[257 a] the stat. 4 H. 7. and 32 H. 8. and the sta Cr. Car. 476. 9 Co. 140. a. b. 9 Co. 141. a. But yet I answer, that the entail, whi DUNCOMBE 08. WINGFIELD. Post 332 & Co. them, together with the other stat. of ot upon all occasions. perplexities, and appearing coneasure clear that learning, that uance of jointures in tail, have in- 78. a. conditionalibus, and that the stat. and [257] destroyed perpetuities, to cease for a time, and to one person, and have great an estat ther's fine given to --༥ 08 the case upon Westm. 2. n the land was given shall have put that it shall remain to the issue. case, fo. 160.38 E. 3. 21. 9 E. 3, 16, &c. ant in tail have issue three sons, and discontinue, e middle son release and bind him and his heirs to arranty, and the middle son dies, and then the father dies; this warranty is collateral to the elder, and lineal to the younger; because by possibility he might have claimed from him of that entail, and so within the intent, not the letter, of the law, as here it is. So this land now cannot descend unto the heirs in Archer's case, (to return to that case,) because the descent is stopt and strangled: yet I hold it clear, that the grandfather, after the fine levied, may himself alien: for, as it were against reason, so the statute hath no letter to bar his ancestors, but his heirs only that levied the fine; so no saving is needful. DUNCOMBE VS. WINGFIELD. [258 b] re in Archer's case, if after the fine levied 1 Cr. 435. Jones 61. 3 Co. 141. Saund. ail, (for they are barred, and their Yel. 101. 9 Co. and so the stat. of West. 2. set 261. Hutt. 84. 415 conditionalibus, and that the stat. and [257] ance of jointures in tail, have in- 7833. 8Co. them, together with the other stat. of rplexities, and appearing con all occasions. or a time, and re clear that learning, that , and have oyed perpetuities, by con 1 Cr. 435. and against the father's con doth but extinguish the tail, yance that had not so much effect of the fine (as to Co. L. 277. a. sues in tail) to the or- ght or possibility, o if the father's les finis nihil, - shall plead the fine aise, which the other shall the fine, and partes finis nihil, issue in tail, for he is a privy. 266. a. 3 Co. 88. a. Co. 140. a. rd case, the stat. of 11 H. 7. makes it as is To the third. orge Brown's case, Co. lib. 3, fo. 50. b. Bridges u his wife, tenants in spec. tail of the provision of the husband, within the statute of 11 H. 7. rem. to Bridges in fee, had issue Anthony Bridges, and died; Anthony levies a fine to Brown, and then the mother made a discontinuance: Brown may enter, not by the possibility of his estate arising out of the entail, (for he could not have an interest in that, because the whole entail was actually without change in the mother,) but by the fee-simple. And so Yel. 101. Cr. also is Wimbish and Talboy's case; so then the tail cannot be alienated by the mothers, by reason of the restraint of 11 H. 7. neither can descend by reason of the fine by the issue in tail in her life. Jac. 173. As to the fourth and last, one may be seised of a perfect estate in tail, and yet the same can neither be aliened nor descend, as in the case at bar, and in Beaumond's. [259] [258 a] 1 Cr. 524, 543. Mo. 252. Jones 34. Po. 332, 333, 334. son should claim as heir in tail to the grandfather as last seised by the entail, yet he must claim as heir in blood by the father, and so falls plainly within the words as heir of the person that levied the fine, and claiming only by an entail made to the ancestor of him that levied the fine. And I hold that if tenant in tail have issue three 1 Cr. 435. sons, and the second son levy a fine with proclamations, in the life of his father, who dies, this shall not bar the elder brother: but if the elder die without issue in the life of the father, the second shall be barred and if the elder die without issue after the death of the father, so as the elder had the whole tail, yet if the second or his issue survive, and then die, it shall bar the younger, (for he is plainly within the words,) as well as the second that levied the fine. The words of the stat. of 32 H. 8. are, that a fine levied of lands in any wise entailed to the conusor, or any of his ancestors, shall be a bar against the person and his heirs, claiming only by force of such entail, any doubt, &c. So the fine doth bar heirs of the entail in many cases, where the conusor cannot give the land because he hath it not. Litt. Sect. 708. And therefore I match it with the case upon Westm. 2. de donis. They to whom the land was given shall have no power to alien, but that it shall remain to the issue. Now see Littl. case, fo. 160.38 E. 3. 21. 9 E. 3, 16, &c. That if tenant in tail have issue three sons, and discontinue, and the middle son release and bind him and his heirs to warranty, and the middle son dies, and then the father dies; this warranty is collateral to the elder, and lineal to the younger; because by possibility he might have claimed from him of that entail, and so within the intent, not the letter, of the law, as here it is. So this land now cannot descend unto the heirs in Archer's case, (to return to that case,) because the descent is stopt and strangled: yet I hold it clear, that the grandfather, after the fine levied, may himself alien for, as it were against reason, so the statute hath no letter to bar his ancestors, but his heirs only that levied the fine ; so no saving is needful. [258 b] 1 Cr. 435. 141. Saund. 1 Cr. 435. And therefore in Archer's case, if after the fine levied by the father, the grandfather had made a feoffment to a stranger, yea, or but a bargain and sale in fee, and had 2 Cro. 608. died, this bargainee should have both holden the land Jones 61. 3 Co. against the issue in tail, (for they are barred, and their Yel. 101. 9 Co. right extinct by the fine, and so the stat. of West. 2. set 261. Hutt. 84. loose not to the reversion,) and against the father's conusee; for the fine in this case doth but extinguish the tail, but cannot give it by his conveyance that had not so much as right or a possibility, though there were a possibility. So the stat. leaves the form and effect of the fine (as to Co. L. 277. a. all purposes and persons, but the issues in tail) to the ordinary rules of law, whereof. one is, that a conveyance to one by him, that hath but a naked right or possibility, works by the extinguishing of it in the possession. S. Moyle Finche's case, Co. lib. 6, 70. a. So if the father's conusee will claim, the other shall say partes finis nihil, &c. If the issue in tail will claim, he shall plead the fine with a que estat. though it be false, which the other shall not deny, but must answer the fine, and partes finis nihil, &c. is no plea for an issue in tail, for he is a privy. 266. a. 3 Co. 88. a. As to the third case, the stat. of 11 H. 7. makes it as is To the third. Sir George Brown's case, Co. lib. 3, fo. 50. b. Bridges and his wife, tenants in spec. tail of the provision of the husband, within the statute of 11 H. 7. rem. to Bridges in 9 Co. 140. a. fee, had issue Anthony Bridges, and died; Anthony levies a fine to Brown, and then the mother made a discontinuance: Brown may enter, not by the possibility of his estate arising out of the entail, (for he could not have an interest in that, because the whole entail was actually without change in the mother,) but by the fee-simple. And so Yel. 101. Cr. also is Wimbish and Talboy's case; so then the tail cannot be alienated by the mothers, by reason of the restraint of 11 H. 7. neither can descend by reason of the fine by the issue in tail in her life. Jac. 173. As to the fourth and last, one may be seised of a perfect estate in tail, and yet the same can neither be aliened nor descend, as in the case at bar, and in Beaumond's. [259] [259 a] 9 Co. 142. b. Jones 401. 2 Ro. Rep. 490. 4 Le. 57. 144. 2 Cr. 688. It cannot descend to the issues from the mother, though the whole estate tail be in her, because they were barred by the father's fine before; it cannot be aliened by the wife, because also it was aliened before by the husband, in a sort obliquely. For though it be true, that when the husband hath levied a fine, and die, and his wife enter, the estate is wholly in her, so the alienee hath no part of the estate tail in him, nor any estate derived out of it, but it is wholly evicted, so that if there be no issue of the entail, the husband's conusee hath lost the estate for ever; yet if there be issue in tail at the death of the wife, the estate of the conusee shall rise again so soon as she dies, by force of the husband's fine, and that ipso facto, without entry, as upon a cessor of the wife's estate; like unto Chudleigh's case, of contingent uses arising and falling, where there is no disturbance to the possession. So when the wife enters upon the conusee, that which was in him as a base fee simple, so long as the entail lasted, is now in the wife a perfect entail again, but to endure only during the life of the wife, and then to return again to the conusee, so long as there shall be issues. So then the case is, that the entail remains in the wife remitted, but neither to be aliened nor descend, which are incidents inseparable, but by act of parliament. So dean and chapters have a fee simple to retain and go in succession, but not to alien. But now to all other purposes the . entail abides, and is in the wife in the same estate as it was before. For first, though the issue be disinherited, so as it is all one to the tail as if there were no issue, yet she is no tenant puis possibility, or in that degree, as it is resolved in Beaumond's case. Also she may make leases for three lives, under the old rent, &c. according to the statute; and it shall neither be forfeiture nor discontinuance, as it is also observed there. I hold it also clear, that in this case of remitter, and in the case of entry of the wife, as in Beaumond's case, she |