The Case of John Danvers Esq; inter Rich. Browne Quer' & Wait Defend '  
HEnry Earl of Danby, by Deed and Fine, 
4 Car. 1. Anno 1629.  settles the Manor of Daunsey in Wiltshire upon himself for Life; Remainder to Sir John Danvers his Brother for his Life; Remainder to Elizabeth Wife of Sir John Danvers for her Life; Remainder to the Heirs of the Body of the said Sir John Danvers; Remainder to the right Heirs of the said Earl.  
Henry Earl of Danby, and Elizabeth the Wife of Sir John Danvers, died before the Year 1646, and the Earl left no Issue, whereby Sir John Danvers became his Heir at Law; and by the said Settlement was (in the Year 1646) seized of the said Manor in Tail, and as Heir at Law to the Earl, had the Reversion in Fee.  
Sir John Danvers being so seized by Deed, dated 5ᵒ May 1647, 
Anno 1647.  Covenants to levy a Fine, with Proclamations of the said Manor, to the Use of himself, and the Heirs of his Body, Remainder to his own right Heirs; and the Fine accordingly had.  
Sir John Danvers, 17 April 1655, died seized, leaving Issue John Danvers his Son and Heir, Lessor of the Plaintiff.  
In the Act of Indemnity, 12 Car. 2d, there is a Proviso, 
12 Car. 2d. cap. 11. Anno 1660.  that nothing in the Act contained shall extend to discharge the Lands, Tenements, Goods, Chattels, Rights, Trusts, and other Hereditaments of the said Sir John Danvers, and others therein named, of and from such Pains, Penalties, and Forfeitures, as by one other Act of Parliament intended to be thereafter passed for that purpose, should be expressed and delared.  
By the Statute of Pains and Penalties, made the next Parliament, 
13 Car. 2d. cap. 15. Anno 1661.  13th Car. 2d, reciting the said Proviso in the Act of Indemnity, it is enacted, That all and every the Manors, Messages, Lands, Tenements, Rents, Reversions, Remainders, Possessions, Rights, Conditions, Interests, Offices, Fees, Annuities, and all other Hereditaments, Leases for Years, Chattels real, and other things of what nature soever they be, of the said Sir Jonn Danvers and others therein named, which they, or any of them, or any other Person or Persons to their Uses, or in trust for them, or any of them, had 25 March 1646, or at any time since, shall stand and be forfeited unto his Majesty, his Heirs and Successors, and shall be deemed, vested and adjudged, to be in the actual and real Possession of his Majesty, without Office or Inquisition thereof to be taken or found.  
Sir John Danvers by neither of the said Acts, nor any other, is attained of Treason.  
King Charles the 2d, by his Letters Patents, 
14 Car. 2d. Sept. 20.  grants the said Manor to the Duke of York and his Heirs; who getting into Possession, Mr. Danvers as Lessor, in the Name of the Plaintiff Richard Brown, brought his Ejectment to try his Title; which came to a Trial at the King's-Bench Bar, Sir Matthew Hale being then Chief Justice, who directed a special Verdict, and therein the Matter above found, for the Judges to determine the Law, wherein Chief Justice Hale seemed of Opinion for Mr. Danvers' Title: but before any Judgement given, he was removed; and Chief Justice Rainsford succeeding him, Judgement was given for the than Duke of York. Who after he came to the Crown, by Letters Patents settled the said Manor, amongst other Lands, upon trusties for his Queen during her Life.  
Mr. Danvers, since 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 against him (though some were for him) the Judgement given in the King's-Bench was affirmed. And whilst the Writ of Error was depending, the Earl of Monmouth procured a Grant from their present Majesties of the said Manor to him and his Heirs.  
Mr. Danvers hath now brought a Writ of Error in Parliament.  


The Questions are principally two, (viz.)  
Whether an Estate Tail be given or forfeited to the Crown, Quest. 1 by the said Act of Pains and Penalties?  
If not: Quest. 2 then, Whether by Sir John Danvers' Fine in 1647, the old Entail in the said Manor be so extinguished, that the remaining Estates therein are given or forfeited to the Crown by that Act?    
Judgement was given, both in the King's-Bench and Exchequer-Chamber upon the first Point singly.  
It is conceived that Mr. Danvers is entitled to an Estate Tail in the Manor of Dauntsey, notwithstanding the said Act or Fine.  
1. 
Stat. West. 2d. 13 E. 1. c. 1.  By the Statute de donis Conditionalibus, no Estate Tail was forfeitable for Treason, till the Statute 26 H. 8. cap. 13. which gives no forfeiture of an Estate Tail, but where the Tenant in Tail is convicted of Treason, according to the course of the Common Law; which Conviction, or Attainder, fails in this Case.  
2. The Statute of Pains and Penalties, hath no words that import a Forfeiture of an Estate Tail, for the words in that Act only describe the Ching to be forfeited, and not the Estate therein, and are not of the same import as the words of the Statute of 26 H. 8. that makes an Estate Tail forfeitable for Treason, by the Exposition of the Judges; who grounded that their Opinion only upon these words in that Statute, (whereof they are seized of any Estate of Inheritance) because an Estate Tail is an Estate of Inheritance; Which words, or any other to the like effect, are wanting in the Act of Pains and Penalties.  
3. It is agreed, that if this Statute had been made before 26 H. 8. the Estate Tail would not have been forfeited; and there's no more reason it should be forfeited now, since Sir John Danvers was never Attainted. And it is to be observed, that Penal Statutes, such as this is, are always construed strictly, and most beneficially for the Party accused: Which will the rather be so in this Case, because the Parliament did not Attaint Sir John Danvers, but designed Favour to him, which they refused to others in the like Circumstances.  
As to the second Question, Quest. 2 it is answered, That the new Estate Tail, created by the Fine and Deed in 1647, is not forfeited by the Act of Pains and Penalties; because the old Estate Tail could neither be extinguished nor merged in the Reversion in Fee-Simple, which all will allow. And the Fine rather bars the Issue to claim the Entail, than transfers it to the Connusee; so that the old Estate remains in Effect, and the Use declared upon the Fine is executed the same moment, and leaves no Estate in the Connusee forfeitable. Hence it follows, that the new Use to Sir John Danvers, and the Heirs of his Body, is derived out of the old Entail, that was as large, and equal with the new One, (and which was not forfeited) and not out of the Reversion in Fee that is owned to be forfeited.  
It has been objected, Object. That unless this Manor of Dauntsey be forfeited by the Act of Pains and Penalties, though Sir John Danvers be named in the Act, yet his Posterity will not suffer any thing by it, which (say they) could never be the Intent of the Parliament.  
It's answered; Answ. That Mr. Danvers hath lost by this Act, Lands to the value of 1500 l. per Annum, which descended to him in Fee-Simple; and other Children of Sir John Danvers have lost near as much.