case murry against eyton and price or the earl OF derby case the statute Henry  c and the Henry c enable a tenant in tail to bar all his issue by a fine with  proclamation levy pursuant to the statute lie c for they be privy to he both  in blood and in estate but such a fine levy by a tenant in tail of the gift of  the crown the reversion in the crown will not bar the issue in tail for it be  protect by the statute of and Henry c although by a private Act of parliament  it be limit to the heir male of the family in a different manner from that in  which it have be limit by the letter patent provide the alteration be all  within the compass of the old entail and the reversion continue in the crown  SC skin SC ray SC Pollexf SC Jones ejectment for the manor of hope otherwise  Queenhope c in the county of flint on the demise of William George Richard  earl of Derby make the second day of may in the second year of Charles the  second upon not guilty plead the juror find a special verdict to the effect  follow Richard the three be seize in fee of this manor in right of the crown  and in the second year of his reign among other thing grant the same to sir  Thomas Stanley afterward earl of Derby and sir George Stanley his son and heir  apparent to hold to they and to the heir male of the body of the say sir  Thomas by knight service and they find the letter patent in haec word that sir  George have issue Thomas Stanley afterward earl of Derby and die in his father  liretime then sir Thomas the patentee die and the manor descend to Thomas the  grand child and from he descend to Edward his son and from he to Henry his son  and from he to Henry and from he to Ferdinand that earl Ferdinand have no  issue male but leave three daughter videlicet Ann marry to Lord chandos  Frances to sir John Egerton and Elizabeth to the earl of Huntingdon that by  the death of earl Ferdinand the manor descend to William earl of Derby his  brother that he enter and be seize in tail male that afterward shower KB for  determine certain difference arise between earl William and the daughter of  his brother earl Ferdinand and their husband on the eighteenth day of November  in the four a dougl shower KB er p year of James the first there be a Act of  parliament make whereby it be inter alian enact that Alice countess of Derby  during her life and after her decease William earl of Derby for his life and  after his decease James his son and heir apparent and the heir male of his  body and for default of such issue the second three four five six and seven  son of earl William and the respective heir male of their respective body  successive and for default of such issue sir Edward Stanley during his life  and afterward his first second three four five six and seven son and the heir  male of their respective body successive and for default of such issue Edward  Stanley for his life and after his decease all his son to the seven and the  heir male of their respective body successive and in like manner James the  brother of Edward for his life and after his decease and all his son to the  seven and the heir male of their body successive shall enjoy this manor they  find further that in that Act there be a proviso that earl William sir Edward  Stanley Edward Stanley and James his brother who have only for their life when  actual seize may make lease by indenture of any term not exceed twentyone year  or for one two or three life or year so determinable reserve usual rend and to  make jointure for their respective wife or old son wife not exceed a three of  the whole and they find further that there be a proviso that the king his heir  and successor except such as have estate by that Act c shall have and enjoy  the same and such estate and estate right title interest reversion rend  service tenor primer seize livery warranties use possession and demand as  before c and they find sir Edward and James to be person inheritable to the  first entail secundum form gift c si c they find Alice die the first of may  that earl William enter and die the that of September that earl James enter  and die the that of October that earl Charles his son enter and be seize prout  law demand that he and the lady Dorothea Helena his wife February make a feoff  and grant execute by livery and attornment shower KB of tenant of this manor  to sir Charles wolsely and other their heir with a covenant to levy a fine and  afterward the that of April levy a fine with proclamation in the court of  grand session for the county of flint of this manor to sir Charles wolsely and  other and their heir and they find that earl Charles afterward December die  that the now earl of Derby be his son and heir and then be of the age of  sixteen year and nine month and fourteen day and that he enter the second day  of February in the twentyninth year of Charles the second and make the lease  to the plaintiff who enter and be possess till the defendant eject he and they  find the Act of and Henry c against feign recovery by tenant in tail where the  reversion be in the king and whether the defendant be guilty they know not but  pray the advice of the court upon the whole matter this case be first argue in  the court of exchequer and the baron be divide two against two the cause be  then adjourn into the exchequer Chamber near difficulty before all the twelve  judge where it be argue on the behalf of the earl of Derby two question be  make first whether the Act of king James the first have so alter the estate as  to render it out of the and Henry c second whether the tail be barrable by  fine by the statute of Henry c for the first it be argue that there be no  alteration in substance for though the countess have now a estate for life she  be dowable before and although here be a liberty for the issue to make a  jointure yet it be but a three part and that their wife may claim in right of  dower before the Act and although there be several estate add yet they be all  of person who be inheritable to the tail and it be but a new mould of it it  remain the same thing in substance the estate tail be the same thing as to  continuance of time there be a very full proviso for the save to the king his  reversion c cite   light that the parliament only new shape the estate and be  not the donor but the king give it by the letter patent and as for the other  point the parliament by Henry c enact fine to be a bar because they think  shower KB that of Henry c do not and and Henry c say it shall be a bar to  common estate tail and not to such shower KB er p who reversion be in the  crown until the reign of Henry the eight estate be not forfeitable for treason  b much less barrable by fine the statute de modus to lift up fine have the  very same word in it as that of Henry c and yet it be never think a bar Mr  holt e contra for the defendant as to the last point that a fine will have bar  the issue by the statute Henry c the word any land or tenement shall else be  void unless to bar the issue for before that statute tenant in fee can have  bar his heir by fine as to the objection that the statute de modus to lift up  fine have not be extend to the issue in tail though it have the word privity  in it he answer that it do not enact but declare the use of a fine at the  commonlaw if the Henry c do bar then Henry c be out of the case and by   light  the king have the reversion the estate tail be bar by Henry c and compare with  more   as to the other point he urge that they be other estate now than before  and be therefore barrable c a fine make a alteration in a estate though it be  the same in its proportion as before much more a Act of parliament d this tail  be barrable because it be raise out of a subject estate and not out of the  king suppose tenant in tail reversion in the king before the and Henry c  suffer a common recovery to the use of himself for life and in tail remainder  to himself afterward come the and Henry c if the remainder fall he may bar his  issue notwithstanding the reversion be in the crown now this estate be raise  by Act of parliament e and the Act of king James quite destroy the former gift  the tenant for life thereby have power which tenant in tail have not as to  make jointure for his own wife and for his son wife and as to the objection  that though this case be not within the word yet it be within the reason of  the and Henry c I answer that this Act be in restraint of alienation ought to  be construe strict as the statute shower KB de gift be always take strict in  those word they may not alien yet they may alien for their life Inst Lord  Chesterfield case Maynard sergeant argue on the same side he wonder the  question shall be revive whether issue in tail be a privity within the statute  of Henry c and argue that since the Act of king James this estate be not  within the and Henry c for the issue in tail in a formedon since that of king  James can make a donor f and the estate create by the statute make in the four  year of James the first be mere out of the estate tail which be before and not  out of the king estate or reversion and the estate give by king James can  never determine so long as the ancient tail remain and therefore not out of  the king reversion the reason of a common recovery be a bar be not for that it  be a common assurance g for at commonlaw there be no falsify by tenant in tail  nay at commonlaw it be a doubt whether it be not so of tenant for life the bar  arise from the statute de gift and Westminster the second in a recovery the  court can judge whether there be a right or no in the person that suffer a  recovery to suffer it or not because be of a inheritance there lie no  falsification which be the reason of a recovery be a bar the authority that  seem against I be Stafford case h the case of warren v smith I Stratfield v  Dover king to which I answer judgement be give in b see brown v wait Mod SC  lev SC vent SC Pollexf SC Jones c bro Abr remitter pl d   roll e   f hob g lev  salk h   I roll Rep to and note this be the same case as Magdalen college case    king cro Elizabeth see also   light a more will Bac Abr Pigot on recov  shower KB er p those case upon the point of plead l Hobart say m that the  judgement in Stafford case be a very oblique and indirect strain it be out of  the word of the statute the design be against recovery only and the word or  any other thing refer to the whole where there be a recovery suffer general  word in a second Act of parliament shall not take away a power which be give  by a former Act as here a power be give by Henry c and Henry c then come Henry  c after it see Edward last case save one and Keilway and Noy there be more  reason they shall provide against a recovery by and Henry c than against a  fine for that a recovery may have operate further than against a tenant in  tail own issue shower KB I do not bear Mr sander or Mr William who argue this  case as do also Mr pollexfen who argument be now in print n nor do I hear the  judge except Mr baron street justice levinz and Lord chief justice Pemberton  street baron oh in Hilary term car argue the same point as to the first that  master Littleton p be express that if the reversion or remainder be in the  king tenant in tail can bar c the contrivance of the common recovery make way  for the Henry c and it be a doubt in the Henry whether the issue of a tenant  in tail of the gift of a subject be bar by a fine Q then come Henry c that it  shall not bar and this law have always have a strong and more favourable  construction than the Henry c and he cite brook r dyer S wiseman v Bunand t  and Jackson v Darcee u which be another express authority that the statute of  Henry c be not a bar ten as to the second point he think that minute thing and  small matter shall not make a alteration none be lot in here into the estate  tail but such who be in ab origin no new person bring in the inheritance go  still with the same family then there be a save to the king his heir c in the  same manner so that the same estate which the king have before he have still  not in the least alter if the king be donor before this Act as certain he be  then he continue so it all do here remain in the issue male of this honourable  family it be true if the crown shall give leave to alien or join in a  alienation or have alien the reversion then the issue may have be bar wiseman  case that I agree that if the reversion have be free but for a hour though  regrant to the crown yet it will not be within and Henry c the nature of a  save be not to create a new right but to preserve a old one and there be no  word in this Act that do divest he of his reversion so that upon the whole  matter I conceive that judgement ought to be give for the earl of Derby shower  KB levinz justice the first question be whether or no this Act of James have  make such a alteration as that it be now become a estate out of the Henry c  second whether such a estate the reversion be in the crown not of the gift of  the king but now as alter by this statute be bar by this fine for the see SC  cro Elizabeth m Macwilliams case hob note this case be not insert in the  quarto edition of hobart report n pollexfen report to oh sir Thomas street  knight be swear a baron of the exchequer on the d April car in the place of  sir Richard Weston who die on the d march precede ray   light   light ray  Jones cruise on fine r bro Abr title fine levy de represent pl S dyer Rep and  the margin l c I Treby refer to the case of ld Nottingham v ld Munson in  Hilary term car in chancery t and u more and the same case Bendloes SC and SC  Leon SC Leon ten see wiseman case   bro Abr assurance pl hob   light cro  Elizabeth   and Lord chandois case   that   SC more SC and shower KB er p  little point that have be start the reversion be in the crown there can be no  discontinuance the statute of limitation be nothing to the case for Charles  can not have enter against his feoff and another thing be the warranty which  signify nothing be lineal and no asset find as to the first point I think and  agree that no estate be within the Henry c but what be of the gift of the king  z and this be such and by the statute James nothing be give but what be within  the patent and no person within the one but what be within the other as there  be no great estate in quantity so be it the same in quality beside this Act be  make to countenance a award and it can not be extend further than the award  itself the nature of every consequential thing ought to be take from its  principal a and these arbitrator have no power to make the land alienable the  word be save to the king his tenure reversion c and then it be they shall be  hold and enjoy which be not proper word to create a estate or to alter one now  shall this Act by a oblique construction come and take from the king that  privilege which Henry c have give he it be common say in our book that the  king grant shall not enure to two purpose b now if the tenure be not alter  then the king continue donor every donee shall hold of the donor I say every  donee shall so do yea even in frankmarriage till the four degree be pass  although he do no service if a alienation be good pray of who do those man  hold they must hold of my Lord Derby for he have the immediate reversion the  power give be only to make jointure which be the same as dower be before and  then they make he tenant for life to prevent waste then for jointure the word  be except the capital message belong to the family we know where the husband  be tenant in tail that the wife shower KB shall not be endow of the capital  message the statute de gift have be construe as large as any statute  whatsoever for more estate have be construe to be tail within it than be  mention there the statute of and Henry c have also be construe large c for all  recovery that have be suffer since have be construe within it although the  word of the Act literal seem to intend only recovery before the Act it have be  object that if my lord be to bring a formedon he must ground it on James and  therefore he be in by that I answer this be a suppositum quod non be supponend  for the reversion be in the crown there can be any discontinuance and  therefore no formedon although there may be a bar but suppose it so if for a  descender or a remainder it may be find on the Act but for a reverter he must  find it on a seize before the Act if my Lord Derby be now to bring a formedon  on the statute they will plead the fine in bar and if he shall reply the  patent of Richard the three that will be a departure from his count and  therefore I think he may bring it on his patent and so disclose his whole case  and I be of opinion that in that case he ought to recover but suppose it a  estate tail by Act of parliament with a reversion in the crown and suppose the  statute of Henry c out of the Act I think the fine no bar by Henry c the  objection be what become then of all the line levy between the Henry and Henry  e I answer that a fine at commonlaw with a year possession and nonclaim be in  effect the same bar with a recovery in a writ of right and possession for a  year and a day and there be then the common exception of infancy imprisonment  over the sea c Inst the statute add nothing of validity but because the fine  be so high a bar it require several solemnities to be add it do not enact the  fine to be a bar but only say because it be so so that as to the bar it be but  declarative of the commonlaw and not introductive of a new law as to the  solemnities Inst a fine be never take to be a bar of a estate tail upon any of  those statute but upon a nonclaim for a year and a day Litt and yet some  shower KB person be bar who can not claim within the year and day as reversion  and remainder thus the law stand for above two hundred year together z see    light Pigot on recovery Mod Bl Rep burr a   Brownl b yearbook Edward pl   e    light shower KB er p that a fine be no bar then come Henry c and enact that  fine so levy shall conclude privy as well as stranger these be the word I can  see by what colour it be say at the bar that that statute be make on purpose  to bar estate in tail for all the rest of the statute be save and solemnities  the statute de gift have not be take strict d estate tail be not forfeit by  praemunire nor be they within the statute of recusancy there be two way of  convict recusant if it be by proclamation his estate may indeed be seize upon  the king election of a three part or by way of distress for twenty pound per  month but when he die his land shall be discharge in the hand of his heir for  the word tenement or hereditament will not reach it but otherwise when convict  by trial on a venire and judgement against he thereupon for then he become a  debtor to the king and thereby estate tail be forfeit to the king by the word  hereditament e the statute of Henry c bar estate tail in plain word tail be  always reckon encumbrance and endeavour to be set at large my Lord coke f say  it bar by both of they but I do not find that there be any settle opinion that  they be bar by Henry c but only by Henry c and I do not see in my judgement  how fine can be bar in any case by Henry c which be not so by the statute de  modus to lift up fine and therefore tail be not within it where the reversion  be in the crown I think the fine can be a bar the enact clause be for all sort  and then the proviso except the king donee can it be suppose that when a  parliament take notice of a doubt whether fine shall be bar that they shall  leave it as much a doubt as before and therefore I think they take it to be no  bar Stafford case g be not sole adjudge on the general word of Henry c but on  the Henry c other way or mean shall extend to low but not to any thing of high  degree than what be mention before h a shower KB fine be above a recovery and  a old commonlaw bar and therefore can be within the word other thing or thing  the case in dyer and be the gift of a common person in bro assurance bro title  fine de earth it be a contemporary opinion and he in all probability be privy  to the make of the Act   there be my Lord coke in his report against my Lord  coke in his institute in Stafford case I and the case of little v motley king  there be not one word in it of Henry c for my part I do not rest upon my Lord  coke reason of discontinuance I be of opinion that judgement ought to be for  the plaintiff Pemberton chief justice in Hilary term car argue this cause a  copy of who argument from his own manuscript be as follow in this case the  general question be whether this fine with proclamation levy by earl Charles  have bar the lessor of the plaintiff be son and heir male of the body of  Charles and also heir male of the body of Thomas the first donee but this have  be consider under two more particular question first whether the statute of  Henry c whereby it be enact that fine levy with proclamation in such manner as  by that statute be direct shall be a final end and bar as well to privy as  stranger except such person who interest or estate be preserve by the salvo or  exception therein contain extend to enable tenant in tail in any case to bar  their issue second admit that a tenant in tail be enable by the statute of  Henry to bar his issue by fine then whether this manor be original of the gift  of the crown to the ancestor of earl Charles with the reversion leave in the  crown and so protect from be alienate from the issue by the Henry c be now set  at large and the estate so alter by the Act of parliament make in James as  that it may be bar by the fine of earl Charles or as some that have argue have  put it in other term whether the statute of James have destroy the first  estate give by Richard the three and create such new estate of this manor  shower KB in the family of the earl of Derby as that now a fine may bar the  issue in tail this I take to be the substance of the two question make in this  case and I shall d   e yearbook Henry pl brook Abr tail Hobart dyer f Inst g    h   I   king Savil shower KB er p follow the same method and in deliver my  opinion shall consider they both I shall first state the first question as it  relate to the case in hand the statute of Henry c make fine to be a final end  and enact that they shall conclude privy as well as stranger except c then  come the statute of Henry c and take notice that there have be some doubt  whether by the statute of Henry fine will bar estate tail for settle this  point enact that fine levy accord to the statute of Henry c shall be a good  bar of estate tail but in this statute of Henry c there be a proviso that this  statute shall not extend to intails make by Act of parliament so that the  estate of earl Charles be a estate tail make by Act of parliament in the four  year of James the first and not within the statute of Henry c do remain still  in be notwithstanding the fine of earl Charles unless the statute Henry c  enable a tenant in tail to bar his issue in tail by a fine and as to this  first question I be of opinion that this statute of Henry c do enable a tenant  in tail to bar his issue by a fine with proclamation levy accord to that  statute I be not ignorant that there have be great variety of opinion concern  this matter the many book that have be cite by those that have argue on either  side sufficient testify this and I will not say but there be room enough for  doubt and difference of opinion concern this matter from the pen of that Act  it have be make a question in this case whether the issue in tail be include  in the word privy and sure methinks they be there be always a privity of blood  between a tenant in tail and his issue of necessity l and there be a privity  of estate that enable the issue to bring a writ of error or a formedon in  descender he must make his title by his ancestor he be subject to his warranty  if he have asset all which show he to be privy and so be the book dyer Hobart  in Macwilliamss shower KB case Inst and many other book but I do not take the  doubt to arise mere upon this whether issue in tail may be comprise within the  word privy in the enact part of the statute for the purview of the statute be  in general word videlicet and the say proclamation so have and make the fine  to be a final end and to conclude as well privy as stranger now whether the  issue be within the word privy or not yet certain they be within the  generality of those word for they extend to all the king subject of what  condition quality age or sex soever and all have be bind by it as it be hold  in dyer in case there have be no salvo so then the matter of the doubt arise  upon this whether the issue in tail be not within the benefit of the three  salvo of the interest of such to who any right shall come after the levy the  fine before this statute if tenant in tail have levy a fine yet upon his death  a right have descend to his issue and whether that right be save now by this  salvo be the question for if it be so then though he be within the word of the  general purview he will be out of the Act and this I must confess to be not  without some difficulty for there be nothing in the salvo which may incline  one to extend it to stranger only and not to privy and if it be a new case it  may bear some dispute whether the issue be not within the benefit of that  salvo the former salvo be save to all and every person and person other than  the party to such fine all such right as they have at the time of the fine  levy and this be save to all other person all such right as shall accrue after  the word of the former comprise privy and why they shall not here may seem a  doubt but it have have such great agitation former and have of late year sleep  and not be stir as I know of till this case and the more and great authority  as they seem to I which I purposely omit to mention because they have be  already so often and so copious cite in this case have be that a fine with  proclamation do by that statute of Henry c bar the issue in tail and no  judgement to my knowledge ever against it I be Willing to look upon it as a  point settle and for many year pass acquiesce shower KB in without labour it  further especial since I consider that since that the statute of Henry c have  establish that fine with proclamation accord to the Henry c shall be a bar of  estate tail it be hardly ever like to come in l   light Inst   Sheph touch  cruise on fine shower KB er p question again what the effect of Henry c as to  this purpose be and I think it not to be material in this case which I take  whole to depend on the second question videlicet the second question whether  the statute of the four of James the first find in the verdict have make such  a alteration of the original estate of this manor give by king Richard the  three to Thomas earl of Derby as that now since this statute it shall be out  of the restraint lie upon it by the and Henry c which restrain tenant in tail  of the gift of the crown from alienate the land from his issue so long as the  reversion remain in the crown and as to this question in the first place I  must acknowledge that I take the estate mention and limit by that Act of James  in a strict sense and acceptation of law to be new estate limit and direct by  that Act the estate of Alice and earl William for their life seem to I to be  new estate the estate limit to James the son of earl William and the heir male  of his body and the estate tail to earl William to the seven son successive be  all new estate and so be all the subsequent estate limit in that Act otherwise  earl William will have a estate tail and James nor any of the rest of they can  not have have any estate in this manor in the life of earl William as my  brother dolben well observe and as he likewise observe James may have enter  upon his father alienation since the make of this Act if he have make a feoff  and James since this Act may have forfeit the manor for treason in his father  life time and his father can not make any such forfeiture all which will have  be otherwise if the old estate have stand as it do before the make this Act  without any alteration and they seem to be undeniable argument that these  estate be new estate in the strictness of the law beside James and all the son  of William and those that follow after take the land by purchase since the  shower KB Act whereas if the Act have not be make they can have take nothing  in the land but by descent and if James or any of his issue shall forfeit for  treason since the Act they can forfeit no more than their own estate and the  other to who remainder be tail will have no prejudice by it but before the Act  it will have be a forfeiture of the whole estate and if the king shall have  grant his reversion since the Act James fine or the fine of any of his issue  will sure have bar only their own estate and if they have die without issue  the remainder man may have then maintain formedons but it must have be in the  remainder not in the descender all which seem to I to demonstrate those estate  create by the Act to be new estate but yet though I take these estate create  by the Act to be new estate yet I conceive that Charles fine have not bar his  issue in this case for I be of opinion that this estate limit to James and all  other the estate tail create by the statute of king James be protect from be  bar by the statute of Henry c so that a fine levy by any of those tenant in  tail shall not bar his issue while the king reversion be in he I take it for  grant that a alienation by fine be as much prohibit by the statute of Henry c  as a alienation by common recovery and that by force of these word the heir in  tail may enter the say recovery or any other thing or thing to be have do or  suffer by or against such tenant in tail to the contrary notwithstanding and  accord be Lord coke m and though Lord Hobart n call it a oblique and indirect  strain as brother Maynard object yet it have obtain to this time and it seem  to have a great foundation in the very Act of parliament itself for it be  plain by the preamble of the Act that it be the alienation of the land they  intend to binder not the manner of the alienation and it have be to little  purpose to hinder tenant in tail in that case from alien by recovery if they  have leave he the power to bar his issue by a fine and these word shower KB  any other thing or thing show that they intend not only to hinder recovery but  any thing else that may be make use of to bar the issue therefore it seem it  be wise do to extend the statute as they do to fine it be true that only  recovery be mention in the Act but I think the reason of that to be because in  all probability recovery be the assurance then use for the bar intails where  the reversion be in the crown m   light and in the last resolution in Stafford  case   n Macwilliamss case hob shower KB er p it be a case except out of the  Henry c and it be at that time question whether the statute of Henry c extend  to intails or not but recovery be by all hold to bar the issue in tail so in  probability they will rather make use of they in such case than to rest upon  fine upon the doubtful interpretation of a Act of parliament then controvert  so that to I it seem the reason why they mention only recovery in the statute  be because that be the usual security in such case but they do it with the  addition of any other thing or thing to show that if use be make of any other  assurance to bar the issue that shall be invalid too in such case for the  alienation be the thing that they intend to restrain in the next place I lie  this down as the ground of my opinion and as a foundation of all I have to say  in this case that the crown be intend to have and in truth have a real benefit  and advantage by the statute of Henry c the end of the king give estate to his  subject that have do he great and acceptable service be partly to reward they  and their posterity and to oblige the child to follow the example of their  ancestor when they shall be sensible how well they have be reward and to  encourage other to do the like service upon hope of the like reward these be  not slight thing but of mighty moment to the crown and more valuable than the  manor they give for the strength of the crown be much build upon the real  service and faithfulness of the subject and their readiness and willingness to  serve their sovereign accord to their duty by the preamble of this Act it  appear that the king of this realm have this consideration in their eye when  they give such estate tail to their subject and it appear shower KB also by  the Act that the maker of the Act have it in their eye to give this a  continuance and duration accord to the king intention and for the advantage of  the crown it be as a quid pro quo to the king for his liberality it be a great  advantage to a sovereign oftentimes to part with a little estate to purchase  the heart and love of his subject oh now these intention of the king in reward  their subject will be of little avail if the issue may alien their estate as  soon as they have they the king bounty will be soon forget when the land be go  and he will quick lose his aim therefore it be the interest of the crown to  perpetuate those estate that the king give as much as may be and to continue  they in the family for the mischief that the Act intend to remedy appear in  the preamble to be that by such alienation not only the issue in tail be  deprive of the benefit which by the crown be intend to they in that gift but  that the crown be likewise prejudice thereby in have that make away and alien  from the family which by the gift be intend to be and shall and in all reason  will have be not only a continual obligation on the family of the donee as  long as it shall endure but likewise a encouragement and inducement to other  family to perform faithful and diligent service to the crown when they see how  well other have be reward by their sovereign for such service the king can not  annex any such restraint to his gift of it the issue but nobody else may be  bar by the alienation where the king give a feesimple conditional at the  commonlaw though the king can not and since the statute de gift by which  conditional feesimples be make intails the king prerogative can not restrain  the alienation so as to bar the issue as appear dyer but as soon as fine be  make bar of intails p the king donee may bar their issue and so will recovery  though they can not stir the king estate this be mischievous to the crown  therefore to help this the maker of this Act annex this in nature of a  condition or limitation to all the king grant in tail that they shall not be  alien shower KB by the donee or his issue this be for the king advantage and  this the maker of the Act seem to have in their eye equal if not more than the  issue in tail for the Act sound in disability both to the donee and their  issue if the king have part with his reversion they take no care what become  of the issue the king have power to take off this restraint at pleasure but  the donee nor any of their issue can not free themselves from it by any thing  oh No estate tail grant by the crown will fall under the protection of these  statute unless the grant appear to have be as a reward for service Perkins v  jewel Bl Rep burr cruise on recovery p   light b shower KB er p they can do  and it be not any qualification or alteration of the estate tail nor any thing  inherent in the estatetail but if it be inherent in any thing it be inherent  in the king reversion these thing be premise I shall go on to see how far this  case be within the letter and meaning of this Act of Henry c the word of the  Act be whereas the king have grant or otherwise provide to his subject manor c  to they and the heir male of their body and whereas sundry such donee and  their issue have suffer feign recovery of such manor whereof the reversion be  in the king and then it provide that the issue in tail shall not be bar c but  may enter c now in our case this manor be give by king Richard the three to  Thomas earl of Derby ancestor of earl Charles in tail male earl Charles be the  heir male of the body of the donee and he levy a fine the reversion be in the  king so here the issue in tail levy a fine of a manor of the gift of the crown  the reversion be still in the crown thus far it seem to be within the  protection of the statute but then it be object that the old entail that be  make to earl Thomas be by the Act of James the first alter and make into new  estate I take it that by this alteration of the estate the king have not lose  the advantage and benefit which the statute Henry c give he of restrain this  gift of his from be alienate out of the family it be observable that all these  new estate put together do but make up the old estatetail they take all  together be neither long nor short broad nor narrow than the old and original  estate of earl Thomas none shall take by these new estate but those that shall  have take by the old except Alice and such shower KB as shall come under the  new create power of make lease or of jointure which whether they can make any  alteration as to this purpose I will examine afterward there be not any person  which shall have enjoy under the first gift but shall enjoy it under this new  model and that in the same method that they shall before without invert the  order of the succession in the least and they shall take the like estate and  as beneficial by this model as they shall by the first gift they shall have  have estatestail by the first gift they shall have estatestail by this Act of  parliament all but William and those other particular name who by their own  consent have confine themselves to estate for life in lieu of intails the  first gift say that earl Thomas and the heir male of his body shall enjoy the  manor this Act of parliament say that James and other who must be issue male  of the body of earl Thomas and the heir male of their body which must be all  heir male of the body of the first donee before they can take shall hold the  manor successive this we call new estate and proper enough accord to the  acceptation of the law but it be plain they be the same in substance with the  old one the old estate translate into a new mode which remain the same in  substance and why it shall not be under the same restriction and qualification  as it have before I can understand I can look upon these estate thus create by  the statute of James the first as new gift but as new model and order of the  old gift the king gift ruin they all and to that it be that the restraint of  alienation be annex by that statute of Henry c also none will deny but this be  still a manor give to the Derby family by the crown and therefore the  reversion be still in the crown I see not how it can be alienate if the king  have original give the manor with such remainder as be create by this Act all  these estate have be within the statute of Henry c Lord coke make this his  three consultation upon this statute Q and why when the Act of parliament have  distribute the old entail and digest it into new estate they shall not be  within that statute of Henry c I can understand king James shower KB at the  request of the family give leave to newmodify this estate keep it still within  the bind of the family and this to comply with the peace of the family too as  appear by the very Act now it will be very hard to interpret he out of the  benefit and advantage that the statute of h give he over this estate by any  implication not so much as hint at in the Act and that contrary to his  intention for it seem plain to I that the king never intend to part with any  interest or power that he have over the estate this I think Q   light shower  KB er p any one be warrant to say by the proviso for the king interest which I  can agree with m brother dolben to signify nothing I take it to be very  significant to declare the meaning of the Act to be not to prejudice any power  advantage or interest which the crown have in or over this estate and I think  it will be very hard to strip the king by a strain interpretation of this  power that he have by Henry c over this estate to prevent it from be alien  from the family unless there be some word in the Act to lead particular to  such interpretation it be considerable in this case that the reversion stand  still in the crown in the same plight as it be at the time of the original  gift of Richard the three not any way alter or impeach by this statute of king  James I do not take the new model of the grant of Richard the three by this  statute of king James to be in this respect any way compare to the king part  with the reversion out of himself for if the king part with his reversion he  implicit part with his power of restrain the issue alienation the reason be  plain because this power of restrain be by the statute of Henry c annex to the  reversion as it be in the crown for the benefit of the crown and this power of  restrain alienation be not communicable to a subject therefore if the king  alien his reversion that power of restrain alienation can pass with the  reversion but die and be extinct and be once extinguish can be revive though  the king shall have a reconveyance of the reversion this be evident by Lord  coke second conclusion upon this statute r but nothing that the donee or any  shower KB of his issue can do can extinguish this power of restrain though  they shall all join together for indeed this power by the statute Henry c be  primary intend for the benefit of the crown to continue that obligation and  tie that the crown have upon the family by this gift and the encouragement it  will give other to serve the crown but there be a benefit do secondary redound  to the issue by have the estate continue to they and this they can by no mean  strip themselves of the power of restrain alienation I take to be annex to the  king reversion and not to the donee estate the change the reversion may  destroy it but the change of estate can especial so long as it remain within  the old bind again it be observable that this Act of James the first be make  upon a award make in the family among themselves concern this manor among  other for the determine how and in what manner it may be enjoy by the  respective branch of the family which award need the confirmation of a Act of  parliament to make it valid the king join in it only to make it a Act and to  give it the stamp and power of a Act of parliament not to part with any of his  interest advantage and privilege this appear plain by the proviso and the  award be that this shall be enjoy by one in tail and by another in tail and by  another in tail as they shall have take by the first grant of the king now  shall this be expound to give a liberty for any of the issue to alien which  they have not before nor can have have by any thing he can do and that in  prejudice of the crown as that it seem contrary to the award which be to  settle it in the family this be a Act that be ground on the award and  participate of the award thus far that as the award be within the family and  among themselves so this be a Act of parliament make within the family and  none but the family party to it so as by the authority of barrington case S it  shall not have bar the right of a stranger though a subject as if William  before the award have grant a rentcharge Alice shall not have avoid it though  there shower KB have be no salvo and shall this be take to bar the king of the  power and advantage he have to restrain the alienation of the issue I can in  this respect but liken it to the prior of Castleacres case cite in that of sir  Francis Barrington where by a Act of parliament the land of prior alien be  give to the crown yet this shall not prejudice the rend that the prior of  castleacre have out of a priory alien though no salvo in the Act shall a  subject right be preserve without a salvo because it be say the Act be between  other videlicet the prior alien and shall not the king interest be preserve  here where he have a proviso and the Act make between person all of the Derby  family and the king no otherwise concern than to consent that it may be a Act  of parliament I think if there have be no proviso r   light S   shower KB er p  this restraint of alienation be for the advantage of the crown will not have  be discharge but be there be such a proviso it be much the strong Alice and  the estate under the power can make no alteration for the statute Henry c  enable the tenant in tail to make lease for life yet by common experience we  find that notwithstanding such lease the restraint of this statute as to the  alienation by the donee or his issue by this statute remain and by this very  statute the power give to such tenant in tail to make lease be save though the  alienation of their estate be prohibit the privity that brother Gregory  conceive to be necessary in this case I conceive to be nothing for there be no  privity require to make such a restraint if the king procure another for money  or otherwise to settle a estate upon a b in tail with the remainder to the  king and his heir and successor there be no more privity than here and yet no  question but the alienation of a b be restrain there by this statute so long  as the remainder be in the king so be Stafford case to after the king have  make a gift in tail he grant the estate to another in tail in reversion yet it  be adjudge that the restraint lie upon the first tenant in tail by the statute  remain notwithstanding the king second grant for as long as shower KB any  reversion remain in the king it be that which restrain the alienation and the  issue shall have advantage of it and so shall the second tenant in tail for  the king reversion protect both as to brother maynard quaere in this case who  shall be donor it be no matter whether there be any or not tail may be without  donor in some case as where the entail be mere and sole by Act of parliament  unless the whole kingdom be donor and so be the postoffice if it may proper be  say to be within the statute de gift c settle by Act of parliament on James  duke of York and the heir male of his body huic pater be a people pater be  huic nullus but in this case in a formedon c the donee may declare of a gift  from the king I think and the special matter set all forth will maintain it as  where a formedon be bring of land that be recover in value it be use to  declare upon set it forth as a gift from the first donor and the special  matter will maintain it and he conclude upon the whole that judgement ought to  be for the plaintiff Lord north be make keeper can not argue it Pemberton  chief justice however deliver his opinion by his appointment that judgement  ought to be for the plaintiff upon the latter point because the new estatetail  raise by the statute of the four of James the first shall have the same  protection as the old estate have but for the first point be hold that since  the Act Henry c have expound the statute Henry c to make the fine of tenant in  tail to be a bar to his estate it must be adjudge to be so in all case  notwithstanding the proviso in that Act Henry c sir Edmund sander who be make  chief justice of the king bench this term u be of opinion also with the  plaintiff and will have argue it but that the custom be in a exchequerchamber  case that after it have be once argue by a judge it be not to be argue by any  new judge and so there be ten opinion with the plaintiff and only three  against he videlicet dolben justice Gregory baron and baron Mr pollexfen be  likewise in his own private think real of opinion with the plaintiff as I hear  shower KB himself declare to sir George Jefferyes judgement for the plaintiff  ten t   u that be Hilary term car vide ante and note Pemberton be the same  term remove to the court of common plea ten see the case of Neal on the demise  of the duke of Athol v Wilding will where in a ejectment for a estate under  this grant from the crown and on evidence of a common recovery with single  voucher suffer previous to the Henry c it be hold that the recoveror thereby  gain a base fee by which the issue in tail be complete bar and the estate  render descendable and alienable until the ancient reversion in the crown  shall take place in failure of issue male see also Johnston on the demise of  the earl of anglesea v earl Derby Mod Perkins v jewel I by Rep and burr shower  KB er p trinity term the thirtysecond of Charles the second in the king bench  sir William Scroggs Knt chief justice sir Thomas Jones Knt sir William dolben  Knt sir Thomas Raymond Knt justice sir Creswell levinz Knt attorney general  sir Francis Winninton Knt solicitor general