brown against wiat d Mod sir t Jones Ventris upon a trial at bar in ejectment  upon a lease make by John Danvers Esq there be a special verdict which find  that the June car Henry earl of Danby be seize in fee of the land in the  declaration and by good conveyance in law then make settle the same to the use  of himself for life remainder to sir John Danvers for life remainder to  Elizabeth his wife for life remainder to the heir of the body of sir John  remainder to the right heir of the earl that Elizabeth and the earl die and  that the reversion which the earl have descend to sir John as brother and heir  to the earl that at and before the march sir John Danvers be seize in tail  with reversion in fee afterward may car by indenture between he and Roland  Jewks covenant to levy a fine of the land in question among other to the use  of himself and the heir of his body and for pollexfen default of such issue to  the use of his pollexfen er p right heir subject to and under a proviso that  such lease as sir John shall make for life or year determinable upon life  shall be good that a fine be levy accord that the April sir John Danvers die  leave the lessor of the plaintiff his son and heir of his body who enter and  be seize that the may car it be enact that whereas it be provide by the Act of  general pardon that nothing therein contain shall extend to discharge the land  tenement good chattel right trust and other the hereditament late of sir John  Danvers decease from such pain penalty and forfeiture as by another Act to be  afterward pass shall be declare he be a active instrument in the murder of the  king enact that all and every the manor message land tenement rend reversion  remainder possession right condition interest office fee annuity and all other  the hereditament lease for year chattel real and all other thing of what  nature soever they be of he the say sir John Danvers which he or any other  person to his use or in trust for he have march or any time since shall stand  and be forfeit to his majesty and vest in his majesty actual possession  without office and also that all chattel personal whatsoever of he the say sir  John whereof be at the time of his death or any other in trust for he stand  possess or interest in law or equity shall be forfeit and vest in his majesty  provide and be it enact that no conveyance grant assurance or limitation of  use out of land statute judgement or recognizance have make or suffer to any  person since the may by any of the offender in the Act mention or their heir  or pollexfen by atty other petson or person claim from by or under they or any  of they other than the wife or wife child or child of such person or person or  any of they for money or other valuable consideration to they or any of they  pay or lend shall be impeach make void or frustrate but be in the same  condition they shall have be if this Act have never be make that sir John  Danvers in the deed fine and Act name be all one and the same that his majesty  grant those land to the duke of York who demise to the defendant who be by  force thereof in possession until the lessor enter c in this case the only  question be whether the estate which sir John Danvers have be vest in the king  by the statute of pain and penalty find in the verdict but to the end I may  the better express my self I will make these two question whether a estate  tail be forfeit and vest by this Act whether sir John Danvers or atty other to  his use have any estate which be fortify or vest within this Act first whether  a estate tail be within the Act it must be agree that at the commonlaw after  the statute of Westmin and before the statute of fine h tenant in tail have in  effect but a estate for life for be can not alien nor convey but that his  issue may have and recover the land either by action or entry as if it have be  enact that notwithstanding any act of tenant in tail the issue shall have the  land for the issue come in by the donor paramount nor before the stat h  pollexfen can be forfeit for treason no more than he can at this day for  felony for the estate be so preserve for the issue by force of the statute de  gift that the issue at this day ought to have the land in tail unless by these  or some other statute bar it must also be agree that when statute be make to  take away or bar the right of man or their estate which they have by some old  law or statute they be make by clear certain full and not general word which  may or may not be intend to bar or take away such right nichol case Com b h  concern the attaindure of the Lord Lovel it be enact that he shall forfeit all  his land wherein he have any estate in feesimple or feetaile the stat h be  express that if any fine be levy by any tenant in tail of any land in tail it  shall be a bar the stat h of lease say that he that have any estate of  inheritance in feesimple or feetaile shall make lease and that these lease  shall bind the issue in tail pollexfen er p the land of the issue in tail  after the statute de gift be not subject to the deal of the king incur by the  ancestor and the statute h which make they subject have positive word all land  that shall descend to any issue in tail from a ancestor indebt to the king  shall be charge the statute h which make entail land forfeitable for treason  it be true have not any particular or express mention of any estate in tail  but have word of such clear and perfect meaning that they can be otherwise  satisfy they be that the offender shall lose and forfeit all such land  tenement and hereditament which any such offender shall have of any estate of  inheritance pollexfen my Lord Hobart in Sheffield and Ratcliff case say that  this statute speak full for say be there be but two estate of inheritance  feesimple and feetaile feesimple be forfeit at the commonlaw and therefore the  statute can not intend that neither can these word have any effect but upon  estate tail and therefore say be this be full and direct and not by general  and ambiguous word as in Trugins case general word which have be in statute  since the statute de gift have be in all deed since so construe as not to  destroy the right of the issue in tail the statute de modus to lift up fine  make Edward enact that a fine shall be of such high nature that it shall bar  party and privy yet my Lord coke say although this Act be general yet it do  not abrogate the statute de gift nor bar the issue in tail the statute of  Edward which declare treason say that they shall forfeit their land and  tenement yet these general word say the book shall not toll the statute de  gift nor bar the issue in tail the statute of bring emunir make Edward say  shall forfeit to the king their land good and chattel the statute of  Proemunire make r add the word tenement and say that their land tenement good  and chattel shall be forfeit to the king and in Trugins case it be resolve by  all the judge of England that these general word land and tenement shall not  set aside the statute de gift and therefore a estate tail be not within those  statute and yet these word forfeit his land do import that he shall forfeit  his estate in land in a general sense feesimple or for life but not a estate  tail pollexfen if then it be so that a estate tail shall not be take away from  the issue by general word then to come to this case sir John Danvers the  tenant in tail die in the year and his issue the lessor be in the actual seize  and possession of a estate tail and no offender or criminal that this Act have  a retrospect to the that of march and have relation to the Act of general  pardon make car which general pardon pardon all what be particular except and  the exception as to the land of sir John Danvers rule thus provide that  nothing in this Act contain shall extend to discharge the land tenement good  chattel right trust and other the hereditament late of sir John Danvers of and  from such pain penalty and forfeiture as by another Act of parliament intend  to be afterward pass shall be express and declare then come the Act of car and  recite the former exception and enact that all and every the manor message  land tenement rend reversion remainder possession right condition interest  office fee annuity and all other the hereditament lease for year chattel real  and other thing of what nature soever they be of he the say sir John Danvers  which he or any other to his use or in trust for he have the that march or any  time after shall stand and be forfeit to and vest in his majesty then consider  the word in the exception land tenement and other the hereditament late of sir  John Danvers they be except by Trugins case and the construction which have be  make at all time since the statute de gift if a statute do enact that a  offender for such a offence shall forfeit his land and tenement this shall not  prejudice the issue in tail nor forfeit all estate tail but pollexfen only his  feesimple land but then what will the word and other the hereditament do will  they extend any further I think not for though the word pollexfen er p  hereditament be a word of a large sense and comprehend land commons rend  advowson c yet it have no sense in it to show what estate be mean or intend  either feesimple or any other be no more than the other word land or tenement  be that then which be require it a Act of parliament which against the statute  de gift shall give away or transfer from the issue his estate tail be either  particular word of entailer or such as shall full and plain tantamount to so  much as the word any estate of inheritance in the stat h but in this exception  there be no such word nor any word which take notice of the estate of sir John  Danvers which shall be execute but if the word be any way doubtful by the  express clause of the Act of oblivion this Act be to be construe most  favourable and beneficial for the subject in all court and further this be a  exception out of a general pardon and as the grant or pardon be to be construe  liberal and for the benefit and advantage of the subject so the exception be  to be construe strict and therefore when a Act of parliament say that a man  shall forfeit his land and tenement and a estate tail shall not be comprehend  in it for the same reason in a exception in a Act of pardon which be to be  construe most beneficial for the subject a estate tail by the same word shall  not be comprise or except if the exception in a Act of pardon shall not extend  to a estate tail it will be very strange to construe the Act car of forfeit to  extend further than the exception upon which it be grant it begin with the  exception and proceed thereupon and without doubt it never intend to violate  the Act of pardon pollexfen but if no advantage can be take for defect of word  sufficient to except this estate tail out of the exception yet if a estate  tail shall not for in this Act there be only general word all manor message  land tenement rend reversion remainder possession right condition interest and  all other the hereditament lease for year chattel real and other thing of what  nature soever they be of he the say sir John Danvers these be all general word  and none of they mention any thing of estate or distinguish estate one from  another manor land tenement rend remainder possession be general word and do  not mention express or distinguish what estate be intend in those land and  tenement and the word right condition fee office annuity in this place be  intend of thing not express before but of some other beneflt or advantage of  like nature to right condition fee office or annuity as commons in gross  liberty or the like it do not express or distinguish any estate in land or  tene ments as feesimple feetaile or the like and the residue of the word and  all other the hereditament lease for year chattel real and other thing of what  nature soever they be can be mean of land or estate in land for land be  mention before and therefore these must be other hereditament and other thing  which be not mention before for hereditament in it self signify any thing in  which a man may have a estate of inheritance as dignity annuity profit  apprender out of land or tenement advowson c but no way signify or distinguish  any estate in any of these whether for life year in tail or in fee and  therefore can signify or distinguish one estate from another pollexfen and the  word other thing of what nature be read with the word adjoin lease for year  chattel real of what nature do certain intend other like thing as extent upon  statute or judgement sequestrations power to receive profit until a sum of  money be pay or the like but other thing never be intend to express a estate  tail by that if the word be general and not plain and certain they ought not  by construction to fetch in estate tail and that appear plain by what I have  already say by the case of the statute de modus to lift up fine that the  general word of all fine do not include a estate tail and so by the statute of  Premarin and the express rule and construction which be every where in our  book herewith agree in my Lord Anderson case the statute h which make the land  of tenant in tail Chargeable with the debt of the king the law in this case  will not strain that statute by construction to extend to debt assign to the  king although the word of the statute be general the land of any ancestor  indebt to the king and when the pollexfen er p ancestor debt be assign to the  king the ancestor be certain become indebt to the king next the law will not  by construction extend this statute to charge the land in the hand of the  alienee of the issue in tail the word be that the land and hereditament which  descend in feesimple or feetaile from any ancestor indebt to the king shall  stand and be charge and Chargeable with the payment of the debt now it seem  very probable that the statute by the pen thereof intend to make feetaile land  in equal charge with feesimple it join and couple they together yet the book  say that this statute be introductive of a new law as to pollexfen the issue  in tail and shall not be enlarge by construction in the case of Sheffield and  Ratcliff speak of the stat h of forfeiture for treason be these word that it  be a penal law in a high degree shall not be take strict against the subject  but strict against the king and so have the judge at all time afterward  construe this and other like statute and further upon the construction of this  stat h which forfeit all land tenement and hereditament the word hereditament  be a word as appear by the marquis of Winchester case that extend to right and  also to condition yet upon the stat h the law construe it most strong against  the king and most beneficial for the subject and therefore though the word  hereditament in a large sense comprise right and condition yet it be always  construe to exclude both and to extend to or forfeit neither in that case of  the marquis of Winchester Henry Norris be attaint of treason and after his  death June h by a Act of parliament it be enact that all his land tenement  right condition and all other his hereditament whatsoever which he have or  ought to have of a estate of inheritance or feesimple or feetaile shall be  forfeit and vest in the king this Henry Norris have a remainder which before  the treason commit be bar by a erroneous common recovery so that he have a  right to bring a writ of error for the reversal of this recovery and the court  resolve that this right be not give to the king by these statute and yet the  word of the statute be that he shall forfeit all his land right and  hereditament and all other thing which he have or ought to have and no doubt  he have a right which be a hereditament in he and he ought to have the land  but the law pollexfen construe those statute strict against the king and  beneficial for the subject the statute of the h be that by attaindure of  treason the king shall have the right entry condition and all other thing of  the person attaint the private Act of attaindure of the h mention in Sheffield  and Ratchys case have all the word which be in any of the other act and some  more it be that all land tenement right possession entry condition of what  nature or quality soever the person attaint have it be scarce possible to have  more general word than these yet in this case it be notwithstanding agree by  the judge that a right of action be not give to the king by this Act or by the  Act h so that although the word be as general as be possible in the statute h  as right of any nature or quality whatsoever and in the statute of the h there  be these word all other thing yet right of action be not forfeit to the king  by these general word by which case it evident appear that act of forfeiture  have always be construe favourable for the subject and not accord to the  generality of the word and this Act ought to be construe so too that it be  more reasonable to construe these act large accord to the general sense of the  word than this Act in our case for those statute of Proemunire and the statute  of the and h of treason be make to deter man from commit such horrid crime for  it be presume that a traitor have some natural affection and though he may be  so desperate as to have no regard of his own life yet out of commiseration and  affection to his child and the keep they from misery he will be deter from  commit such fact and this sure be the reason and ground of the commonlaw and  statute pollexfen law in make attaindures and forfeiture and in pursuance of  this reason construction may be make as large and beneficial as the letter  will bear but in our case there be no such reason this be a particular retro  pollexfen er p spective Act the crime commit the offender dead and the issue  in quiet possession many year before this Act make here can be no deferment  for the fact be commit long before and the offender dead and the issue seize  by force of the statute de gift unfortunate but not guilty by the crime of his  father and therefore no such reason to construe this Act so strong against he  as in those case upon the former statute second if then a estate tail be not  within the Act whether any other estate in this case be in sir John Danvers or  any other in trust for he which be forfeit by this Act I conceive not and as  to this point the case be tenant in tail after levy a fine to the use of  himself in tail as before and after come the statute and enact that he shall  forfeit all his land which he or any other in trust for he have whether the  issue of the tenant in tail be bar whether by the levy of this fine be gain a  feesimple I agree that the conusee take a feesimple but such a one as be but  imaginary or instantaneous for a instantaneous fee as I take it be that which  be not real but fictitious and imaginary for a instant be but a imaginary time  as it be say in Fulmersions case eager be One indivisible quod non be time nec  pars time send id ad quod part time connecti and then certain if it be One  indivisible and not a time it be then only in imagination and therefore to say  that he have a instantaneous pollexfen fee be all one as to say he have a  feesimple in fiction of law and not in reality or verity for if a man shall  ask when he be seize in fee it can be answer that he be seize before the fine  levy for that he be not nor after the fine levy for then the conusee be seize  then if he be neither seize before nor after we may well conclude that he have  no real but only a imaginary feesimple and in fiction of law and therefore not  conveyable nor forfeitable in any manner and such imaginary and instantaneous  fee be of no esteem in law the wife shall not be thereof endow and for that  which be say that this fine have make the land subject to all charge of the  tenant in tail as rentcharge statute judgement lease c this be true but it  stand upon a particular reason for those charge be all good and fix in the  land in their creation and avoidable only by the heir in tail come in in  privity to the estate tail by force of the statute de gift and when the  ancestor levy a fine be have thereby by force of the statute h and h bar his  issue to have the benefit of the statute de gift and consequent the issue can  avoid those charge but that be not like unto this case for here the tenant in  tail be not attaint of treason but the fine be the first act there be no  charge precede and the act come afterward sir John Danvers have a estate tail  before the fine and he have the same after and be in the same case as if he  have purchase it of a stranger and next for that which be say that the conusee  have a estate to the use of sir John Danvers in fee the conusee have only a  instantaneous fee he be only a instrument of conveyance a mere conduit but in  truth he never be seize to the use of sir John Danvers in fee but in tail only  for at the same time pollexfen that the conusee take it he take it to the use  of sir John Danvers in tail and no otherwise after that hale have resign and  Rainsford be make chief justice and this case have be twice argue for the  plaintiff by levins and Wallop this argument be prepare by meg but the king  counsel that be for the duke of York press for judgement and the whole court  be of opinion for the duke and the judgement be give accord pollexfen er p  pollexfen term sanct hill intrat car two in b r rot