But now it is objected, that the case differs from that it [255 b] was at the common law, for two special reasons. The first, that the second estate to the wife, in this case in question, grew by a use declared to the husband and wife in tail, upon a fine by the husband only; which estate coming in place of the use, must, by force of the statute of uses, be such in quantity and quality, as the use was, which was out of a new estate and not of the old, whereunto the remitter should be. The second objection is, that the first estate being to Dy. 351. b, the husband and wife in special tail, so that issues inheritable must claim as heirs to the husband as well as the wife, his fine hath utterly barred those issues and himself, and hath extinct the entail, and so consequently that estate cannot be remitted. Post. 298. As to the first objection, I confess it is clear, that if an Co. L. 348. b. infant or a woman, having right of lands discontinued, wherein entry was not lawful, if the same infant, or woman covert come to that land by way of an use raised out of that estate, the first taker of such estate shall not be remitted, for the violence of the letter of the stat. 27 H. 8. And the first taker in this case, is to be understood of the first taker of every several estate, as well in remainder as in possession. Dy. 77. b. Dy. 23. b. Plo. 114. a. b. Dy. 54. b. Plo. 207. b. And therefore, 34 H. 8. Dyer 54, Amy Townsend's Co. L. 348. b. case. Tenant in tail made a feoffment in fee to the use of his wife for life, the remainder to next heir of that entail; a. Dy. 77, 106, he shall not be remitted, no not if he had the use by de- 126. 1 Co. 102. scent, as Simon's case, and Marmaduke's case, 6 E. 6. if he were the first to whom the possession was first transferred by the statute; for then still he falls within the letter of the law, that he must be in of the estate, as he was of the use; and yet he hath both the freehold and the right, and that without his fault, and can have no action; which are Littleton's grounds and reasons of remitters. Note, an act of parliament hath every man's consent, as well to come, as present, and so he is here an author of his own hurt, and also he must hold it as the act gives it, having power to bind every man's right, either finally or [256] Parliament, B. 42. Co. L. 95. Plo. 59. a. Pal, b. 6 Co. 12, 27. 541. Co. L. 341. [256 a] sub modo, as here it is for the first taker. And therefore are savings or strangers' rights in acts of parliament. See M. 15 and 16 Eliz. Dyer 329 and 351, which is a stranger case. Custuy que use in tail, remainder to a stranger in tail, remainder to himself in fee, made a feoffment before the statute of 27 H. 8. to the use of himself for life, the remainder to his eldest son, heir of his first entail, and his wife for life, and died. Plo. 114. Cap. 28. Co. L. 236. a. Now the son was in, by the statute, of the new estate. But the first taker of a remainder may be remedied by accident, that is, if a remitter happen to another before the land come to him. As if A. be tenant in tail, the remainder to B. in tail, and A. make a feoffment to the use of himself in tail, the remainder to B. in tail again, and then the statute executes the uses. Now both A. and B. have their estates de novo. But if A. die, now his issue shall be remitted; and so by consequence shall B. in remainder be remitted, though he were a first taker. Note, that in Amy Townsend's case it was objected, that there was a saving of rights in the statute of uses, and, by consequence, of remitters; whereunto in the argument there was no answer made by the adverse counsel. But Plowden, the reporter, notes, that the saving is only of former rights. But that answer satisfies not for it saves rights after the statute; but the saving indeed preserves rights, but to be recovered and remitted, as may stand with the stat., not against it. But I answer to this, that the stat. of 32 H. 8. hath changed the reason of this case, and hath given the wife entry against her husband's fine; so that now, by the use raised unto her out of such estate, she is not in of an estate discontinued, but of an estate whereupon, after the death of her husband, she might have reentered. Now as upon reentry in such case where the entry is lawful, she is remitted, so where an estate is conveyed unto her, and is in her, though by the statute, her entry being lawful, she shall be judged in of her best estate, her remitter being intratio legitima, though not actualis; and so is Dyer, 192. [256 b] But then it is again reobjected, that yet, at least till there be an actual entry, the estate shall be judged in her as the use was, which was out of the new estate; according to the opinion of the counsel that argued against the remitter in Amy Townsend's case, of a feoffment made by Plo. 114. a. a disseisor to the use of the disseisee, that the disseisee should not be remitted till an actual entry. To 3 Cr. 20. Co. of To this I answer, that I hold the law not to be so. which purpose, see Littl. 157. If a man have right entry, and take estate, being of full age, &c. he is presently, without entry, remitted, though he took the estate by contrary conveyance; but he says, that if he take but a lease for years, that doth not remit him but upon his actual entry. And yet I answer further, as clear, that the jury find, first, this second fine to the issue of the husband and the wife in special tail; and that by force thereof and of the stat. of uses, they were seised accordingly. But then they proceeded further, and say, that they were both in actual possession of the land. Now the actual possession, which imports entry of the husband, must be according to the estate, which is entire and indivisible with his wife; which is the reason also of the entire remitter to the husband. So then it appears plainly by the verdict, that there was actual entry by and for the wife, which makes an end of that objection. L. 361. Lit. Sect. 693, 695. Co. L. 363. b. [257] Mo. 28. 8 Co. As to the second objection it is also true, that by the 6 Co. 139. a. fine of the husband alone, the entail to the issue is finally 72. a. and totally barred; and so are the cases 18 Eliz. Dyer 351. and 269. and Beaum. case. And so also, and upon the same reason, is 16 Eliz. Dyer 332. Attainder of treason of the father forfeits the lands against the issues, which are grounded upon the force of the letter and meaning of 9 Co. 140. a. D [257 a] Cr. Car. 476. 9 Co. 141. a. Stat. 4 H. 7. and 32 H. 8. What confusion they have made upon entails. the stat. 4 H. 7. and 32 H. 8. and the stat. of treasons, 26 H. 8. 13. . But yet I answer, that the entail, which is barred to the issues, yet remains, notwithstanding this fine to the wife in right, as to herself, and to all estates and remainders depending upon it, and to all the consequences of benefit to herself, and to others by her as long as she lives, as amply and beneficially as if the fine had not been levied. And therefore first take Beaumond's case, Co. 1. 9. 140. which was, that John Beaumond and his wife being seised in special tail, remainder to John Beaumond in fee, he alone levied a fine to E. 6. in fee, which estate came to the Earl of Huntington in fee. Beaumond having issue, died; his wife entered; the Earl of Huntington confirmed the estate in the wife, habendum to her and the heirs of the body of her and her husband: and it was ruled that the confirmation wrought nothing, because she had as great an estate before; and also the issues could not be made inheritable, which were before barred by their fa ther's fine, and the estate tail as against them lawfully given to another. And it was further resolved by way of admittance, that if the remainder in fee had not been to Beaumond himself, but to a stranger, the entry of the wife had restored that remainder to the stranger, and had left nothing in the cognisee but a mere possibility; so she hath the tail, not only for herself, but to the benefit and beneficial to other estates growing out of the root with his. And yet, during the life of Beaumond, the entail had been barred, and all had been in the cognisee, and the wife had had nothing but a possibility viá versâ. Now it is plain and must be confessed, that the remitter in this case is to all purposes as effectual, not only to the wife, but to the rem. and estates depending, as was the entry in Beaumond's case. For remitter is as an entry in law; the law changing the estate as an entry, if it could be had, should. Now because the statute of H. 7. and especially 32 H. 8. hath made a more absolute subjection of entails to fines with proclamations, than the common law did since the Post 332. & Co. statute of donis conditionalibus, and that the stat. and [257 b] the exposit. upon them, together with the other stat. of 11 H. 7. of discontinuance of jointures in tail, have in- 78. a. duced many intricacies, perplexities, and appearing contrarieties, let us in some measure clear that learning, that we may see a way through it upon all occasions. It hath been a rule that hath destroyed perpetuities, that an estate cannot be made to cease for a time, and then to rise again; or to cease as to one person, and have being to another; or to deprive a tenant in tail, by condition or limitation, of power of alienation, by fine or common recovery: yet in these points these stat. have induced all these singularities into entails. And therefore, at this day, 1. First, An estate tail may cease for a time, and yet rise again, and may cease to one person, and be in force et esse to another. 2. Secondly, An estate in tail may be in itself perfect, and may be aliened, and yet cannot descend, though there be issues of the entail. 3. Thirdly, An entail may descend and cannot be aliened. 4. Lastly, An entail may be full, and yet can neither descend, nor be aliened. Also, as to the first, Beaumond's case is so, that the To the first. husband's fine alone binds the entail, so as during his life all is given away, and there is nothing left but a mere possibility, that if the wife survive, she shall be again, upon her re-entry, tenant in tail in state as before; so it Dy. 122. b. is ceased for that time, and the issue barred; but as to the wife, if she survive, the whole tail revives and is restored to her. [258] To the second. 3 Co. 90. a. 1Cr. 435. Post 333. Mo. 147, For the second, see Archer's case, judged 20 Eliz. in the common pleas; that if the grandfather be tenant in tail, and the father disseise him, and levy a fine, and then the grandfather die, and also the father, that the son issue 252. Jones 33. in tail shall be barred. And the same I hold, if the father had levied this fine without disseising his grandfather, or if he had died before the grandfather; for though the |