An exact abridgment in English, of The commentaries, or reports of the learned and famous lawyer, Edmond Plowden, an apprentice of the common law.: Concerning diverse cases and matters in law, and the arguments thereupon; in the times of the reignes of King Edward the Sixth, Queen Mary, King Philip, and Queen Mary, and Queen Elizabeth, with the exceptions to the pleadings, and answers thereunto; the resolutions of the matters in law, and all other principall matters arising upon the same. By F.H. of the Inner Temple London, Esq;

Willion against the Lord Berkly.

A Fine was levied to two, and to the Heirs of [unspec 227] one, with Grant and Render to the Conusor in Tail, the Remainder to King Henry the seventh, and to the Heirs Males of his body ingendred, re∣mainder to the right Heirs of the Conusor; the Co∣nusor dies without issue; and after H. 7. entred, and died seised; and H. 8. gave the land to the Queen his Wife, for her life, and died: E. 6. Granted the re∣version to one, and his Heirs, and dyed without is∣sue, the right Heir of the Conusor entred, and his entry adjudged lawfull.

So the King shall be in a worse condition then a

common person; for a common person may bind the inheritance by a common Recovery suffered by him, otherwise of the King, by W. 2. cap. 1. after fol. 244. a.

1. That the Writ of Ejectione firme that wanteth words, bona & Cattalla ibidem inventa cepit & a∣sportavit, is good, if the truth of the matter be so, and proces of utlarie lieth in this writ by the Com∣mon Law fol. 228.

2. The Entry of King Henry the seventh is law∣full without office; for that the Law casts the Free∣hold upon him; otherwise it is where he taketh an estate by Office, as Ward, Perquisites of villains, &c. and the right Heir may enter without Office, or Ouster le main, by the same reason, (fol. 229. a.)

3. Where the parties agree upon the matter in deed, and conclude upon the matter in Law, thereupon Nilrefert, but the Court shall adjudge according to the Law, fol. 230.

4 Recitall of one part of a generall Statute is good enough, otherwise it is of a particular Sea∣tute, fol. 232. a.

5. Omission of the date or place of Letters Patents is not materiall in pleading, not Aver∣ment. fol. 231.

6. A feoffment pleaded without entry of the Fe∣offee, is good; because it is included in the liver∣ry, fol. 232. b,

7. The fee vests by the guift before the Statute of W. 2 and is made more perfect by the means of the issue; fol. 233 a.

8. The pleading that H. 7. had issue, and died without issue, is repugnant of his own shewing; otherwise it is where it cometh on the part of the defendant, fol. 233.

9. The pleading that one enter untill that the Lessor entred upon him, and made the Lease (is not good there) without saying, that he custed him, and made the Lease.

The King shall be bound by the Statute of W. 2. of gifts conditional, for that it is in preservation of an inheritance in benefit of the publike good, and restitution of the intent of the donor, and the exposition that the donee might alien after issue, be∣fore the Statute of Gifts, conditional, hath been a common error.

As to the matter in Law it was said by the Ser∣geants of Counsel with the defendant, that the ca∣pacity [unspec 234] that the King hath in his naturall body after that he is King Remains, and the State Royall con∣founds not this capacity, as 45. ass. pl. 6. Henry the third gave the Mannor to the Earl of Cornwall in tayle, who exchanged it by a deed for another Mannor, and died without issue, and warranty and assets discended upon Edward the first his heir, he is barred, and therefore the assignee of the party to the exchange had restitution, out of the hands E. 3. who had seised it, and so by this warranty and assets which discended upon the naturall body of the King, was a Bar to the reversion that he de∣manded in his body politike; And as a King may take as heir by discent in his naturall body, so may he purchase. As 34. H. 6.34. and by plea∣ding there H. 6. seized in fee of an Advowson in gross, conveyed it from H. 5. to him who granted it to the plantiff, good; without shewing in jure Coronae, or how, and there if the King hath Land, parcel of the Crown, and parcell by purchase, and dies, having a son and daughter by one venter, and a son by another, who enters and dies without issue,

the daughter shall have the Land purchased, and the son the other. So purchased Lands by the King shall go to the naturall body. So 35. H. 6.28. by Moyle, (after fol. 247.) Land in Gavel-kind gi∣ven to the King and his heirs, the eldest son being King, shall not have all, because it vests in his na∣turall body, but perquisites of a villaine the King hath jure Coronae (as 41. E. 3.21.) if a Bishop who hath a villain in the right of his Church enter, he shall hold it in his body politick, and shall be in the right of his Church, because the signiory was; for a thing in respect, or by reason of another, shalbe in the same degree, and right, as the principal was at the Common Law. That an estate of inheritance, viz. Fee-simple, was by the Common Law before the Statute. First absolute when a gift was made to a man and his Heirs. Secondly, conditional, when to him and the Heirs of his body, for that forme∣don in Reverter at the Common Law, if the Donee dies without issue in Remainder, not; for a re∣mainder cannot depend upon a Fee Conditional until this Statute, and before this Statute the Do∣nee might alien after issue had, so bar the issue, be∣cause they construed the having of issue to be a per∣formance of the Condition, which was implied in the words, and in the intent of the Donee, and af∣ter issue, to be as an absolute Fee, because he had such heirs which were limited. But if before the Statute the Donee had issue, he might alien, and good then, here 4 E. 3. and 30. E. 1. which was con∣trary to the will of the Donor, for which the Sta∣tute was made, and then Fines were of great regard; yet by this Statute, ipso jure sit nullus, (viz.) as to [unspec 236] the right issue, or Donors, the Kings prerogatives are great; yet the Common Law so admeasures

them, that they take not away any of the inheritan∣ces of the subject; and therefore the King shall pay Toll, though not for things bought, yet Toll Tra∣verse he shall, because it is for going over another Soil, because it toucheth the inheritance to permit a way over his Soil, without paying any thing, 46. E. 3. 23. H. 3. 35. H. 6. 26, 28, 29. So for to wave a Demurrer, or issue; yet may not change one issue into another Term, because then it would be infi∣nite, which should be to the disinheritance of ano∣ther. 13. E. 4.8. Statutes general made in preserva∣tion of inheritances, or for the publick good, binds the King without naming, as W. 2. c. 5. of usurpati∣ons: but by 35. H. 6. good, is not so clear, if an infant upon whom the King usurps, hath by pur∣chase as well as discent. So Merton cap. 5. That ordains, that the Kings Ward shall not pay usury, viz. That the Rent shall not be doubled during the Nonage of the Heir: and therefore in 35. H. 6.60. by Needham, if the King gives land rendring Rent yearly at Easter, and if he fail to pay at the day, That he shall double the Rent; the Grantee dies, his Heir within age, he shall not double the Rent against the King: So Merton cap. 6. That a man shall make his Attorney for to follow his suit to the King; if it be his Lord, or at the Court of another, he shall do it: So the Statute of 5. H. 5. of additions, L. 5. E. 4.32. of one Law which be∣longeth to a common person, the King may not defend the Common right, but that every one shall have advantage; but every general Statute shall not bind the King, without naming of him: As Mag∣na Charta, cap. 12. Communia placita, &c. nor such which have an intent onely between subjects, and to repress disorder between them; those here which

concerneth salvation of inheritance, or publick [unspec 237] utility of the Realm. So the Statute of gifts Con∣ditional binds the King, because by Justice, and Act of Parliament, the King hath submitted his will to the Donor.

The King, as Walsh saith, hath in him, First, pow∣er to do: Secondly, Justice to enforce him to do it, this is as to others: Thirdly, Mercie to stay him from doing, this is of things touching himself. And because after this Statute, the King may not say that the estate is Fee-simple Conditional, as it was before the Act, the case of the Tenant in Tail attainted of Treason, was alleadged in proof of it, 37. H. 8.7. 7. H. 4.32. which proves that the King shall be bound by the said Statute: So by 26. H. 8. cap. 13. because it is some estate of inheritance; al∣so the Tenant of the King in Capite, gives in Tail Tenendum de capitali domino, the King shall not have Wardship of the issue in Tail, 4. H. 6.19. because it is not now Fee Conditional, as before the Sta∣tute; and therefore he is not immediate Tenant to the King; 4. H. 7.16. The King may receive the Services of the Donor by his hands; 27. H. 8.26. (after fol 249.) the King may take the Donor, or the Tenant in Tail, for his Tenant, before Licence, [unspec 238] or after, but once chosen shall not resort: Also 8. H. 4.9. Tenant in Tail of a Signioty, aliens it in Mortmain, for default the Signiory revolts to the King, the King seises the Land after escheat, the issue in Tail hath the land by petition against the King, and therefore is not Fee-Conditionall, as to the King, but binds the King, although in these cases the King claims in the right of the Crown, yet here it is very remote from the prerogative, be∣cause here it remains vested in the natural body of H. 7.

For the Plaintiff it was said, That the Preroga∣tive of the natural body of the King, because of the union of the politick, as the attainder of H. 7. dis∣charge ipso facto as soon as he came to the Crown, 1. H. 7.4. So R. 3. being Feoffee to uses, when he was King the use was gone; because the King in his body politique may not be seised to an use of another, 5. E. 4.7. and therefore it was enacted, 1. R. 3.cap. 5. Rastal, Uses 3. That the Land should be in Fee to him, to whom the Use was, 43, E. 3.22. Franchises extinct by purchase of the King (yet to him and his Heirs) of a Mannor to which they [unspec 239] were appendant: So the King in his natural body and another purchase, or if the purchase is before that he is King, they are not Joint-Tenants, but Tenants in common, Fitz-nabr. f. 32. G. because no body politick may hold in Joincture: So 44. E. 3.45. The King may distrain in all others lands for his arrearages, where he hath the signiory in his bo∣dy politick, and by Bentos, no entry shall be upon the purchaser in his natural body, before he was King or after, for Condition broken by him: So 10. H. 4.47. The King hath a non omittas in his scirefacias, for Dutchie land, and good, (before fol. 216.) Exception in intendment of the Act here, as good as if it had been in words, and Use is of naming of the King, when he shall be re∣strained.

The King is favored in all exposiitons, because it is intended that he will not assent to prejudice himself; the liberty and interest that he hath at the Common Law, is not taken away by the Statute, if he is not named, 12. H. 7.21. proves it, because at the Common Law every Lord may distrain for all Services in every part of the Tenacie, 10. H. 7.10. [unspec 240]

and after quia emptores terrar. W. 3. cap. 2. the Lord shall have pro particula, but not more; yet the King after this Statute if his Tenant aliens part, shall have all Services by the hands of the Fe∣offee, or Feoffor, Fitzh. nat. br. fol. 235. A. and West∣minstere 2. cap. 17. which gives the Wardship to the first Feoffor, binds not the King, for he shall have it, albeit he held of him by posteriority. And so Prerogativa Regis, cap. 2. affirms the Common Law in this point.

The Statute de Religiosis 7. E. 1. For Mortmain binds not the King, nor Marlebridge, cap. 9. which Grans, That the elder percener onely shall do the suit; yet Fitzh. nat. br. fol. 159. all shall do it to the King. So the King may sue for debt in the Kings Bench, contrary to Magna Charta cap. 11. But 1. H. 5. cap. 5. of additions binds the King, because he is included in the word [Indictment] expresse, which is onely the suit by (Carus) the King gives in Tail without expressing any service, he shal hold in Capite, 29. H. 8. for the King shall seize for his Fine, if he aliens without licence, 22. E. 3.58. Ass. fol. 1. [unspec 241] and it is not in Capite, if he holds of the King, by rea∣son of a Reversion, or Mannor, and not of his per∣son, W. 2. cap. 3. gives receipt generally to him in Reversion; yet 25. E. 3.48. the King shall not be received upon the default of his Tenant, because then the demandant should count anew against the King, but he ought to sue to him by Petition, 14. H. 8.3. by Fineux, the King shall not abase himself to stand to the defence as Tenant in suit, as a Com∣mon person shall.

Weston, Justice. A gift in Tail before W. 2. im∣plies a Condition in Law viz: That it should re∣vert to the Donor, if the Donee did die without

issue, & if the words had been expressed in the gift, it had been surplusage, and therefore there it is a con∣dition [unspec 242] in Law, and not in Deed; for a Conditi∣on in Deed may be broken during the estate given, but a Condition in Law, as this is, cannot, Con∣ditions in Law are two, the one finishes the estate, as a Lease quam diu, one shall be Abbot, or live sole when he is removed to be Abbot, or taketh Husband, there the estate finisheth; the other fi∣nisheth not the estate untill suit, or entry, as where the Lessee maketh waste, or aliens, or Tenant in Fee Cess, or Disclaims, W. 2. restrains the alienati∣on of the Donee; now after issue had, if the Gift had been to Husband and Wife, and to the Heirs of their bodies ingendred, and the Wife had survi∣ved, that her second Husband, if he had issue by her, should be Tenant by the courtesie, now this is restrained: where the estate of the Donee before the Statute, was Fee-simple, now by the intent of the makers of the Act, the estate is diminished and made Fee-Tail, and the Fee-simple is in the donor, and a reversion made of it; and now the Fee-simple may be given over in Remainder, and so the estate is divided.

The King hath two capacitles, and cometh to some things meerly as King; as Treasure, Trove, and Escheats by Treason (after fol. 322.) and to some, not as King; as if Lands discend to him from any of his bodies Politick, are by Pattents of the King; as Dean and Chapter, Major, &c. can∣not purchase in succession by the word [Heirs,] but onely by the name of Successors; the body po∣litick at Common Law, as the King here by the one or the other, the King purchases in his naturall body, yet shall not take by Livery, (before f. 213.)

for it passes not by Livery, but by Record, and his Grantee thereof shall hold of him by Knights Ser∣vice in Capite; and none may distrain for Signiory, or Rents in it, nor have execution of it. And 7. E. [unspec 243] 4.17. The King may not be seised to anothers use, in respect of the Conjunction of the body Royall, to the body natural.

Prerogatives of the King, are by the Common Law, by Custom, and by Statute; by the Com∣mon Law, the Kings Grant is taken most favor∣ably for him, otherwise it is of the Grant of a Com∣mon person: As an Advowson passes not by Grant of a Mannor, without mentioning, 2 R. 3.4. 8. H. 7.1. 41. E. 3.4. and Prerogativa Regis, cap. 15. is not, but Common Law in this point; the King may Grant a thing in action, 2. H. 7.8. and 32. H 8. an Obligee Utlawed, the King shall have the entire duty 8. E. 4.24. and 19. H. 6.47. So the entire Ox (after fol. 323.) the King Grantee of the next avoidance, or of all presentments which shall hap∣pen within 20. years, and a stranger presents to them all; yet the King shall have them, and present when he pleaseth; otherwise, (fol. 249.) by .Antho∣ny Brown: Discent taketh not away the right of en∣try of the King. 37. H. 6.27. The King may enter after his villain, and alien when he pleaseth, Litl. s. 40. The King Counts of two presentments, it is not double, 43. E. 3.14, or 12. Matters of Bar the other ought to answer to them, and the King shall take issue upon which he pleaseth, 16. H. 7.12. by the Court, the King may Traverse a Title, or maintain his Office if he will, 3. H. 7.3. 13, 14. 2. H. 7.13. The King may amend his Declaration the same Term, 13. E. 4.8. The King may wave his Demurrer, and Traverse the Plea of the other,

28. H. 6.2. The King shall have a Non omitas in his Writs, notwithstanding any Liberty, That none shal serve his proces but his Ministers (before fol. 239.) the King shall not answer in value, with∣out express words, notwithstanding his warranty, (after f. 334.) the King shal not demand rent, 2. H. 7.8. The King makes a Lease, rendring rent to a stranger, good, & the stranger may distrain, or have Debt when it is ended, 35. H. 6.36. The King may distrain for a rent charge granted to him, or for Rent Service in all the Lands of him which ought to pay it. 13. E. 4.6. The Title of the King ap∣peareth, yet he is not party, the Court of Office shall adjudge for him, Stamford, cap. 29. fol. 96. Fitzh. nat. br. 38. E. 31. 6. H. 7.12. and 11. H. 4.71. by cu∣stomes; the custom of London to retain a pledge, cujuscunque fuerit until he pays, binds not the King, 35. H. 6.35. nonsale in market overt, 35. H. 6.28. and Doctor, and Student, 40. nor Wreck, Waise, nor Stray, binds not the King, 35. H. 6.26, 27. Custom, that all distresses taken within his Mannor shall be impounded there, binds not the King, 21. E. 3, 4. by Statutes which binds not the King where he is not named, yet he shall take ad∣vantage of them: As of the Stat of Waste, of 9. R. 2. c. 3. of Error and attaint by him in reversion upon a recovery against Tenant for life. And of W. 2. c. 7. fol. 140. If the King as Heir to his mother, brings asur cui in vita, the Plea shall not be delayed by the Nonage of the Heir; the King not named, is not restrained by Magna Charta cap. 10. upon which [unspec 244] the Ne injuste vexes is founded for to avoid in∣croachment, That if the King incroach more then he ought, he hath no other remedy then by Petiti∣on. The King bringeth a Quare impedit in the 〈1 page duplicate〉〈1 page duplicate〉

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Common Pleas, good, notwithstanding Magna Charta, quod communia placita, &c. 31. E. 3.18. E. 3.22. (before fol. 240.) Plenarty no Plea against the King, 43. E. 3.14. Non obstante, W. 2. cap. 5.32. H. 8. cap. 2. Of Limitations, binds not the King: The King may not suffer a Common Recovery for to Dock the Tail, as a common person may, because no precipe or Covenant lieth against him, 12. H 7.12. by Constable: So the King shall be in a worse condition then a subject, or common per∣son to bar the issue.

Anthony Brown, Justice. The name of King drowns the Sir-name of the King, and includes it, and his proper name also: and this word of sub∣stance by it self, may not be omitted in pur∣chases, Pattents, or Writs. Land given to Henry the seventh, omitting King, giveth nothing to him, omitting his name of Baptism: So a gift by him, by these words in the Pattent, Rex concessit, That the name Politick of the King, includes his natural name; and when this name is conjoyned to his natural person, it altereth the quality and de∣gree of the person natural in the estimation of the Law: So if that he be within age, he shall be ad∣judged of full age, and his attainder frustrate when he is King, that the greater removes the Imper∣fection of the Lesser (before fol. 138.) the body [unspec 245] politick hath the preheminence of the natural body, as Land given to the King by the name of Baptism, and of King also; as to Henry the King, and to his Heirs, this shall go in succession as the Crown, and if he dieth without issue, the Heir of the part of his mother which hath the Crown, shall have the Land also; because this name [King] being the greater, shall have the greater preheminence in the pur∣chase,

and shall draw the land with him: So that his brother of the half bloud being King, shall have it; yet here the King shall take in such body, and in such estate and condition as the Donor limits, and not otherwise. So if a Gift had been made be∣fore the Statute to the King, and the Heirs of his Bo∣dy, he had taken Fee Conditional, as another Common person, That if he dies without issue the Donor should enter without Office. And if the King before the Stat. giveth to one, and his Heirs of his body, there the King shall not have the Reversi∣on more then a Common person should have, and there his Donee might alien after issue, because the person of the King shall not rule the estate of the land; but on the contrary, for to make Remitter right, and possession ought to discend to one per∣son, simul and semel, 19. H. 6.59.58. and 45. before the Statute after Issue; the Donee might do all [unspec 246] acts of a full Fee, because then he had full Fee and inheritance, and not before, 5, 6, 7, and 8. E. 3. And the words in the Statute hath given prius facia non extenditur, intends not the Donees made by the Donors before the Statute, but of alienations made by the Donees before the Statute, and lawfully, and after issue, as a Lease for life, and release of Tenant in Tail before the Statute, good, and barred the issue in Formedon after the Statute, because it was not voidable, neither before, nor after the Act, if it was according to the power that the Common Law permitted to them. 44. E. 3. But the Statute extends as to Alienations after the Statute where the Gift was before. So as to the Alienation be∣fore the Statute, if it were not lawfull, as a woman Tenant in Tail, taketh Husband, having issue, they alien before the Statute, the issue shall have a For∣medon

after the Statute, that is a discontinuance to the wife, because Covert; and when she dies, a right discends to the issue; but if they have aliened by Fine, it is good, and bars the issue because there it is duly made, in respect that she is examined, 4. E. 2.12. H. 4.7. before the Statute the King might not Alien before issue had, as a Common person might not, because the King could not do wrong, and his Prerogative could not alter his estate, yet the person of the King might alter the course of the [unspec 247] thing, as purchase of the King shall discend to the eldest daughter onely; but if land discend to the King, & another, or Gavel kind to him and his bro∣ther, the King shall have but the Moity, but this Moity shall discend to his eldest Son onely, because the quality of the person may alter the discent, not the estate, be it Fee, or Tail. So that the estate shall be in the King, as in another (before fol. 234.) and before issue had, the Donee could not alien, after issue he might; and this mischief, and other Acts of the Donee, the Common Law permitted to Bar is∣sues, and the Donor, until remedied by the Statute. So the Common Law permits other wrongs, as Lessee to make waste. So if one Joynt-Tenant takes all the profits of the land, the other is without remedy at the Common Law, Doctor and Student fol. 32. So if the King kill a man: So disinheriting of another, as here post prolem, is a wrong suffered by the Common Law, which otherwise the issue should have had, and if the issue had not issue, then the Donor; before the Statute the Donor had not a Reversion, yet the land reverted to him as land es∣cheated to the Lord, neither had he a Reversion af∣ter the Statute of W. 2. c. 1. Yet no word in the Act divides the Statute, but the Construction of the

Statute ex consequenti divides the estate, for to ex∣ecute the will of the Donor by the intent of the act, which amounteth to so much, that the precise words and the Statute restrains the estate, and not the per∣son of the Donee.

And the Prerogatives are in respect of the person of the King, and goes in his person, which the King by Prerogative, without other act, cannot enlarge; but in taking of the estate is restrained with the estate, insomuch that the act saith Dominus, Rex perpendens, &c. It sheweth that the King is named effectually, and so bound; and when it provides re∣medy for the mischief, it is not to be presumed that he intended to be at liberty to do the mischief; every thing which is the intent of the donor, shall be within the Stat as plainly as if it had been expressed as other estates Tail, which are not mentioned in W. 2. Litl. fol. 5. Lands intailed shall not be charged a∣gainst the issue for the debt of his father to the King, by Anthony Brown, who said, That it was so ad∣judged in William Browns case, which was his Fa∣ther, Puttrel, fol. 240. otherwise, which proves, that the Statute of Donis Conditionalibus binds the King.

Dier, Chief Justice. The King onely is a good name of purchase, and is the highest name of honor, and drowns all other names of honor, and is cer∣tain enough, but not so used without his name of Baptism. And the name King, contains both bo∣dies natural and politick; and Heirs, implies Heirs and Successors, and the adding of Successors is a new devise. The Donor may limit in what ca∣pacity the King shall take, and ••ail may be to the King as well as to a Common person. That H. 8. entailed the Crown to him, and the Heirs of his bo∣dy;

the will of the Donor is the effect of the Sta∣tute of West. 2. that every thing which is against his will, is reformed by the Act, and every thing which is his will is made Law by this Act; and therefore this Tail shall not be forfeit for Felony, Litl. 169. it shall not be charged by the donee, 14. H. 8.7. by Roo 5. H. 6 14. nor alien, neither shal the second wife be endowed, 46. E. 3.24 nor the second Tenant by the courtesie now, 46. E. 3.5. and to express those in the Act is superfluous, because included in the proviso quod voluntus, &c. And these three Tails mentioned there, viz. Special, General, and Free Marriage, are but examples, and not as containing all Tails, that his will is a law to limit other Tails, Fee after issue at the Common Law is Tail now, 12 E. 4. and 3. and Fee in the Donor by implica∣tion of the Act, because it restrains the Donee to do the Acts of Fee, or no Fee without his properties. And therefore it shall be intended, That the Act would not that the Donee should have Fee, because it would not make an Act of Fee; and it is no Tail, because the Statute is limitted, Docked or cut off.

The King shall be bound by the Statute of W. 2. de donis conditionalibus, for that it is made in preser∣vation of the inheritance, in benefit of the Common wealth, and in restitution of the observation of the intent and will of the giver; and in Restitutions the King hath no favor, but the party restored in fa∣vor, as an Heir restored to a Mannor shall have the advowson without mentioning of it. So a Bishop to the Temporalties shall have Knights Fees, and Advowson, 5. E. 3.238. 41. E. 3.5. and Brian, Townsend, Davers and Vavasor, who took this so, or thought that the King should have but an estate

tail, that otherwise the Remainder over will be in∣vailable; and the Exposition that the Denee might alien after issue before the Statute, is Communis Er∣ror.

Notes

• 4. Eliz. in C.P. in an Ej. firme.