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<DATE>2012-10-09</DATE>
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<NAME>John Pas</NAME>
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<ITEM>Proofed and reviewed as part of batch B120724.pdcc.</ITEM>
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<STC T="W">C927A</STC>
<STC T="C">R173526</STC>
<BIBNO T="oclc">47682813</BIBNO>
<VID>172773</VID>
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<TEXT LANG="eng">
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<DIV1 TYPE="text">
<PB REF="1">
<HEAD>The Ca&s;e of <HI>John Danvers</HI> E&s;q; inter <HI>Rich. Browne</HI> Quer' <HI>&amp; Waite</HI> Defend'</HEAD>
<P><HI>HEnry</HI> Earl of <HI>Danby,</HI> by Deed and Fine,
<NOTE PLACE="marg">4 <HI>Car.</HI> 1. <HI>Anno</HI> 1629.</NOTE> &s;ettles the Mannor of <HI>Daun&s;ey</HI> in <HI>Wilt&s;hire</HI> upon him&s;elf for Life; Remainder to Sir <HI>John Danvers</HI> his Brother for his Life; Remainder to <HI>Elizabeth</HI> Wife of Sir <HI>John Dan|vers</HI> for her Life; Remainder to the Heirs of the Body of the &s;aid Sir <HI>John Danvers;</HI> Remainder to the right Heirs of the &s;aid Earl.</P>
<P><HI>Henry</HI> Earl of <HI>Danby,</HI> and <HI>Elizabeth</HI> the Wife of Sir <HI>John Danvers,</HI> died before the Year 1646, and the Earl left no I&s;&s;ue, whereby Sir <HI>John Danvers</HI> became his Heir at Law; and by the &s;aid Settlement was (in the Year 1646) &s;eized of the &s;aid Mannor in Tayle, and as Heir at Law to the Earl, had the Rever&s;ion in Fee.</P>
<P>Sir <HI>John Danvers</HI> being &s;o &s;eized by Deed, dated 5^o <HI>May</HI> 1647,
<NOTE PLACE="marg"><HI>Anno</HI> 1647.</NOTE> Covenants to levy a Fine, with Proclamations of the &s;aid Mannor, to the U&s;e of him|&s;elf, and the Heirs of his Body, Remainder to his own right Heirs; and the Fine accordingly had.</P>
<P>Sir <HI>John Danvers,</HI> 17 <HI>April</HI> 1655, died &s;eized, leaving I&s;&s;ue <HI>John Dan|vers</HI> his Son and Heir, Le&s;&s;or of the Plaintiff.</P>
<P>In the Act <HI>of Indempnity,</HI> 12 <HI>Car.</HI> 2d, there is a Provi&s;o,
<NOTE PLACE="marg">12 <HI>Car.</HI> 2d. cap. 11. <HI>Anno</HI> 1660.</NOTE> that nothing in the Act contained &s;hall extend to di&s;charge the Lands, Tenements, Goods, Chattels, Rights, Tru&s;ts, and other Hereditaments of the &s;aid Sir <HI>John Dan|vers,</HI> and others therein named, of and from &s;uch Pains, Penalties, and For|feitures, as by one other Act of Parliament intended to be thereafter pa&s;&s;ed for that purpo&s;e, &s;hould be expre&s;&s;ed and delared.</P>
<P>By the Statute of <HI>Pains and Penalties,</HI> made the next Parliament,
<NOTE PLACE="marg">13 <HI>Car.</HI> 2d. cap. 15. <HI>Anno</HI> 1661.</NOTE> 13th <HI>Car.</HI> 2d, reciting the &s;aid Provi&s;o in the Act of Indempnity, it is enacted, That all and every the Mannors, Me&s;&s;uages, Lands, Tenements, Rents, Re|ver&s;ions, Remainders, Po&s;&s;e&s;&s;ions, Rights, Conditions, Intere&s;ts, Offices, Fees, Annuities, and all other Hereditaments, Lea&s;es for Years, Chattels real, and other things of what nature &s;oever they be, of the &s;aid Sir <HI>Jonn Danvers</HI> and others therein named, which they, or any of them, or any other Per&s;on or Per&s;ons to their U&s;es, or in tru&s;t for them, or any of them, had 25 <HI>March</HI> 1646, or at any time &s;ince, &s;hall &s;tand and be forfeited unto his Maje&s;ty, his Heirs and Succe&s;&s;ors, and &s;hall be deemed, ve&s;ted and adjudged, to be in the actual and real Po&s;&s;e&s;&s;ion of his Maje&s;ty, without Office or Inqui&s;ition thereof to be taken or found.</P>
<P>Sir <HI>John Danvers</HI> by neither of the &s;aid Acts, nor any other, is attained of Trea&s;on.</P>
<P>King <HI>Charles</HI> the 2d, by his Letters Patents,
<NOTE PLACE="marg">14 <HI>Car.</HI> 2d. Sept. 20.</NOTE> grants the &s;aid Mannor to the Duke of <HI>York</HI> and his Heirs; who getting into Po&s;&s;e&s;&s;ion, Mr. <HI>Danvers</HI> as Le&s;&s;or, in the Name of the Plaintiff <HI>Richard Brown,</HI> brought his Ejectment to try his Title; which came to a Trial at the King's-Bench Bar, Sir <HI>Matthew Hale</HI> being then Chief Ju&s;tice, who directed a &s;pecial Verdict, and there|in the Matter above found, for the Judges to determine the Law, wherein Chief Ju&s;tice <HI>Hale</HI> &s;eemed of Opinion for Mr. <HI>Danvers</HI>'s Title: but before any Judgment given, he was removed; and Chief Ju&s;tice <HI>Rainsford</HI> &s;ucceed|ing him, Judgment was given for the then Duke of <HI>York.</HI> Who after he came to the Crown, by Letters Patents &s;ettled the &s;aid Mannor, among&s;t other Lands, upon Tru&s;tees for his Queen during her Life.</P>
<P>Mr. <HI>Danvers,</HI> &s;ince the late Revolution, brought a Writ of Error in the Exchequer-Chamber, before the Judges of the Common-Pleas, and Barons of the Exchequer: and the majority being of Opinion again&s;t him (th&ocirc; &s;ome were for him) the Judgment given in the King's-Bench was affirmed. And whil&s;t the Writ of Error was depending, the Earl of <HI>Monmouth</HI> pro|cured a Grant from their pre&s;ent Maje&s;ties of the &s;aid Mannor to him and his Heirs.</P>
<PB N="2" REF="2">
<P>Mr. <HI>Danvers</HI> hath now brought a Writ of Error in Parliament.</P>
<P><LIST>
<HEAD>The Que&s;tions are principally two, <HI>(viz.)</HI></HEAD>
<ITEM>Whether an E&s;tate Tail be given or forfeited to the Crown,
<MILESTONE N="1" UNIT="Que&s;t."> by the &s;aid Act of <HI>Pains and Penalties?</HI></ITEM>
<ITEM>If not:
<MILESTONE N="2" UNIT="Que&s;t."> then, Whether by Sir <HI>John Danvers</HI>'s Fine in 1647, the old En|tail in the &s;aid Mannor be &s;o extingui&s;hed, that the remaining E&s;tates there|in are given or forfeited to the Crown by that Act?</ITEM>
</LIST></P>
<P>Judgment was given, both in the King's-Bench and Exchequer-Chamber upon the fir&s;t Point &s;ingly.</P>
<P>It is conceived that Mr. <HI>Danvers</HI> is intitled to an E&s;tate Tail in the Man|nor of <HI>Daunt&s;ey,</HI> notwith&s;tanding the &s;aid Act or Fine.</P>
<P N="1">1.
<NOTE PLACE="marg"><HI>Stat. We&s;t.</HI> 2d. 13 <HI>E.</HI> 1. <HI>c.</HI> 1.</NOTE> By the Statute <HI>de donis Conditionalibus, no</HI> E&s;tate Tail was forfei|table for Trea&s;on, till the Statute 26 <HI>H.</HI> 8. <HI>cap.</HI> 13. which gives no forfeiture of an E&s;tate Tail, but where the Tenant in Tail is convicted of Trea&s;on, according to the cour&s;e of the Common Law; which Conviction, or At|tainder, fails in this Ca&s;e.</P>
<P N="2">2. The Statute of <HI>Pains</HI> and Penalties, hath no words that import a For|feiture of an E&s;tate Tail, for the words in that Act only de&s;cribe the <HI>Chings</HI> to be forfeited, and not the <HI>E&s;tate</HI> therein, and are not of the &s;ame import as the words of the Statute of 26 <HI>H.</HI> 8. that makes an E&s;tate Tail <HI>forfeita|ble</HI> for <HI>Trea&s;on,</HI> by the Expo&s;ition of the Judges; who grounded that their Opinion only upon the&s;e words in that Statute, <HI>(whereof they are &s;eized of any E&s;tate of Inheritance)</HI> becau&s;e an E&s;tate Tail is an <HI>E&s;tate</HI> of <HI>Inheri|tance;</HI> Which words, or any other to the like effect, are wanting in the Act of <HI>Pains and Penalties.</HI></P>
<P N="3">3. It is agreed, that if this Statute had been made before 26 <HI>H.</HI> 8. the E|&s;tate Tail would not have been forfeited; and there's no more rea&s;on it &s;hould be forfeited now, &s;ince Sir <HI>John Danvers</HI> was <HI>never Attainted.</HI> And it is to be ob&s;erved, that <HI>Penal Statutes,</HI> &s;uch as this is, are always con&s;trued <HI>&s;trictly,</HI> and mo&s;t beneficially for the Party accu&s;ed: Which will the rather be &s;o in this Ca&s;e, becau&s;e the Parliament did <HI>not Attaint</HI> Sir <HI>John Danvers,</HI> but de&s;igned <HI>Favour</HI> to him, which they refu&s;ed to others in the like Cir|cum&s;tances.</P>
<P>As to the &s;econd Que&s;tion,
<MILESTONE N="2" UNIT="Que&s;t."> it is an&s;wered, That the new E&s;tate Tail, created by the Fine and Deed in 1647, is not forfeited by the Act of Pains and Penalties; becau&s;e the old E&s;tate Tail could neither be <HI>extingui&s;hed</HI> nor <HI>merged</HI> in the Rever&s;ion in Fee-Simple, which all will allow. And the Fine rather bars the I&s;&s;ue to claim the Entail, than transfers it to the Connu&s;ee; &s;o that the old E&s;tate remains in Effect, and the <HI>V&s;e</HI> declared upon the Fine is executed the &s;ame moment, and leaves no E&s;tate in the Connu&s;ee <HI>forfeita|ble.</HI> Hence it follows, that the new U&s;e to Sir <HI>John Danvers,</HI> and the Heirs of his Body, is derived out of the <HI>old Entail,</HI> that was as <HI>large,</HI> and <HI>equal</HI> with the new One, (and which was not forfeited) and not out of the Re|ver&s;ion <HI>in Fee</HI> that is <HI>owned</HI> to <HI>be forfeited.</HI></P>
<P>It has been objected,
<MILESTONE UNIT="Object."> That unle&s;s this Mannor of <HI>Daunt&s;ey</HI> be forfeited by the Act of Pains and Penalties, th&ocirc; Sir <HI>John Danvers</HI> be named in the Act, yet his Po&s;terity will not &s;uffer any thing by it, which (&s;ay they) could never be the Intent of the Parliament.</P>
<P>It's an&s;wered;
<MILESTONE UNIT="An&s;w."> That Mr. <HI>Danvers</HI> hath lo&s;t by this Act, Lands to the value of 1500 <HI>l. per Annum,</HI> which de&s;cended to him in Fee-Simple; and other Children of Sir <HI>John Danvers</HI> have lo&s;t near as much.</P>
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