will be  in a worse condition than any other for every one else may suffer a common  recovery and so make the most of the land and bar their issue but no recovery  can he have against the king for no e m h b per constable e praecipe lie  against he wherefore if it shall not be a feesimple in he he will be in a much  worse degree than another for which cause it seem to I that the king be not  restrain by the Act but that he may claim a feesimple which will make the  remainder void and may bar every one by alienation and so the plaintiff shall  recover Anthony brown justice I be of opinion to the contrary and first where  the remainder be limit to king Henry by the name of king Henry it seem to I  Plowden er p to be well limit to he by such name f Litt r vin Abr title  prerogative z d pl in margin f for the king natural proper and full can  purchase by any other name than by the name of king for the name of king have  drown his surname and in the name of king his surname and proper name also be  include and this name of king can be omit in his purchase or in his patent or  writ for it be his name and by it he be know and common call and so in this  statute it be say the lord the king perceive c have ordain c signify by the  name of the lord the king Edward so we say no one time to run up king and a  man shall forfeit to the lord the king and the lord the king send this writ in  these word without express his name of baptism so that the name of the lord  the king contain the king in certain videlicet the king which then be or the  king speak of and although it be usual at this day to say king Henry or king  Edward or king Edward this be but for distinction sake to know what king we  mean for several of they have one same name as Henry or Edward and the  addition of number as first second or three show which of they we mean that  have reign heretofore and it be to no other purpose for the word king be a  name of substance by itself without the name of baptism and this politic name  of king include the king natural name as the name of duke of Norfolk or earl  of Arundel include their natural name and if land be give to Edward or Henry  omit the word king they shall take nothing but e contra if a patent be make by  king Henry by the word the king have grant omit Henry or by the present queen  by the word the queen have grant omit Elizabeth the gift be good and so a gift  to the king or queen omit their name of baptism be good for the natural name  be include in the politic name of king or queen but sir the majesty and name  of the king when they be conjoin with the natural person alter the quality and  degree of the natural person in the eye of the law so that if he be within age  before he shall then be adjudge of full age to all purpose g see ante c and  the book there cite g and if his body natural be attaint before as Henry be  eastern instant that the dignity royal come to it the disability be go for the  great remove the imperfection of the lesser and the body politic have the  preeminence over the body natural so that if land be give to the king by the  name of baptism and by the name of king also as to Henry Plowden the king and  to his heir this shall go in succession as the crown shall go a   Litt b vin  Abr title prerogative you d pl a and if a man that be king by descent on the  part of his mother purchase land to he and to his heir and in the purchase he  be call by the name of baptism and by the name of king also if he die without  issue the heir on the part of his mother who have the dignity royal shall have  the land for the name of king be great than the name of baptism which signify  only the natural body shall have the great preeminence in the purchase and  shall draw the land with it b   Litt b b so if land be give to Edward king of  England and to his heir if he die without issue his brother of the half blood  be king shall have it causan how above and sir although such be the nature of  the king person yet it seem to I that the estate here limit to king Henry vest  in his body natural and that in that capacity he take it for although it be  limit to he by the name of king Henry so that there be as well the politic  name of king as his name of baptism yet the body natural may be signify by  this name of king as it have be say for it include the body natural and the  donor be at liberty to give the land to the one body or to the other and here  he have give it to he and to his heir male of his body which be a limitation  to the natural body that may beget issue for the body politic can beget issue  and by this limitation none shall have the land after the death of Henry but  those who be beget of his body and if it have so happen that after the death  of Henry another have be king who be not issue of the body of Henry it will  not have be reasonable that he shall have have the land for the donor do not  appoint it to he but direct his gift to those who shall issue of the body of  Henry for which reason it can vest in the body politic and go in succession to  he that shall be king whosoever he be for such be not the limitation of the  donor and if the donor Plowden er p intend to give it to the body natural he  can not have use more proper word for they be such as he ought to have use to  a stranger if he have give it to a stranger in his body natural and therefore  it be limit mere to the body natural and in that body it vest because to that  body the donor be please to give it further it seem to I that before the  statute de gift conditional the king may take a feesimple conditional for as  the donor may limit the body of the king to which he will give it and in which  the king shall take it so may he limit the estate that he will give and also  limit how the king shall take it for he may give it for life or for year and  so the king shall take it and not otherwise so he may give to the king and to  his heir upon condition in deed and so the king shall take it and not  otherwise so before the statute when there be two feesimples videlicet one  conditional that be upon condition in law and the other absolute if a gift  have be make the donor may have give either the one or the other and accord as  he limit the gift so and in no other manner the king shall have take it so  that if before the statute the gift have be to the king and to his heir he  shall have take a feesimple absolute and if it have be to the king and to the  heir of his body he shall have take a feesimple conditional and if he have die  without heir of his body it shall have revert to the donor for if he have not  title but by the donor he ought to take it as the donor give it to he and the  donor limit such estate to he and to no other and the gift be the cause of his  have the land it shall rule the manner in which he shall have it and therefore  as it shall have revert before the statute if the gift have be to a stranger  and the stranger have die without issue so shall it have revert before the  statute if the gift have be to the king and he have die without issue for the  donor make the same limitation of the estate of the one as of the other and  therefore he shall have have as large benefit against the one as against the  other and therefore the freehold shall ha e be cast upon he where the king  donee die without issue and he shall have enter without office as well as he  shall have do if any other have be donee and if the king before the statute  have give land to one and to his heir of his body there the king shall not  have have the reversion any more than a common person and such donee may have  alien after issue have as well as he may have do if a common person have be  donor for the person of the king be not to be respect in gift of land but the  quality of the estate be to be consider and the person of the king shall not  rule the estate in the land but the estate in the land shall rule the person  of the king so that before the statute if land have be give to the king and to  the heir of his body he shall have have a feesimple conditional and no other  estate and so it be before the statute then as to the statute it be intend to  redress a mischief and a grievance at the commonlaw c see ante d and the book  there cite c and at the commonlaw there be no estate of inheritance but what  be feesimple but these estate in feesimple be of two sort the one absolute and  the other conditional as have be say and the feesimple conditional be where  land be give to a man to the heir of his body beget and herein the abuse be  after issue have rather than before issue have for before issue have if he  have alien this shall not have bind the issue have afterward nor the donor if  there have be no issue for until issue have the donee have no power to alien  though he have after issue for when the gift be to one and to the heir of his  body they take it that he can not lawful alien until he have such heir and  that if he do alien the donor although he can not enter present after the  death of the donee if he have no issue may have a formedon in reverter for the  gift be to one and to the heir of his body they adjudge it not to be a d post  c d full feesimple until he have heir of his body for when it be incertain  whether he shall have a heir of his body or not they do not take he to have a  full inheritance e S p finch but see to the contrary ante ten and the book  there cite e and therefore the law be take in such case that if the gift be to  husband and wife and to the heir of their two body beget and the husband have  die before issue have and the wife have take a second husband and have issue  there the second Plowden er p Plowden husband shall not be tenant by the  courtesy nor shall their issue the law be so in this point beyond dispute  inherit and if the wife have die the second wife of the husband shall not be  endow for until such heir as the donor have appoint be beget the that take it  that the inheritance be not consummate in he and if there have be two brother  and the one be seize and a descent east and the heir who be in by descent  before the statute de gift conditional have give the land to the brother that  be seize and to the heir of his body beget and he have die without issue the  other brother shall not have be remit because the land do not descend to he a  S you   Litt a see die pl a for although the right of the land descend to he  yet if the possession also do not descend to he he shall not be remit b h a b  Fitzherbert entry congeab bro remitter vin Abr title remitter g pl b and this  be the reason of the case in h where a woman tenant in general tail have issue  a daughter and by a second husband have issue another daughter and she and the  second husband discontinue in fee and take back a estate to they and to the  heir of their two body and die and the land descend to the young daughter and  it be there adjudge that the old be not remit for although she have the right  descend yet she have not any possession descend and therefore she shall not be  remit but in the say first case if the heir in by descent have give the land  to the brother and to his heir and afterward the brother have die r there the  other brother shall have be remit because the land shall descend to he c see  ante king and the book there cite c but after issue have such donee at the  commonlaw have power to alien and thereby to bar the issue and the donor for  by have issue the condition be perform and his inheritance be make more full  post d so that the second husband shall have be tenant by the courtesy and the  issue of the wife and of the second husband shall have inherit if the issue of  the wife and of her first husband have die d m Edward pl Inst finch finch post  e I n d and in Edward in a formedon in descender bring upon the seize of the  three issue of the donee it appear that the donee himself before the statute  be attaint of felony have issue and there it appear that the land shall  escheat to the chief lord of who it be hold for after issue have it be take as  a full feesimple e h Edward Fitzherbert formedon e and in Edward in a formedon  in descender bring by the issue in tail a release of the donee make to the  grandfather of the tenant before the statute de gift conditional be plead in  bar and hold a good bar and herewith agree the book in and Edward so that  after issue have it be take that the donee have power to alien and by the same  reason to do other act to entitle other to the land as the lord by escheat or  the second husband and his issue and the like and because such donee may bar  his issue by his alienation and forasmuch as it be a frequent case and many  have do so the statute do not remedy the alienation of donee make before the  statute but there be a clause in the statute signify that they leave it as it  be before videlicet and it be to wit that this statute shall hold place touch  alienation of land contrary to the form of the gift hereafter to be make and  shall not extend to gift make before which word to gift make before be intend  gift or feoff or alienation of tenant in tail make to other before the statute  and after issue have and not gift make by the donor before the statute for if  one before the statute give land to a man and to the heir of his body and  after the statute the donee make a feoff of it the issue shall have a formedon  of this alienation well enough for the statute remedy all alienation make  since the statute as well where the gift of the donor be before the statute as  where it be after it so that the word to gift make before be not to be intend  of gift make in tail by the donor before the statute but of gift make to other  before the statute by the donee in tail after issue have for such gift be not  avoidable by any and therefore they be except by this clause as the say case  in Edward prove Plowden er p f h Edward pl Fitzherbert formedon bro feoff f so  in Edward the ease be that tenant in tail make a lease for life and afterward  release to the tenant for life before the statute de gift conditional and  after the statute videlicet in Edward the issue bring a formedon and it be  adjudge that it do not lie because the statute except such alienation for  neither before the Act nor b the Act be they voidable by any if they be make  by he who have the tail only and be make full accord to the power which the  commonlaw give he but if they be not then a formedon in descender lie since  the statute g t Edward Fitzherbert formedon   Litt a like case t h Fitzherbert  formedon g for in Edward the case be thus videlicet a woman tenant in tail  take husband and have issue and after issue have and before the statute the  husband and wife alien in fee to a stranger and die the issue shall have a  formedon in descender of this land after the statute notwithstanding the  alienation but if the alienation have be by fine then the issue have be bar by  the alienation so be the book and sir the reason of the case be because the  alienation be not lawful for it be a discontinuance to the wife be covert at  the time of the alienation and when she die the right descend to the issue h  Edward Fitzherbert who in vita f n a finch finch h and he can not have a sur  who in vita unless he claim a feesimple I   b I and the word to gift make  before be to be intend gift lawful and in due manner make by the donee before  the statute and because this alienation without fine be not do so it be not  except by the statute and therefore the issue shall have a formedon and not a  sur who in vita but if the alienation be by fine in which case the wife be  examine then it have be duly make and have bind all from whence it appear that  after issue have the donee before the statute have full power to alien but not  before issue have king   Litt b   b show king and if land have be give to the  king and to the heir of his body before the statute he can not have alien in  fee before issue have for such alienation will have be a wrong in another  person and so shall it have be in the king if it be adjudge a alienation in  fee and therefore he can not do it l p Edward a   Litt b Inst   b   b   b   a    more Davis a roll r Hardr show finch finch ante d post for the king can do  any wrong nor will his prerogative be any warrant to he to do a injury to  another and the estate which the king have will not lawful suffer such a  alienation for his estate be not large nor full enough to permit it and his  prerogative can not alter his estate nor make it great than the donor give it  to he m   Litt b m not but that the person of the king shall sometime change  the course of thing and that not in respect of the nature of the estate but of  the quality of the person n Litt dr Stud lib cap foe cap foe hale hist Com law  n as if a common person purchase land and have two daughter and no son the  land shall Plowden descend to both the daughter a see   Litt a a but if the  king purchase land and have issue two daughter and die have no son this land  shall descend only to the old daughter and that be by reason of the quality of  the king person as it be say before but if land descend to the king and to  another the king shall take only a moiety for if he shall take the whole he  will do a wrong to the other which his prerogative will not suffer he to do b  m h a per moil side robin of gavelk Bac Abr Bac Abr Bac Abr vin Abr title  gavelkind e pl b so if land in gavelkind descend to the king and to his  brother each of they shall take but a moiety c herewith agree   light b keb  side t raym per Twisden I robin of gavelk Bac Abr Bac Abr Bac Abr vin Abr  title gavelkind e pl against the opinion of lamb peramb and of Southcote ante  c but there if the king have two son and die the king Plowden er p moiety  shall not descend to his two son but the old onlyshall have it by prerogative  for there the quality of the person alter the descent but not the estate for  the estate be as it be before whether it be feesimple or feetail so that the  estate shall be in the king as in another and therefore the estate before  issue have be before the statute the same in the king as it be in a stranger  and before issue the donee have not power to alien so that in this point there  be no mischief but the mischief lie in the other point videlicet after issue  have for after issue he have before the statute such a feesimple as he may  indefeasible have give to another d ante d and such as will have make the  second husband to be tenant by the courtesy and the issue of he and of the  wife to inherit and the second wife to be endow and such as he may forfeit e  see ante d post I n e by escheat and such as by diverse other act do by the  donee may be convey from the issue and from the donor all which be contrary to  the will and intent of the donor for his intent be that if the donee have  issue the issue shall have it and none other and that if issue fail the land  shall revert and yet the commonlaw permit he to do contrary to this will of  the donor videlicet to alien and to do other act whereby to bar the issue and  the donor but notwithstanding the commonlaw do suffer it nevertheless it be  not well do but a wrong and some thing the commonlaw do permit to be do which  be tortuous and wrong f m h a per Shelley p h a per askew bro be f as before  the statute which give a action of waste the commonlaw suffer tenant for year  or for life to make waste and destruction of house and wood yet the do thereof  be discommendable and wrong g dr Stud lib cap foe foundation law but the law  be now beneficial alter in this point by the stat of Ann cap by which a action  of account may be bring by one jointtenant against the other as his bailiff  for receive more than his share but note Crompt I c b say it seem that in this  case the party may have a action of account at the commonlaw as well as where  two have a ware or a parsonage and the one take all the profit in which case a  account of the moiety lie for the other but the law seem to have be general  agree otherwise in this case g and if there be two jointtenants and the one  take all the profit of the land the commonlaw permit it and leaves the other  without remedy yet this be a wrong and if the king kill a man there be no  remedy in the law and yet it be not well do wherefore sometime it be not right  but wrong to do that which the commonlaw suffer to be do or for which the  commonlaw have not provide a remedy so be the alienation of the donee after  issue have before the statute de gift conditional a great wrong although the  commonlaw permit it to be do which one may perceive from the letter of the  statute itself which say in all the case aforesaid after issue beget c  heretofore such feoff have power to alien the land so give and to disherit  their issue of the land contrary to the mind of the giver and contrary to the  form express in the gift h   b h and if the alienation be to the disherison of  the issue ergo it be tortuous for to disinherit one be not lawful I show I and  if it be contrary to the mind of the giver then it be ill do king   a show  king for man ought to observe the intent of other in a lawful thing and it be  not right to break it and it be contrary to the form express in the gift it be  not well do for he that have a thing give he in a certain form and accept of  it in that form and afterward break the form do not right so that the letter  of the Act recite that the alienation be a tort and a wrong and the intent of  the donor be thereby violate and his right take away for notwithstanding that  the donee have issue yet the donor have a right to have the land again if the  issue fail and so if there be four descent and the last issue die without  issue the donor shall have have it again before the statute for the feesimple  after issue have be not absolute to this purpose ergo the donor have a right  after issue to take away which by the alienation be a great wrong so that  Plowden er p such alienation after issue have be to the disinheritance of the  issue and of the donor and in violation of the will and intent of the donor  and as such tortuous and injurious be a very great mischief for the full  redress whereof this statute be make and the word which make provision for the  same be these that the will of the giver accord to the form in the deed of  gift manifest express from henceforth shall be observe which word alone  redress the whole grievance and the other word follow videlicet so that they  to who the land be so give shall not have power to alien c as also the other  word videlicet neither shall the second husband of any such woman from  henceforth have any thing in the land so give c by the law of England nor  shall ale issue of the second husband and wife succeed in the inheritance c be  but Inst post b per dyer CJ consequential to the say word of the purview and  be only explanatory and not of substance but of abundance which may well  enough have be omit for if the will of the donor shall be observe from thence  it follow that the alienation of the donee shall not bar the issue and that  the second husband shall not be tenant by the courtesy and that the issue of  he and of the wife shall not inherit for such be the will of the donor for in  that the gift be to the donee and to their heir of their two body beget  therein it be contain that no other but such issue shall have the land by the  will of the donor so that the purview lie only in the say word that the will  of the donor c shall from henceforth be observe which word contain the thing  follow and more but sir although the Act provide that the will of the donor  shall be observe yet there be no word in the Act that divide the estate and  make the feesimple to remain in the donor and the donee to have a lesser  estate than he have before the Act for although the land shall revert to the  donor before the Act this be no proof that he have a reversion for a absolute  feesimple shall escheat to the lord at this day and yet the lord have no  reversion so the reverter of the land to the donor upon condition in law do  not prove that the donor have a reversion for indeed he have no reversion but  the donee have the feesimple and consequent the whole estate but the case be  that the wise sage of the law who have the construction of the statute  immediate after it be make do upon the reason of the statute divide the estate  in order oh fulfil and execute the will of the donor for when Plowden the  statute ordain that the will of the donor shall be observe from thence it  follow consequential that the donee be restrain from alien lawful the  feesimple and from do other act which tenant in feesimple may do and when he  be thereby restrain from do lawful those act which attend a feesimple estate  and from meddle with the feesimple from thence they take it to be the intent  both of the legislature and of the donor that he shall not have a h h b  Fitzherbert tail bro estate p Edward b Fitzherbert tail bro post I king a a  feesimple for it will have be a idle intent to have adjudge the feesimple in  he when he can not lawful do any thing with it and therefore upon this reason  they take it that the feesimple be leave in the donor and yet that the estate  of the donee be a estate of inheritance because the heir of his body shall  inherit it but this inheritance can not be h feesimple for then there will be  two b die pl per Fitzherbert   Litt a roll r bendl croker v Kelsey Carth post  b feesimples of the same land but they take it to be a base estate of  inheritance and give it the name of a estatetail which be a estate of  inheritance certain limit so that upon good reason in order to perform the  will of the donor and of the legislature also they take it by the purview that  the estate be c see ante z and the book there cite c divide and that the donee  have a estatetail and the donor the feesimple which he may grant over to  another or give to another by way of remainder and that he can not do before  the statute for then the donee have a feesimple and one feesimple can depend  upon another for in Edward a man levy a fine sur conusance de law come Ceo and  ill ad de son do and he can not make a remainder over upon such fine because  the gift shall be take d h Edward b per Finchd bro estate in fine fine levy t  h pl Fitzherbert to know facias bro reservation m h b b   Litt b d as a fee  Plowden er p simple but now that the estate be divide the donor may grant the  fedsimple over by way of remainder so that the reason of the purview of the  Act instruct the expositor of it to divide the estate and continual use ever  since have confirm the exposition wherefore the estate be divide by the intent  of the Act without precise word as full and perfect as if the Act have express  divide it e Hardr e for that which be do by the intent of any Act without  precise word be equivalent to that which be do by precise word so that now the  estate be restrain and abridge and alter by the Act and therefore when the  king take the estate he take it restrain and abridge and he can not take it  otherwise for the prerogative of the king be in respect of his person and have  relation to his person and his person shall by prerogative be exempt from  restraint in many case but here the restraint be not in the person but it be  in the estate which the king take for the estate which the donee have at the  commonlaw be a feesimple which be now restrain and abridge and the mischief at  the commonlaw be not in the person of the donee but in the estate of the donee  and therefore the statute be not make in restraint of the person of the donee  but in restraint of the estate of the donee and so the estate be the cause of  the Act and be restrain by the Act which the king can enlarge by his  prerogative without another Act of parliament but in take the estate be be  restrain along with the estate and as to what have be say that the king and  his estate shall be leave at large and that he shall have power to give the  fee as another person may before the Act sir the matter of the Act show the  contrary for the Act show that such alienation be to the disinheritance of the  issue and that which be to the disinheritance of any be a wrong also the Act  say that it be contrary to the will of the donor and that which a man do  contrary to the will of his donor be not well do also it say that it be  contrary to the form express in the gift which also be not well do so that by  the judgement of the Act such alienation be a tort and a wrong and he that  will maintain that the king be in a degree to make such alienation must at the  same time maintain that the king may do wrong and that the law suffer he to do  wrong which none can maintain f   a f and it be a difficult argument to prove  that a statute which restrain man general from do wrong leaves the king at  liberty to do wrong and as to what have be say that the king shall not be  restrain by the Act unless he be special name in the Act sir if I shall be  incline to admit the law to be so yet here he be name g   b g for the Act say  wherefore the lord the king perceive how necessary and useful it be to provide  a remedy in the case aforesaid have ordain that the will of the giver c shall  from henceforth be observe so that the king be name and effectual name as one  that perceive the mischief and see that it be necessary and profitable to  provide a remedy and therefore he ordain a remedy and when he ordain a remedy  for the mischief it be not to be presume that he intend to be at liberty to do  the mischief wherefore the king be name in the Act and so name that every one  may gather from thence that he be content to be bind and that he be bind as  another be and great inconvenience will follow if he be not for by the intent  of the Act the estate be divide as it be show before and the fee be in he in  the remainder videlicet to the right heir of the marquis as it be limit by the  fine and if the king shall have a feesimple conditional then there will be two  feesimples of one same land for the law will not divest the fee out of he in  the remainder for that will be a wrong to he which the law will never do and  two fee there can be by any mean for which reason there shall beno fee in the  king nor in his patentee and as to that which be last say videlicet h see ante  d h that the estate limit to king Henry be to he and to the heir male of his  body and such estate be not mention in the Act and therefore shall not be take  by equity against Plowden er p the king sir I m Edward b Fitzherbert tail ass  pl bro estate tail m Edward Fitzherbert tail Litt see post f I Littleton in  his book have show we a learning touch this point videlicet that a estatetail  to one and to the heir male of his body be take by equity of the say statute  as diverse other estatestail be which be not express in the say statute for  every thing which be the intent of the donor be as full within the statute as  if the thing itself have be precise express for when the statute ordain that  the will of the donor shall be observe it make his will to be a law as well  against the king as against another and forasmuch as it be his will to limit  the estate in the manner it be here limit it shall be good and shall enure  accord and sir if the king will say that the estate be not divide at commonlaw  and that as to he it shall be at this day as it be at the commonlaw whereby he  will have a feesimple and Plowden the remainder will be void by this I say he  destroy his own estate for the estatetail precede his remainder and if it  shall be a feesimple conditional then the remainder of the king will be void a  die pl Curson ante I a for a remainder can be limit upon a feesimple precedent  and if the king will say that his remainder be a feesimple he can say  otherwise but that the estate precedent be also a feesimple for both the  estate be make by one same fine at one same time and both the estate be by the  donor limit to be in tail and the king can say that the one be in tail and the  other in fee for thereby he affirm and disaffirms at the same time that be he  affirm that in the first estate the statute divide the estate and make it in  tail and then in his own estate he disaffirms it videlicet that the statute do  not divide the estate but that it remain a feesimple conditional and by this  mean he will be within the purview and out of the purview in one same matter  and at one same time which he can be but he shall be estopped to say so nam  who perceive just to discern by sense debet et onus and also by such  affirmative he will in part of the estate destroy the fine by which he himself  claim that be he will destroy the remainder to the right heir of the marquis  and make the fine void for the same for if he himself have a feesimple the  remainder to the right heir of the marquis be void but it do not stand with  his estate to impeach the fine which constitute his estate nor will his  prerogative extend to destroy the remainder in fee to the right heir of the  marquis for thereby he will take away a estate from another and do wrong to  another b see these case so put by Weston I ante g and h note with this  opinion of a brown agree hob roll r die pl in margin   a Baskervils case b and  therefore I deny the case put of a next avoidance grant to the king or of the  grant of all presentment which shall happen within year for after the next  avoidance or the year pass the king shall not present for the grantor do but  grant that which shall happen within such a time and after that time the law  say that the grantor ought to have the advowson and the presentment which fall  from it and if the king will suffer a stranger to have those presentment which  belong to he he shall not have the presentment which belong to the grantor  after the time elapse for thereby he will do a wrong to the grantor and injure  the estate of the grantor for whereas the grantor only grant the advowson for  year perhaps he may not have any profit of it for or year if the king be at  liberty to present when he please which be very unreasonable and the king  prerogative shall not injure the grantor so much so that for the reason before  give it seem to I that the estate of the king shall be only a feetail and that  he be bind by the statute as well as another c see ante c c and as a proof  that it have be so take before the case of h have be well cite where the  tenant who hold of the king in capite by knight service make a gift in tail  and the donee die his issue within age and it be there adjudge that the king  shall not have the ware but the donor shall have it for the estate be divide  and the reversion be in the donor and the donee hold of he and he shall not be  say as to the kin to have a feesimple conditional and so to hold of the king  but he shall be adjudge tenant in tail and the donor shall be adjudge tenant  to the king and as to what have be Plowden er p say d see ante e d that the  reason upon which the book be so rule be because the king accept the service  of the donor and so take he for his tenant and therefore he be estopped to  take the other for his tenant sir although this be there debate I do it take  this to be the cause of the judgement and such cause will be a very weak one e  f n b b bro estoppel prerogative in fine Crompt I c b to waver in opinion e  for the king shall not be estopped by such acceptance but it appear in the  argument there foe that Martin put a question whether if the king shall have  the wardship of the heir of the donee it shall be by reason of his ancient  signiory or by reason of a new signiory upon the gift and it be there answer  that it shall be by reason of his ancient signiory to which he say that it can  not be for this signiory be by reason of a tenancy in feesimple and as long as  the feesimple continue in the ancient tenant the signiory can be upon any  other person or upon any other estate but upon he so that upon the gift the  tenancy be not change nor consequent the signiory in which case  notwithstanding the gift the donor continue tenant and no other of who he  shall have the ware and upon this reason of Martin take the judgement of he  book to proceed and not upon the other point and this case be so adjudge prove  that the estate be divide as to the king and that the donee do not remain as  to he tenant in feesimple and that the king shall be bind by the Act in this  point as well as another person and so it be prove by the say case of mortmain  before allege f p Edward Fitzherbert petition f so in Edward tenant in tail  with remainder over to another in fee forfeit the land for treason as it seem  and die without issue and he in remainder be receive to sue to the king by  petition but if the tenant in tail shall be adjudge as to the king tenant in  feesimple then the remainder shall have be void as to the king and he in  remainder disable to sue but he be not which prove that the judge then take it  that as to the king he be but tenant in tail and so the king be bind by the  Act g   a Crompt I c a Kitch contra ante I per Puttrel g another like case  know by experience which be that land which belong to William brown my father  be seize into the king hand in the exchequer for the king debt and it be  adjudge that it shall b discharge because the land be entail and my father  have it by descent as issue in tail of he who be the king debtor and afterward  the same matter come again in question in the court of surveyor and I suggest  the same matter in discharge of the land and thereby the land be there also  discharge which prove that the king be bind by the statute de gift conditional  for if the king may have say that the land as to he be a feesimple conditional  then the land shall not have Plowden be discharge wherefore for these reason  it seem to I that the king shall be only tenant in tail and so the remainder  be good and the plaintiff upon the matter in law shall be bar dyer chief  justice as to the matter in law I be of the same opinion and as to the name of  the king by which he may purchase sir if in the purchase he be name only king  omit his Christian name he may well enough take thereby for king be the high  name of honour in this realm which for the greatness of it drown all other  name of honour or dignity which the person that be king may have within this  realm and because there be not nor ought to be more than one that bear the  name of king in this realm the name of king contain certainty enough to  signify who it be that have this name and therefore a purchase by this name  only contain certainty enough and be good enough but I have never see this  name only use in purchase or grant or letterspatent but the practice be to add  the name of baptism also as to say Henry king or Edward king for else it will  be doubtful what king be mean for there have be many king that have have the  same name of baptism and therefore for the sake of distinction and certainty  the Christian name of the king be use to be insert but if it be omit it shall  be good enough and it may be try what king it be Plowden er p further the king  have two body videlicet a body natural and a body politic and he have capacity  both in the one and in the other and the name king contain they both and heir  imply both heir and successor a Bac Abr vin Abr title prerogative z d pl a for  it be but of late time that successor have be add in the king grant and he  that give to the king may give to he in the one body or in the other as the  donor please to limit it but here the gift itself distinguish in what capacity  the king shall take it for the remainder be to he and to his heir male of his  body beget and such heir must come from the natural body for the body politic  can beget issue so that the limitation of the inheritance here to the heir  male of his body distinguish the body in which the donor have a mind that the  king shall take it b that the king shall retain the land which he take in his  natural capacity notwithstanding he be remove from the estate royal finch  finch Bac Abr ante infra d b for if king Henry after the remainder limit to he  have be remove from the royal estate and another have be make king neither the  succeed king nor his heir shall have have the land because the donor limit it  to Henry and to the heir male of his body and if the heir of the other body  shall inherit it it will be contrary to the limitation and will of the donor  for there be not any such inheritance limit by the gift wherefore the gift  here have respect to the natural body of king Henry and to the heir male which  this natural body shall beget and so the capacity and body in which he shall  take it be distinguish and limit in the gift c see ante e and the book there  cite c as if a man give land to a bishop and to his heir thereby he  distinguish in what capacity he have a mind to place the inheritance and in  what capacity the bishop shall take it and as the donor please to limit it so  it shall enure for if he have give the land here to king Henry and to the heir  of his body and of the body of Elizabeth his wife beget such heir and none  other shall take it and land may be entail to the king as well as to another  for king Henry entail the duchy to he and to his heir of his body beget and  the crown be entail to king Henry and to the heir of his body so that the king  may take a entail as well as another and the remainder here vest in the body  natural of king Henry d above b d so that if he have resign the crown to king  Henry yet he shall have hold the land to he and to his heir of his body as  land distinct from and no part of the crown further as to the commonlaw before  the statute if land have be give to a man and to his heir of his body beget  this be not take to be a e see ante d per a brown I e full and perfect  inheritance until the donee have issue of his body for Britton in his book in  the title of conditional purchase cap say that before issue he have but a  freehold and the inheritance accrue by the issue and if he have issue and the  issue die the land shall descend to the f see the contrary m Edward a per  Hussey p Edward b per Brian   Litt a   a roll Abr d pl vin Abr title estate  you pl f collateral heir and of this opinion Bracton seem to be for he say if  land be give to a man and to his heir si haeredes de corpore his to have and  he have issue and die the land shall descend remotioribus heir for as it seem  they take it that by such gift he have only the inheritance upon condition and  when he have issue he have satisfy the condition and then he have power to  alien and then it shall descend to the collaterial heir as other land g  herewith agree finch finch g but as I take it it be a feesimple present before  issue but the have of issue make it more full and perfect than it be before h  ante king h for after issue he have power to alien and thereby to bar the  issue and the donor I see ante d I and it shall escheat for felony as it be  take by pound Edward and by other mean he may disinherit the issue and the  donor which be contrary to the will of the donor and be a hard case as the  statute say and Plowden er p very injurious and unreasonable and thus the  maker of the Act look upon this permission of the commonlaw or this common  error whereby they take it that the have power to alien be a full injury and a  thing against reason and the word after videlicet that it be necessary and  useful to provide a remedy in the case aforesaid have in they a kind of  vehemence purport great necessity of a reformation for that which be necessary  and useful to be reform require to be reform in all and not in part only and  the rest to be leave unreformed and therefore for the full and perfect  reformation of this abuse videlicet as well in the king as in other the Act  have ordain that the will of the giver accord to the form in the deed of gift  manifest express shall from henceforth be observe so that the observance of  the will of the donor be become the reformation of all that be amiss before  and the will of the donor be the effect of the statute and from thence it  follow that the alienation of the donee shall not Plowden bind he issue nor  the donor a h Edward a bro ejection custodiae tenant per Le courtesy finch  finch a nor shall the second husband be tenant by the courtesy nor shall the  issue of he and of the wife inherit b Inst ante per brown I b so that it be  superfluous to express this in the Act for these clause be but consequential  to the first purview and be include in the first purview and only serve to  explain the same for the first purview videlicet the will of the donor include  these clause and many other c m Edward b bro dower finch finch c for the  second wife shall not be endow d Edward Fitzherbert formedon h h b Fitzherbert  tail m h a per row infra S d nor can the donee charge the land with a  rentcharge or other encumbrance e Litt own b infra oh e nor shall he forfeit  the land for felony nor can he do other act to the disinherit of the issue and  all this be include in the first purview videlicet that the will of ale donor  shall be observe for these act be contrary to his will and every thing that be  contrary to his will be reform by this Act as every thing that be his will be  make a law by this Act f m Edward b Fitzherbert tail ass pl bro estate tail m  Edward Fitzherbert tail die pl Litt Curson ante I f and therefore a entail to  the heir male of the body of the donee be within the purview of the Act as it  be take in Edward and in Carbonnels case in Edward f m Edward b Fitzherbert  tail ass pl bro estate tail m Edward Fitzherbert tail die pl Litt Curson ante  I g so a entail to the heir female of the body of the donee and all other  entail be within the purview of the statute because they be within the will of  the donor for as Fleta who write a long time since say in his three book modus  law that donation so that the manner of the gift which the donor limit make a  law to the gift h   Litt a ante h and the three estate limit in the preamble  of the Act that be to say especial tail frankmarriage and general tail be but  put there for example and not as contain all the entail intend in the statute  for the donor may make other entail by his limitation for his will be a law as  to the estatestail I p Edward b Fitzherbert tail bro h h b Fitzherbert tail  bro estate ante a I and where a estate to one and to the heir of his body be a  feesimple before the statute now since the statute it be take in Edward that  he have but a feetail and this be include in the statute although it be not  express as the book say and herein the book say true king ante a king for when  the statute restrain the donee from alien the feesimple or from do other act  which he that have a feesimple may do it be present take that the fee be not  in he for it will be idle to adjudge it in he when he can not do any thing  with it and therefore it be take by collection and implication of the Act that  the feesimple continue in the donor so that he have one inheritance videlicet  a feesimple and the donee have another inheritance of a inferior degree  videlicet a feetail and the name of the estate be take from the certainty of  the limitation of the inheritance as Plowden er p Littleton say Litt Curson  for he say Talliare idem be quod in certainty to put down and because in the  gift it be express of what body the heir which shall inherit shall issue for  this reason he take it that it be call a tail or rather it may have the name  of the French word tailer which be to cut for to dock wood be to cut wood and  because the estate be dock or cut off for before it be a feesimple and now the  fee be cut off from it and the estate thereby be dock cut off or make less it  may well be call a estate tail videlicet a estate dock cut off or abridge and  immediate upon the make of the Act it have this name give it and it be also  take that the reversion in fee be leave in the donor for in the same session  of parliament and in the Act which be the four chapter after videlicet in the  chapter which give the quod ei deforceat it be recite that if one have lose  his land by default he have no other writ to recover the land again but a writ  of right which do not serve for they who have not a feesimple as tenant for  term of life in freemarriage or in feetail in which case a reversion be  reserve there it be provide that such shall have a quod ei deforceat so that  it be there call a feetail and that in such case a reversion be reserve  wherefore they of the same parliament immediate take it that the estate be  divide and that the donor have the feesimple and the donee a feetail and this  construction be gather from the will of the donor for it be to be presume that  he who will not have the donee to do any act that tenant in feesimple may do  do not choose that he shall have a feesimple estate so that by the implication  of the Act the estate which be a teesimple conditional be divide and the fee  continue always in the donor and the donee have a estate tail and therefore  the estate of the donee be alter m see ante h and the book there cite m for  before the statute the issue shall have have a assize of mortdancestor but now  her shall not n m Edward pl Inst finch finch ante d I n and before it shall  have escheat for felony after issue have oh above e oh but now it shall not p  Inst finch p and before the donee shall forfeit it for treason Q m h a  Fitzherbert livery bro treason but this be to be understand accord as the law  be immediate after the make of this statute of Westminster and before the  statute of h cap which have alter the commonlaw in this point Q and now as  appear in h he shall not r   Litt a Inst r and before the donee may charge the  land and the issue shall have hold it charge S above d S but now he can for it  be not the same estate that it be before nor in the same degree then see the  estate of the donee be change and be such as be show before and no other he  king ought to take it so and in such manner as it be and not otherwise for the  king can have any other estate than that which the donor have give he and the  donor have give he such a estate as do not contain the fee and therefore the  king can have the fee for if the donor have give he a estate upon condition he  shall not have have it without condition and so if the donor give it to the  king and to his heir of his body he shall not have it to his heir general for  that be contrary to the estate for the donor have a right to the fee and this  be prove by the word of the formedon in reverter which be which to the donor  ought revert b the form of the gift aforesaid which word ought imply the right  of the fee and as to what be say that the king shall not be bind by the Act  and that there shall not be any restraint in the estate which he take unless  the same be precise express in the Act sir in some case I admit that the king  shall not be restrain by general word without express restraint in the Act and  that be accord to the matter of the Act but in this Act he shall be bind t vin  Abr title tail c foe t for it be make for the furtherance of restitution that  be to say where it be a great abuse that the donee have the power of alien  after issue have which be a common error Plowden be take for the commonlaw  this statute be Plowden er p make to reform the abuse and to restore the  commonlaw in this point to its right and just course which it do by restore to  the donor the observance of his intent so that the design of the Act be to  give restitution a die pl roll r latch Inst side vin Abr title blood corrupt c  pl title to draw tight law a pl a and in restitution the king have no favour  nor have his prerogative any exemption but the party restore be favour b m  Edward Fitzherbert livery h Edward b per Thorp bro livery foundation law die  pl   Litt a   b bendl latch Mod Entr wing Max ring pl b and therefore if the  king restore the heir by livery to his manor the advowson shall pass to he  without any mention of they c h Edward b per Thorp bro livery   b c so if he  make restitution of the temporalties to a bishop knight fee and advowson shall  pass without be mention so also shall it be in case of a restitution upon  petition of another to have that to which the king have no right for where a  thing which the king ought not to hold be restore to the right owner who ought  to have it the word shall be take most strong against the king and his  prerogative shall not hold place nor shall he be favour more than another  person so here the Act be make to restore the commonlaw in this point wherein  it be misuse and to restore to the donor that which be due to he videlicet to  have his will observe where it have be violate by the donee so that there be a  restitution here make to the donor videlicet of the observance of his will  which before be break in which case by the reason of the commonlaw in like  case that happen at the commonlaw the king be not exempt for he who will  maintain it to be reasonable that the king be donee shall be exempt and that  the maker of the Act do not intend to bind he undertake to prove that the  maker of the Act think it reasonable to suffer the king to violate the good  intent of he that give he the land and to break his will and to exceed the  measure limit to he and so to do a injury and this can be take to be the  intent of the maker of the Act but they mean to reform the abuse in all  videlicet as well in the king as in other wherefore as it seem to I the king  shall be include in the Act and his estate shall not be a feesimple  conditional but a feetail upon which the remainder here may well depend and so  it must have seem to the justice before recite in the record who take the slay  videlicet Brian townsend davers and vavisor who be man of great learning and  so also the counsellor of the king and of the marquis must have be of opinion  for if the estate of the king shall be a feesimple conditional it be idle and  in vain to limit the remainder over in fee and the say justice will not have  take such a fine contain estate which can not stand together but they take it  that the estate of the king be but a estatetail and that the remainder may  depend upon it well enough and in this light also it appear to I wherefore the  Lord Berkley now defendant may enter and avoid the lease and so the plaintiff  shall be bar and afterward on the quinzime of saint Martin in the five year of  the reign of queen Elizabeth the justice at the prayer of the Lord Berkley who  have often pray his judgement after their argument give judgement for he  against the plaintiff for the Lord dyer and Anthony brown say that with regard  to the matter of law they continue of the same opinion that they be of at the  time when they argue and therefore they command the judgement to be enter  which be enter as follow the rest of the record judgement and now here at this  day come as well the aforesaid Henry Willion as the aforesaid Henry Berkley  and Richard knight by their atorneys aforesaid whereupon the premise be see  and by the court here more understand it seem to the justice here that the  replication of the aforesaid Henry Willion above plead be insufficient in law  to maintain the aforesaid Henry Willion to have his action aforesaid against  the aforesaid Henry Berkley and Richard knight therefore it be consider that  the aforesaid Henry Willion take nothing by his writ aforesaid but he in mercy  for his false claim thereof and the aforesaid Henry Berkley and Richard knight  may go thereof without day c Plowden er p notam bene by the reporter note in m  Ed a formedon be bring of land give to the father and mother of the demandant  and to the heir of their two body which be alien before the statute de gift  conditional and Thorp say that the demandant can not have a who in vita but  where he can make title in his writ who proclaim be law et heir svan which he  can do unless he claim a feesimple and it seem by he that the heir can have a  writ who proclaim rashly Himself et heir de corpore his to go out which agree  with the opinion of a brown ante foe and with the say book in Ed and note that  Fitzherbert light formedon have abridge a case out of m h pl Fitzherbert  formedon m h as follow videlicet man give land in frankmarriage with his  daughter the donee have issue before the statute the husband give the land to  his daughter in frankmarriage and die and his wife survive until after the  statute and die and the heir bring a formedon and this matter be plead and the  opinion of the court be with the plaintiff wherefore it be award that the  demandant shall recover seize of the land which case also agree with the  opinion of a brown