$ 731. 1 Inst. 326 a 2 Inst. 681. without her concurrence, it operated as a discontinuance; by which means the wife was barred of her entry, after the death of her husband, and was obliged to bring her writ of cui in vita: and therefore, Littleton says, the Judges would not permit a man to levy a fine alone of his wife's estate. 34. This produced a clause in the stat. 32 Hen. VIII. c. 28. § 6. by which it is enacted, "That no fine, feoffment, or other act or acts thereafter to be made, suffered, or done by the husband only, of any maners, &c. being the inheritance or freehold of his wife, during the coverture between them, shall in any wise be or make any discontinuance thereof, or be prejudicial or hurtful to the said wife, or to her heirs, or to such as shall have right, title, or interest to the same, by the death of such wife or wives: but the same wife and her heirs, and such other to whom such right shall appertain, after her decease, shall and may then lawfully enter into all such manors, &c.; any such fine, feoffment, or other act to the contrary notwithstanding; fines levied by the husband and wife, whereunto the said wife is party and privy, only except." 36. This act having been made to suppress a wrong, and to give the injured party a more speedy remedy than what the common law afforded, it has been construed liberally. So that where lands were given to a husband and wife, and the heirs of their two bodies, and the husband alone levied a fine thereof, and died; the entry of the wife was adjudged to be lawful; although the words of the act are, "being the inheritance or freehold of the wife;" whereas in this case the lands were as well the inhe ritance and freehold of the husband as of the wife. 37. Where husband and wife are joint purchasers Dyer, 162. in tail, remainder to the wife in fee, and the hus- pl. 48. band alone levies a fine, and dies, this is an alienation within the statute. 38. Lord Coke says, if a husband cause a præcipe 1 Inst. 326 a. quod reddat upon a feint title to be brought against him and his wife, and suffers a recovery without any voucher, and execution is had against him and his wife, yet this is helped by the statute; for this is the act of the husband, and the words of the statute are, "made, suffered, or done." 39. Although the King be not named in this act, 2 Inst. 681. yet he is bound by it as well as a subject. So that if a husband alone levies a to the King, still the wife death of her husband. fine of his wife's land may enter after the 40. If the wife dies before entry, her issue may 1 Inst. 326 a. enter; and if she has no issue, then the person in remainder or reversion may enter, by the very words of the statute. Dyer, 32 a. Wiseman's 41. When recoveries were established as common Estates Tail assurances, the Judges held that every kind of estate the Crown granted by tail, whether created by a subject or by the Crown, for Services. was barrable by a common recovery; as also all such remainders over, and reversions, as were vested in Case, 2 Rep. 15. any private persons. And even where the ultimate reversion was vested in the Crown, it was fully established that a common recovery would bar the issue in tail, and all intermediate remainders between the estate tail and the reversion vested in the Crown: for otherwise a perpetuity might have been created, by limiting the ultimate reversion to the Crown. 42. By the stat. 34 & 35 Hen. VIII. c. 20. reciting that where divers of the King's progenitors, and especially the King himself, had given and granted, or otherwise provided to his and their subjects, manors, &c. to them and to the heirs male of their bodies, or to the heirs of their bodies; minding at the time of such gifts not only to prefer and advance presently the donees, but also their heirs in blood of their bodies, according to the limitations of the said gifts, to the intent that recompence for the service of such donees should not only be a benefit for their own persons, but a continual profit and commodity to and for their heirs coming of their bodies, whereby such heirs should have in special memory and daily remembrance the profit that they had and took by the service of their ancestors, done to the kings of the realm, and thereby be the better encouraged to do like service to their sovereign lord. And forasmuch as sundry such donees in tail and their heirs had suffered, and daily suffered, by their consents, untrue and feigned recoveries to be had against them with common voucher or otherwise of manors, &c. so given, granted, or provided in tail, by the King or his progenitors as aforesaid, to the intent by fraud, covin, and untrue means, not only to bind and defeat their heirs, inheritable by the limitation of such gifts, whereby questions and diversities of opinions had risen, whether such feigned and untrue recoveries against such tenants in tail, by their own consent, of lands, &c. whereof the reversion or remainder was in the King, at the time of such recoveries had, should, after the death of the tenant in tail, bind the heirs in tail or not. 43. It is enacted by the second section of this statute, "That no such feigned recovery thereafter to be had by assent of parties against any such tenant or tenants in tail of any lands, &c. whereof the reversion or remainder, at the time of such recovery had, shall be in the King, shall bind or con- And it is further enacted by the third section of this statute, "That the heirs of every such tenant in tail, against whom any such feigned recovery shall be had, shall take no advantage for any recompence in value against the voucher, nor his heirs." 44. Lord Coke has observed, that in the construc- 1 Inst. 372 b. tion of this statute, the Judges have laid down the ten following rules: "1st. The estate tail must be created by a king, and not by any subject, albeit the king be his heir to the reversion; for the preamble speaks of gifts made to subjects, and none can have subjects but the King; and also in the preamble it is said, (for service done to the kings of the realm), and the body of the act referreth to the preamble, and therefore if the Duke of Lancaster had made a gift in tail, and the reversion descended to the King, yet was not that estate tail restrained by that statute, and so of the like. 2dly. If the King grant over the reversion, then a recovery suffered will bar the estate tail, because the King had no reversion at the time of the recovery. 3dly. If the King make a gift in tail, the remainder in tail, or grant the reversion in tail, keeping the reversion in the Crown, a recovery against tenant in tail in possession shall neither bar the estate tail in posses sion by the express purview of the statute, nor, by consequence, the estate in remainder or reversion, for that the reversion or remainder cannot be barred, but where the estate tail in possession is barred. 4thly. If a subject make a gift in tail, the remainder to the King in fee, albeit the words of the statute be (whereof the reversion or remainder of the same, &c.) yet seeing the estate in tail was not created by a king, as hath been said, the estate tail may be barred by a common recovery. 5thly. If Prince Henry, son of Henry VII., had made a gift in tail, the remainder to Henry VII. in fee, which remainder, by the death of Henry VII., had descended to Henry VIII., so as he had the remainder by descent, yet might tenant in tail, for the cause aforesaid, bar the estate tail by a common recovery. 6thly. The word (remainder) in the statute is no vain word, for the words of the preamble be, the King hath given or granted, or otherwise provided, to his servants and subjects. The word (reversion) in the body of the act, hath reference to these words (given or granted) and (remainder) hath reference to these words (otherwise provided), as if the King, in consideration of money, or of assurance of land, or for other consideration by way of provision, procure a subject, by deed indented and enrolled, to make a gift in tail to one of his servants and subjects, for recompence of service or other consideration, the remainder to the king in fee, and all this appear of record; this is a good provision within the statute, and the tenant in tail cannot by a common recovery bar the estate tail so it is if the remainder be limited to the king in tail; but if the remainder be limited to the king for years, or for life, that is no such remainder as it is intended by the statute, because it is of no re |