Bridgman oh Bainbridge v gardener adjudge maii car ms No fol Mr Hargrave refer  in this case to Hardres t Jones Mod d ed a where a estate tail be of the gift  of the king and the reversion grant out in fee and reconvey to the crown in  fee a recovery suffer by the tenant in tail bar the issue notwithstanding the  statute of and h c S p in Lord nottingham ms cite by Mr butler   Litt b note  Lord Nottingham seem also to have make his note on this case see below both  note f b the true construction of that Act is heirs in tail be not bind by  such recovery only as shall be suffer by grantee in tail of the crown where  the reversion continue in the crown from the time of the original grant that  the king be deceive in the grant of letter patent how to be show hark ms No  fol note of a conference with the twelve judge upon a doubtful case this case  of Bainbridge v gardener be several time argue at the bar and because it be a  new case upon the statute h c and that one of the justice do private declare  his opinion differ from the other three of we who hold for the plaintiff we  move the judge of the two other court that there may be a argument on it  before we all that we may receive their opinion in it to which the Lord chief  justice hide and the chief baron hale and the rest agree and upon the first  Monday in easter term car the case be argue before ten judge justice brown be  absent upon occasion of his wife death and baron turner near sickness and the  case be argue by sergeant Waller for the plaintiff and sergeant Glyn for the  defendant and afterward the that day of April we debate the case among  ourselves and do all agree for the plaintiff the judge who be before of a  contrary opinion submit to we I shall short deliver the reason of their  opinion in those thing wherein they agree some other thing as concern the fine  by Philip earl of Chesterfield descent warranty c which be move at the bar be  not debate so as to grow to a resolution on they and we agree unanimous in the  main there be no cause for it and therefore I shall say nothing to they  Bridgman oh there be two great question make in this case the first and the  chief Bridgman oh er p point be that this estate tail be make of the gift of  the king and the reversion be grant out in fee and then reconvey to the crown  in fee and the reversion be in the king at the time of the fine levy by the  issue in tail whether the reversion be resettle in the crown now reduce the  estate tail again within the restraint of h that tenant in tail can bar his  issue by fine or recovery wherein the great objection be that the word of the  Act be that no such recovery hereafter to he have of land whereof the  reversion or remainder at the time of such recovery have shall be in the king  shall bind or conclude the heir in tail but that after the death of every such  tenant in tail against who any such recovery shall be have the heir in tail  may enter c the say recovery or any other thing or thing hereafter to be have  do or suffer by or against any such tenant in tail to the contrary  notwithstanding and this case be within the very word of the statute the  reversion be in the king at the time of this fine and the statute say not that  the reversion shall continue in the king in the same quality it be before and  therefore it be sufficient if the reversion be in the king at the time of the  recovery or other bar but all the judge hold that this case be out of the  statute and the issue in tail be bar notwithstanding the reversion be in the  crown and they give these two principal reason saint that the tenant in tail  be set free and as it be emancipate from the restraint set upon he by the Act  of h at commonlaw notam at the commonlaw if the king grant land in feesimple  conditional it be double if donee post offspring encourage may have alien to  bar his issue Riley Lord not ms cite b Mr butler   Litt b n c if the king have  make a gift in tail before the stat Westminster the issue post offspring  encourage to have power to make strange vide Cr lady griffin and stanhope case  but this be restrain by that stat of Westminster not only in the case of the  king but of a common person but then the statute of h set all lose again and  put it in the power of tenant in tail by fine or recovery to bar his issue  though the reversion be in the crown and this power be not take away by the  statute of h c of fine as be agree in Mackwilliams case Hobart fol and though  this statute of h by construction Bridgman oh fetter not only the recovery but  also the fine by tenant in tail of the king gift which my Lord Hobart in that  case say be by a oblique and indirect strain yet the tenant in tail be free  from these great fetter by a grant of the reversion out of the crown there be  no reason that he shall be deprive of this freedom and the construction ought  to be make of the Act that it intend by the reversion be in the crown the  reversion continue in the crown which be the word sometime use by my Lord coke  c c though in two other place there comment upon that statute h and instance  some case out of it it be express because the king have no reversion at the  time of the recovery and it be agreeable to the reason of law in like case  where a privilege or freedom from a servitude or restraint be once total  acquire it shall not be take away by general word of a statute or by the act  of a three person to which the person who hold the privilege or freedom be not  consent and the word and intent of the Act of h be sufficient answer by put it  out of the power of the tenant in tail during the continuance of the reversion  in the crown in position quo to bar his issue and it be say that whereas the  statute of James c of bankrupt make the estate tail liable whereof no  reversion or remainder be or shall be in the king his heir or successor of the  gift or provision of the king his progenitor heir or successor that be to have  no other construction but that such entail as be within h be out of the  statute of James and other case may be put within the letter of the statute of  h which yet be out of the statute as if there be tenant in tail of the king  gift the king grant the reversion out of he and then the grantee grant the  reversion to the king for five year this be within the letter of the Act the  reversion then be in the king yet it shall not hinder a common recovery in  that case the reversion be not in the king in the same manner as it be before  no more in the principal case for now the king be in the per by the Lord  Burleigh and sir William Mildmay and the tenure in capite which be a great  cause of the issue remembrance of the Bridgman oh er p profit they have by the  service of their ancestor do to the king as the word be in the preamble of the  Act be quite go dly the second reason upon which many of the judge do  principal rely be ab inconsistency the infinite mischief and trouble which may  happen to purchaser if such revesting of reversion alien out of the crown may  bring they within the danger of the statute for when they find the reversion  once take absolute out of the crown they look no Bridgman oh further and if  they shall the reversion may be revested again in such manner as may not easy  be find out and the search and trouble to purchaser and other concern to know  whether the reversion be grant again to the crown or not will be endless in  wiseman case   speak of make intails and grant the remainder to the crown it  be say that by secret and unknown limitation of the remainder to the king  purchaser be deceive and the tenant in tail in possession be deprive of the  power which the law give he to dock the remainder and therefore exclude such  estate tail with remainder in tail make by common person out of the statute of  h the very same mischief and upon the same reason it be to bring estate tail  with reversion expectant once take out of the crown and then after regrant by  the subject to the crown within the restraint of h the three reason be ab  authority it be say that the constant opinion have be that the reversion be  once grant out of the crown the estate tail be absolute f reed though the  reversion be regrant and so it be hold by the Lord chief baron davenport in  his read upon this statute and it be say that this very consequence be draw by  the advice of the say sergeant davenport George croak and sir Thomas crew Mr  levins who be then a barrister of five year stand draw it accord to their  direction and the current opinion have go thus and the common course have be  when there have be cause to take reversion out of the crown for particular  purpose with intent after these perform to resettle the estate again as before  to destroy the entail and to take a new entail out of the crown and this two  way first it have be hold if the tenant in tail levy a fine or suffer a  recovery to the king that this be out of the statute but second in most case  the reversion have be put out of the crown and then the tenant in tail have  bar the entail and when that which be intend by lease jointure c have be let  in then to put the inheritance into the crown and to take the estate tail de  to make new out of the crown in my Lord Baltimores case which concern the Lord  Arundel which be remember by diverse of the judge there be a entail make out  of the crown to Bainton and the reversion be take out of the crown and the  like recognizance as in our principal case and the reversion be out of the  crown a common recovery be suffer by the tenant in tail to the use of the  recoverors who regrant the land in tail and then grant the reversion back to  the crown accord to Bridgman oh the condition the question grow upon this  second conveyance in tail whether it be a provision of the crown and it be  insist upon that it must appear of record to be a provision of the crown but  car b r Branston Jones c be justice it be the opinion of the court that it be  matter of fact whether it be a estate tail of the provision of the crown or  not and they leave it to the jury who find it to be a entail of the provision  of the crown and two more trial be after upon that point all which go the same  way though it be strong object that the now estate tail be draw out of the  first estate tail which be dock by the common recovery and second that nothing  appear in the grant or patent or otherwise of record that this last entail be  of the provision of the king but that case do not come to our principal case  for there be no interruption of the privity between the last tenant in tail  and the last reversion admit it to be of the provision of the crown and  Edgecombes case James be remember king Henry the eight give land to the Lord  Lovel upon trust to the intent to convey to Edgecombe in tail with remainder  to the crown which he do but the deed be not enrol whereby the king do not  take the remainder and therefore it be agree de to make new that a common  recovery shall be have and that after the recovery the land shall be convey to  Edgecombe in tail with remainder to the crown which be do accord the question  there be whether the first intention of make the first Bridgman oh er p entail  by the provision of the crown with remainder to the crown will serve to make  the second entail and remainder to be of the provision of the crown but that  case differ from our principal case as the Lord baltimore do the second point  in this case was whether the recognizance and the condition of it as they be  here find do difference this case from other case where the privity be go and  the reversion be take out of the crown and regrant and it have be strong  insist upon that it appear upon record that the intent of the queen be that no  prejudice shall come unto her but only as to the let in of the lease for sixty  year if it have be make by sir Thomas Stanhope and that though the  recognizance c be a distinct record yet all shall be take but as one assurance  and the patent to the Lord Burleigh and sir Walter Mildmay be ad humilem  candidacy of sir Thomas Stanhope and so the tenant in tail still restrain by h  and it be further urge that it be not a clear grant of the reversion out of  the crown but a Bridgman oh kind of equitable right at least and remedy for  the queen to have it again which will preserve the incident to it as a bare  right will support a contingent remainder or a condition revest the reversion  in the crown and leave the issue in tail in position quo prius which afterward  some of the judge deny and other affirm in the case of a condition second it  be urge if this estate tail be leave whole free after the reversion revested  in the crown that then the king be deceive in his grant of the reversion in  fee to the lord Burleigh and Mildmay and so it be void and it be not against  law to couple and take in the consideration appear upon another matter of  record into the king grant and that no case can be put where it appear upon  record that the king be deceive thathis grant shall be good and they cite e qy  cite also   the case of the friar carmelites who to avoid the statute of  mortmain and to extinguish the mesme signory procure a feoff to the king and  letter patent from the king to themselves and though the covin and fraud be  not contain in the grant make to the king but appear only by averment dehors  yet the charter be adjudge upon a to know facias in the chancery to be repeal  and in sir Hugh Cholmleys case the court take notice of fraud apparent without  the find of the jury and in our principal case if the issue take advantage of  this grant out of the crown intend only for levy a fine for year sur to go  away it be a kind of fraud but all the judge here hold that upon this  recognizance and the condition of it it appear the queen only intend to  prevent prejudice to her own reversion which by a common recovery while the  estate be in the Lord Burleigh and sir Walter Mildmay will have be go but do  not look to prevent the prejudice to the issue but the contrary for the queen  give way to a lease for sixty year to begin after sir Thomas stanhope death  and upon that lease only S d rend be reserve whereas the rend Payable over to  the crown be above l and they resolve that the recognizance make no alteration  in this principal case first for that it provide only for the queen reversion  second the recognizance be a collateral thing out of the patent and operate  not upon it be another conveyance but the queen rest upon her security if any  thing have be to her hurt and the case of e qy as I think prove not that which  be infer that the king grant may Bridgman oh be avoid by take in matter  collateral or dehors general the principal case there be good law videlicet  that a grant be make to the king to the intent that he shall grant to the  friar carmelites in mortmain and so to destroy the signiory of the bishop of  Winchester of who the land be hold and the king grant in mortmain accord the  king charter be repeal by to know facias for this fraud but this do not appear  to be make void by the reason or rule of the commonlaw as my Lord coke say but  it be by the statute of mortmain Edward I that no person art well injurio  shall offend against that statute which word be twice repeat thereand give  power to the chief lord to enter and in the case e the case of the master and  scholar of Merton after the king be petition as he must where a estate be make  to he they enter in such case and the entry be adjudge good and r pl No there  be a petition of the commons that a religious person procure other to feoff  the king and the king to grant in mortmain to hold of the king and to  extinguish the signior it be answer that if such feoff be make without the  assent of the lord mediate that they may enter as in the statute de religious  devotee but if a grant Bridgman oh er p be make to the king to the intent that  the king will grant to hold of himself to I S a single person though covin be  a thing averable and odious in law and may be plead yet without allege express  covin may perhaps though it be allege the charter will not be repeal in Alton  wood case the four exception b to letter patent be that the king grant in  consideration of the surrender of letter patent where in truth the estate it  be in a feme covert can not be surrender and so the king be deceive in his  consideration the patent be void but it be overrule for it do not appear by  any express matter in the letter patent that the king intend a surrender of  the former estate but of the letter patent whereby those former estate be  grant and the book the word the book be not in the manuscript e give it for a  rule that it will be dangerous to make the king grant void by construction  upon inference and argument without direct and express matter contain in the  letter patent and in Doddingtons case   the judge will take no notice of the  auditor particular for they say they ought to find their judgement upon the  patent themselves and in our principal case there be nothing in the patent  itself to the Bridgman oh Lord Burleigh and sir Walter Mildmay out of which it  can be infer that the king intention be that the issue in tail shall not be  prejudice after that grant make to they a three point be argue whether the  fine by Philip Stanhope be issue in tail in the life of the tenant in tail and  so not within the express word of the statute which be of thing do and suffer  by tenant in tail bar those who be his issue this be not much speak to but  diverse of the judge hold it do not and also deny the law to be accord to  Stratford and Dover case it seem to some that the case of Stratford and Dover  above quote be not law for in Rep magd coll case it be adjudge that the fine  do not bar the college not be party because the Elizabeth make void all act  which it suffer and such sufferance extend to the Act in which they be not  party by sir Orlando Bridgman Lord nottingham ms cite by Mr butler in note    Litt a f c c where the seize of tenant in tail the reversion in the crown levy  a fine and five year pass whether it shall bind the issue in tail which case  be also cite by justice Jones in stone and Newmans case but they resolve  nothing as to this point have give their opinion so full on the first point