coke b W Beaumont case pasch James in the court of ware husband and wife be  tenant in special tail of certain land remainder to the husband in fee by gift  after their marriage the husband levy a fine come Ceo with proclamation of the  say land to king e his heir and successor king e by his letter patent grant  the say land to the earl of h in fee the husband die the wife enter within  five year the earl die and his son and heir by indenture recite the gift to  the husband and wife in special tail and that the wife be then seize in fee  tail confirm her estate to the say wife habendum to her and to the heir of the  body of herself and her decease husband hold the wife after the death of her  husband have a estate in special tail which shall have continuance as long as  the wife life or the heir in tail remain but the fine be a good bar to all  their issue for in make out their title they must show themselves heir to the  father as well as to the mother there may be a estate tail and yet all the  issue in tail bar from inherit the confirmation be inoperative the  circumstance oh this case come again before the court baker v Willis cro car  sc no Dixie v Beaumont W Jones Inst sir Humphrey foster seize in fee of the  scite of the monastery of Gracedieu and other land in question give they to  John Beaumont and Elizabeth his wife and the heir of their two body beget the  remainder in fee to John Beaumont year e John Beaumont levy a fine come Ceo to  king e his heir and successor with proclamation king e year grant the say  scite c by his letter patent to Francis earl of Huntingdon and his heir John  Beaumont die after who death Elizabeth within five year enter claim her estate  the say Francis earl of Huntingdon die Henry his son and heir year Elizabeth  by indenture recite the say gift by sir Burgundy foster to the say John and  Elizabeth his wife in special tail and that Elizabeth be then seize in her  demesne as of feetail by force of the say gift ratify allow and confirm to the  say Elizabeth her estate habendum the land to her and to the heir of the body  of the say John Beaumont decease and of the say Elizabeth the say Elizabeth  die seize have issue Francis Beaumont one of the justice of the common plea  son and heir of both their body Francis Beaumont enter into the say scite c  and take the profit c and afterward accept a fine with proclamation sur  conusans de law so much of two stranger with a render for ninetynine year  after the death of the say Francis if whether coke a his wife shall so long  live the proclamation pass Francis Beaumont have issue sir Henry Beaumont his  elder son and John his young son die sir Henry be in ware to queen Elizabeth  attain to his full age a Elizabeth and before livery by indenture James  covenant upon good consideration to stand seize to the use of himself and the  heir male of his body and afterward to the use of John Beaumont his brother  and the heir male of his body with diverse remainder over sir Henry die  without issue male have issue Barbara who be now of tender year and in ware to  the king the question be whether the say scite and land belong to Barbara or  to the say John Beaumont and in this case two point be coke report b er p move  and argue by counsel on both part know in the term of Trinity Michaelmas and  Hilary by Coventry Thomas crew and George crook on the king part and by finch  Walter and Harris sergeant on the part of the heir male and the saint point be  if by the fine levy with proclamation and the death of John Beaumont the wife  have but a estate for life dispunishable of waste as tenant in tail after  possibility of issue extinct the d admit she have a estate tail what be  wrought by the say confirmation if thereby the issue in tail shall inherit or  not as to the first it be object that by the fine levy by the a husband the  estate tail be bar because the issue ought to make himself heir of both their  body as it be adjudge in Elizabeth b so and for the same reason if one donee  be b attaint of treason the estatetail be extinct as it be express hold in  Elizabeth dyer b and therewith agree c h b by Brian chief justice of the bench  from thence it follow that the wife can be seize of a estate tail because the  estatetail by fine be bar and extinct and therefore for necessity of reason  the estate of the wife shall be d change into a estate for life dispunishable  of waste and it be resemble to the case in h b husband and wife tenant in  special tail be e divorce which be intend of a divorce which dissolve the  marriage ab beginning and the husband and wife a chain marriage the donee have  but a estate for their life because the estatetail be determine and extinct it  be also urge that if the wife shall have a estate in tail then she may f  suffer a recovery or levy a fine and so bar the conusee of her husband or  prevent the king of his forfeiture for treason which will be against the  resolution aforesaid report by the Lord dyer then if the estate be convert  into a estate for life dispunishable of waste g in the nature of a tenant in  tail after possibility of issue extinct sequitur that the confirmation enlarge  her estate and make Barbara daughter of sir Henry inheritable to the land but  admit for the argument of the second point that the say Elizabeth have a  estate in special tail the reversion expectant to the say Henry earl coke b of  Huntingdon to take effect in possession in respect of the say fine levy by the  husband immediate after the death of the say Elizabeth then the second point  be if against the say confirmation make by he who have the reversion in fee  expectant as be aforesaid he shall not enter into the land after the death of  Elizabeth or if the confirmation to Elizabeth in tail ut above make the issue  of the say John and Elizabeth inheritable and it be strong urge that the issue  shall be inheritable by the say confirmation for two reason one in respect of  the estate of he who have make theconfirmation by way of extraction of a new  estate out of the reversion the other in respect of the estate of he to who  the confirmation be make by way of incorporation and alteration of the quality  of the estate as to the first the say earl have the entire reversion in fee  out of which he may raise and create as many estate a   a b die pl Inst hob  Leon more Brownl Dall in kelw pl Dall in ash pl Dall pl and pl godb n Benl pl  Benl in ash pl Benl in kelw pl roll Rep more pl pl Cr car Jones roll Rep   b  light Rep hob   a b more and pl raym godb roll Rep more pl die pl hob Cr car  Brownl Jones c Inst godb h a d Inst e post Inst Br tail Br estate Br deraignm  divorce oh light a f post b hob Leon roll Rep roll Rep winch g   a dr Stud lib  cap light sect h b a h b e a e b h b a h b roll roll Rep west Symb b   a Inst    a   light b f n b p e a b coke report a er p in tail one after the other as  he will and therefore when he confirm the estate of the wife to have and to  hold to her and to the heir of the body of the say John and Elizabeth thereby  the earl have exclude himself and his heir by express word so long as the say  John and Elizabeth have heir of their body to claim the land as if a feme a  covert be tenant for term of her life the reversion over in fee if he in  reversion confirm the estate of the husband and wife to have and to hold to  they for term of their life in that case the husband shall have a estate for  life after the death of his wife for it will be against reason that he who  have the reversion in fee out of which he may derive as many estate for life  as he will shall enter into the land after the death of the wife during the  life of the husband against his own confirmation when the husband have such  estate upon which the confirmation may enure by way of extraction of a new  estate out of the reversion and therewith agree light f b b e b so in the case  at bar it will be against reason that the earl who make the confirmation after  the death of Elizabeth shall enter into the land against the limitation of his  own confirmation videlicet so long as the say John and Elizabeth have heir of  their body second in respect of the estate of the say Elizabeth for this  confirmation alter the quality of her estate and thereby incorporate a new  quality in the estate for where the earl after the death of Elizabeth may have  enter and exclude all the heir in tail now by this confirmation he have add  this enlarge quality to make all the heir in tail inheritable and that a  confirmation may alter or add to the quality of the estate in land appear in  our book and therefore if the lessor confirm the estate of his lessee for life  and add this clause without c impeachment of waste it be good so if coke a the  iord paramount confirm the estate of the mesne with clause of acquittal it be  good e h b f n b vide e d Isabel de Upseys case so a confirmation may alter  the quality of the estate of the land as if the estate of the feoff be upon  condition the feoff may confirm his estate absolute and so alter the quality  of the estate of the land S from e conditional into absolute h b and Mayowes  case in the first part of my report f so in e a b if the lord of a ancient  demesne confirm the estate of the tenant to bold by certain service ad common  feature law although the estate of the tenant be not change nor any  transmutation of the possession yet the quality of his estate be change for  the tenant shall not be afterward implead by petit writ of right close and the  land by the confirmation be discharge from the custom of the manor so in the  case at bar although the estate of Elizabeth be not change nor any  transmutation of possession have yet the quality of the estate of the say  Elizabeth be change by incorporate of a quality to the estate of the say  Elizabeth S that the heir in tail shall inherit as to the first point it be  answer and resolve that the wife b after the death of her husband have a  estate in special tail and for the better understanding of the true reason  thereof let we see by what law the estate of the wife shall be alter and  change to a estate for life and first it be resolve that it be not by the a  Plowd b a Cr car light sect   light a b Cr Elizabeth kelw a b   light b  Fitzherbert confirm c   a a a   b b roll Rep roll Rep more Inst hob Popham   a  latch Bridgm dyer pl Plowd b Cr James roll   a hetl v   light a h b e a d e a  e   b Poph   light a postea a postea a a roll Fitzherbert ancient demesne Br  ancient demesne postea a b Cr car Cr James   b hob Jones godb die pl n Benl pl  ander pl Benl in ash pl Benl in kelw pl b pl Dall pl winch coke report b er p  commonlaw for at the commonlaw if land have be give to husband and wife and to  the heir of their two body and after issue the husband have alien and die this  alienation have not bar neither the wife nor the issue in tail because the  husband alone have not power to make strange forasmuch as he have a undivided  estate joint with his wife and therewith agree h c formedon e and by the stat  of W de gift conditional it be enact that a fine levy by tenant in tail Self  jure sit nullus as to the case a Elizabeth Reg of treason whereof the husband  be d attaint it must be know that such bar and forfeiture be make by the stat  e of h S c by which it be enact that every offender convict of high treason c  shall lose and forfeit to the king his heir and successor all such land c  whereof any such offender shall have any estate of inheritance but in the same  Act there be a save to every person other than the offender their heir and  successor all right title interest c so that it appear that the estate of the  wife if she survive her husband be save by this Act and that the bar by the  statute be only as to the issue in tail and not as to the wife and the reason  of the resolution that the heir be disable in such case be because he ought in  his lineal conveyance to make himself heir as well to the father as to the  mother by the opinion of Catlin Wray coke b sander and dyer and as to the say  case f of the fine with proclamation in Reg Elizabeth levy by the husband  alone the bar g be make by the stat of h c h h c and in the stat of h there be  a save for the wife if she bring her action or lawful entry within five year  after she shall be un covert as she do ita this case and by the statute of h  the fine levy with proclamation of land entail to he who levy the fine or any  of his ancestor shall be a sufficient bar against the say person and his heir  claim only by force of any such entail and against other person claim only to  their use or to the use of any manner of heir of their body in which case  there needs not any save for stranger for the purview of the Act be special  and secundum quid videlicet against the heir in tail and other claim to their  use and therefore to separate be that the fine with proclamation levy by the  husband or the attainder of the husband of high treason be a bar to the  estatetail quoad the issue in tail but not quoad the wife but that she survive  shall be seize of a estatetail which estate be save to her by all the say act  and that be prove by the say book of a Elizabeth for there the husband be  joint seize with his wife in special tail levy a fine with proclamation to the  use of himself and his heir which fine be a bar to the issue in tail and  afterward the husband devise the land to the wife for life and die there the  wife enter and waive the estatetail claim c Ant b d die pl hob Cr car   a b  more ander pl raym roll Rep godb Jones more pl Brownl e   b roll Rep roll Rep  Jones   a   a b   Inst Inst and palm hetl   light b b die pl pl   Ent a blow b  godb hob Leon Cr car die pl   a b Inst hob more Brownl Dall in kelw pl Dall in  ash pl Dall pl Anders pl godb n Benl pl Benl in ash pl Benl in kelw pl roll  Rep more pl pl Cr car Jones Leon   b roll Rep light Rep g   b b a b a b a a b  a   b   Savil Anders Anders   light a a a h   a more Anders Savil Bulst   ut a  a Goldsb   a hob   a b   a Leon Leon Leon a above in f coke report a er p for  life by force of the devise which prove that if she have not waive the  estatetail that she shall have have it and not a estate for life as have be  suppose by the other side and in the indenture of confirmation which be make  ill a Reg Elizabeth t be recite that the say Elizabeth have a estatetail by  which it appear that the law be so take at that time and as to that which be  object that the say Elizabeth can not have a estatetail because as to the  issue in tail the estatetail be bar also it be ask to what end shall she have  a estatetail when it can descend it be answer and resolve that one may have  ail estatetail and yet all the issue in tail shall be bar to inherit as in the  case of sir George b brown in the three part of my report f b a b sir Richard  bridge seize of certain land in fee do thereof feoff Winscombe and other upon  condition that they shall give it back to he and his wife and to the heir of  their two body beget the remainder to the right heir of sir Richard which be  do accord they have issue Anthony bridge sir Richard die Anthony bridge in the  life of his mother levy a fine with proclamation to sir g brown in fee the  wife live the say Anthony make a lease for life which be not warrant by the  stat of h c and there it be resolve that the say fine levy by the say coke a  Anthony shall bar the estatetail yet there it be clear admit that the wife  remain tenant in tail for there the question be if the say discontinuance for  life without warranty be within the stat of c h but if the estate of the wife  have be change to a estate for life then without question the say lease for  three life have be a forfeiture by the commonlaw and all the argument upon the  stat of h have be in vain and to no purpose and in such case the wife have ail  estate tail restrain from alienation by the stat of h and not descendible to  her issue so in a archer case Elizabeth Reg in the first part of my report f  if the son of the tenant in tail in the life of the father levy a fine with  proclamation this after the death of the father b shall bar the estatetail and  yet without question the father remain tenant in tail although the estatetail  do not descend so if land be give to a c alien and the heir of his body he  have a estatetail and yet such estate after his death be not descendible to  his issue a and if a seize make a gift in tail the donee make a feoff to a and  afterward levy a fine with proclamation to b who have nothing this fine shall  bar the issue in tail because the issue in tail be privy shall not plead quod  part Finis nothing to have but shall not bar the disseizee by nonclaim because  the fine as to he be void so as in such case quoad the heir in tail the fine  shall bind but not quoad the disseizee who be a stranger acquire ration in the  case at bar this d fine levy by the husband as to the issue in tail shall be a  b roll Cr Elizabeth hob and more Cl car strange c I h c   b b   b   a   a  winch Leon Leon Leon Cr Elizabeth godb more Anders roll Cr James Cl car Jones    light b b hob Brid a hob   a b Cr car Jones roll Rep winch b   a godb Cr car    a Jones Leon Leon Leon Goldsb hob Cr Elizabeth hut p wms e roll Rep a a  recovery suffer by a alien tenant in tail will bar any remainder expectant on  his estate tail anon Leon S C Goldsb Vid vin ab alien a d to a b dyer pl Inst  hob more Brownl Leon Dall in kelw pl Dall in ash pl Dall pl Anders pl godb n  Benl pl Benl in ash pi Benl in kelw pl roll Rep more pl pl Jones Cr car   b  roll Rep winch light Rep coke report b er p bar but not as to the wife who be  a stranger to it husband and wife be tenant in special tail the reversion to  the donor they have issue the husband levy a fine with proclamation to a  stranger and die the wife enter the wife have divest the whole estate out of  the conusee and revested the estatetail in her the immediate reversion to the  donor and leave nothing but a possibility in the conusee ergo the estate of  the wife be not change into a estate for life for then if error be in the fine  the issue in tail shall have a writ of error upon the stat of e r in the life  of the wife and so the issue in tail will have a estate in the land in the  life of the donee which will be absurd for he have not any estate by purchase  and live the donee he can have nothing by descent as to the case of h b where  after f divorce the estate of the donee be change to a estate for their life  that be not like the case at bar for diverse reason there the estatetail be  dissolve ab beginning and the issue make bastard but in the case at bar the  estatetail be bar b and not dissolve or determine but have continuance as long  as the wife life or the heir in tail remain as to the d point it be answer and  resolve that the confirmation nothing service c and it be admit that if coke b  the reversion or remainder in fee have be in a stranger and not in John  Beaumont then let we see when Elizabeth enter and be seize in tail what estate  be leave in the conusee and it be resolve that no part of the estatetail be  leave in he for the wife be seize of the whole estatetail and no part of the  reversion remain in the conusee for that be revested in he to who the  reversion or remainder do appertain and from thence it follow that nothing  remain in the conusee in such case but only a a possibility to have the land  after the death of the wife who have the whole estatetail so long as the issue  in tail remain if any be alive at the time of the death of the wife and  without question such possibility shall not pass by the say confirmation then  when John Beaumont have the remainder in fee the confirmation make by the heir  of the conusee can pass nothing in respect of the possibility which be gain by  the fine during the continuance of the estatetail but it ought to be extract  from the remainder in fee and that it can not be in this case for diverse  reason the old estatetail as to the issue be bar and can descend but the wife  be seize of the entire old estate and no new estate be create by the  confirmation but only the old estate confirm ergo it can descend a  confirmation can add a descendible quality to he who be disable to take by  descent as if lord and tenant be of a carve of land and the tenant have issue  and be attaint of felony and the king pardon he and afterward the lord confirm  the estate of the tenant and the tenant die the lord shall have the land  against his own confirmation for the confirmation can add to the estate of the  tenant a quality descendible to he who be disable to take the land by descent  so in the case at bar the confirmation of the earl to Elizabeth can add a  quality descendible to the issue in tail who be disable by the fine to take by  descent if this confirmation in this case shall add to the estate of the wife  a descendible quality that in effect as to this point will hob e r c   a Inst  dyer pl pl Bridgm Cr Elizabeth f n b e Owen Bulstr   b palm f before a Inst Br  tail Br estate Br deraignment divorce   Litt a b there be a difference in this  respect between a fine and a recovery for have the husband suffer a recovery  instead of levy a fine it will not have bar the estate tail so as to prejudice  either the wife or the issue in tail Owen Morgan case cite in Winchester case    a h Vid erington v Brinton Bulstr c in baker v Willis cro car it be state  that croak I and Jones I be of opinion that the confirmation be good and  create a good estate in the wife descendible to her heir Berkeley I e contra  that the confirmation be inoperative Brampton CJ give no opinion Vid Dancombe  v Wingfield hob a hob Cr car coke report a er p repeal two act of parliament  videlicet the Act of h and h by which as appear before the estatetail be bar  as to the b issue and the issue disable to claim the land by force of the say  estatetail send bargain private citizen law public derogate non to be able and  these statute be jura public officer for they be two of the principal pillar  of the law in the say case of sir George brown after that Anthony have levy a  fine to he in the life of his mother suppose sir George have confirm the  estate of the mother yet after the death of the mother coke a the land shall  not descend to Anthony for the confirmation do not increase the estate of the  wife but she have her old estate and as it have be say the say earl by his  confirmation can add a descendible quality the law be if tenant in c dower  grant over her estate yet for waste do the action shall be bring against  tenant in dower and damage shall be recover against her and it be a  descendible quality to the heir of he in reversion in that case to oust and  take away that charge of the tenant in dower he in the reversion by his deed  confirm her estate to have and to hold to her for term of her life and die and  afterward she grant over her estate and for waste do by the assignee the heir  bring a action of waste against the tenant in dower who plead this  confirmation to her to have and to hold the land for term of her life in this  case notwithstanding this confirmation the action shall be maintainable  against her for the confirmation do not enlarge her estate and therefore it  can take away this descendible quality to the heir to have a action of waste  against her after her assignment make of her estate and so be the book adjudge  in e a b a principal case acquire ration in the case at bar forasmuch as the  confirmation cloth not enlarge the estate of Elizabeth it can add a  descendible quality a Qulibet confirmation or be to achieve to come into being  or diminue to achieve as in Mayowes case in the first part of my report f if  feoff upon condition make a feoff over and the feoff confirm his estate to he  and to his heir this be confirmation to achieve for it do not make  transmutation of the estate but it corroborate and perfect the estate and make  it simple and absolute where it be before conditional and therewith agree h b  cite before b so if the disseizee confirm the estate of the seize or his feoff  it perfect and corroborate his estate for where it be defeasible before it  make the estate indefeasible confirmation to come into being S C when it  enlarge the estate of he to who the confirmation be make as to a estate at  will to increase it for year c to a estate for year to increase it for life to  a estate for life to increase it to a estate in tail c or to a estate in tail  to increase it in fee but in the case at bar predict confirmation non to be to  come into being for it do not enlarge the estate of the wife for she have as  high a estate in point of estate by the first gift as she have by the  confirmation diminuens as where the lord confirm the estate of his tenant who  hold by knight service to hold in socage or to bold by less rend or for tenant  in c ancient demesne to hold at the commonlaw for thereby the custom of the  manor be diminish but upon a confirmation to the tenant the lord can reserve  new service as a hawk for rend or rend for a hawk coke b such de like and the  confirmation in the case at bar be neither to achieve to come into being nec  diminue for the say Elizabeth have as perfect and large a estate before the  confirmation as she have after b   a b dyer pl Inst hob before a more pl pl  Brownl more Dall in kelw pl Dall in ash pl Dall pl and pl godb n Benl pl Benl  in ash pl Benl in kelw b roll Rep Jones Cr car   b Leon m roll Rep light Rep c    light a a a roll   b e a b f n b e f Cr Elizabeth Fitzherbert be Inst h a Br  be king a Cr car e b Fitzherbert be a   light b b Ant a c Ant a roll  Fitzherbert ancient demesne Br ancient demesne e a b C coke report a er p and  as to that which be object that if the wife shall have a estatetail that she  have power to levy a fine or suffer a recovery c to that it be answer that if  the wife have not such power the reason be that she can bar that which be  utter bar before by the priority of her husband act but this point be not then  in question d d but if husband and wife be tenant in special tail with  remainder over and the husband levy a fine to the use of a and his heir and  afterward die leave issue and the wife enter she may by recovery bar the  remainder and yet after her death a shall enter and hold during the case sec  hob that be where the estate be not within h note in sergeant hill copy Vid  press con Vol I p abstract Vol I pp coke report er p coke report a er p coke  report volume the ten part of the report of sir edward coke Knt Lord chief  justice of England of the plea assign to be hold before the king himself and  of the privycouncil of state of diverse resolution and judgement give upon  solemn argument and with great deliberation and conference of the reverend  judge and sage of the law of case in law which be never resolve or adjudge  before and the reason and cause of the say resolution and judgement publish in  the eleven year of the most he h and most illustrious james king of England  France and Ireland and of Scotland the XLVII the fountain of all piety and  justice and the life of the law with note and reference by John Farquhar  Fraser Esq of Lincoln inn BarristeratLaw