brown case edward bourn and other plaintiff fillip hunt defendant in error and  January a tenant in tail levy a fine to the use of b for the life of b with  warranty and afterward he levy another to the use of himself and his heir with  warranty and then sell the land to c and his heir hold that the first fine  make a discontinuance but only during the life of b for it remain no long a  discontinuance when the wrongful estate which cause it be go and that the  second fine do not enlarge the discontinuance because the estate raise by the  fine return back to the conusor and by consequence the warranty annex to it be  extinguish judgement of c p affirm in king b affirm the point determine in  this case be thus state in the margin of Mr rise edition of Comynss report vol  I p tenant in tail of land in ancient demesne levy a fine in the court of  ancient demesne for three life with warranty levy a second fine with warranty  to the use of himself and his heir and then bargain and sell to one and his  heir the follow point be determine saint that fine may be levy in court of  ancient demesne dly that such fine be no bar to the issue in tail but that  they work a discontinuance dly that the discontinuance determine with the  three life and that the second fine make no discontinuance thly that the issue  in tail have year to make their entry after the expiration of the lease for  life all these point appear to be establish by the affirmance of the judgement  in the house of lord the tenure of ancient demesne be a species of privilege  villeinage the tenant thereof can not sue or be sue for their land in the king  court of commonlaw but have the privilege of have justice administer to they  in the court of the manor by petit writ of law close direct to the bailiff of  the king manor or to the lord of the manor whereof the land be hold in  consequence of this principle no fine can be levy by a tenant in ancient  demesne in the court of common plea but as such tenant be allow to commence  action in the court of the manor they be also permit to compound their suit by  which mean fine have at all time be levy of land hold in ancient demesne upon  little writ of right close in the court of the manor the reason that these  fine work a discontinuance be because the freehold be recover in the action  every recoveror be suppose to recover a feesimple and the recovery of the  feesimple must work a discontinuance cruise on fine Edward pp the abridge note  in vin relate to ancient demesne in vin to discontinuance in vin c it be state  that a fine levy in ancient demesne have all the effect of a fine levy in c b  except that it be no bar which be only by force of stat h c in the same vol p  c how fine shall enure the effect of this case be state in the word above use  by Mr brown but which do not seem to include the whole of the point determine  in vin be consider only the point of limitation of time as to the entry of the  issue brown er p salk viner vol p can p can vol p can vol p can p can p can p  can p can p can p can p can vol p can salk holt Lutw Com Thomas Andrews be  seize in fee of land hold of the manor of Wormlow in the county of Hereford  which be ancient demesne of the crown do on the that of February James convey  the same to trustee and their heir to the brown use of himself and Eleanor his  wife for their life remainder to the use of mary the daughter of the say  Thomas Andrews and the heir of her body by John Gwyllym beget and to be beget  remainder to the use of the heir of the body of the say mary remainder to the  heir of the body of Elizabeth Tomkins another daughter of the say Thomas  Andrews with other remainder over remainder to the right heir of Thomas  Andrews soon after make this settlement a marriage take effect between the say  John Gwyllym and mary Andrews and there be issue of this marriage Thomas  Gwyllym the old son after the death of Thomas Andrews and Eleanor his wife and  of John Gwyllym and mary his wife this Thomas Gwyllym enter and be seize of  the premise in fee tail and on the that of may he and Mabel his wife levy a  fine in the court of ancient demesne hold for the say manor of Wormlow and  thereby grant the land in question to William nurse and Sarah his wife and  John nurse their son for the term of their life and the life of the long liver  of they under the yearly rend of pound but this rend be not the ancient rend  nor have the land be usual demise so that the lease be not warrant by the  statute Henry the lessee by virtue of this fine enter and enjoy and Thomas  Gwyllym be seize of the reversion of the premise he and his wife on the d of  June car levy a fine sur conuzans de law etcetera of these land in the say  court of ancient demesne to the use of himself and his heir and by a deed of  bargain and sale enrol date the saint of November follow he convey the same  land to Thomas pain and his heir and by another deed date the that of November  Thomas Gwyllym release all his right title and interest in the premise unto  the say Thomas pain and his heir on the d of June Thomas Gwyllym die leave  issue Thomas his old son and heir who on his death leave issue Richard Gwyllym  the grantee of the reversion and his descendant respective receive the reserve  rend of pound until the that of September when the last of the three life drop  whereupon the say Richard Gwyllym enter and make a lease of the land to the  defendant Philip hunt who soon afterward bring his ejectment against the  present plaintiff who claim under John the son of Thomas pain the grantee and  after a special verdict find the above fact have be several time solemnly  argue in the court of common plea judgement be in Trinity term unanimous give  for the lessor of the plaintiff and this judgement be in Trinity term affirm  by the court of king bench on a writ of error but to reverse this judgement  and the affirmance of it a writ of error be bring in parliament and on behalf  of the brown plaintiff in error it be say t powys r Eyre that there be three  question in this case saint whether the first fine levy by the tenant in tail  in ancient demesne work a discontinuance for if not then the plaintiff title  of entry commence above year before be bar by the statute of limitation d  whether the discontinuance if any determine with the estate for three life  grant by that fine or still continue to bar the entry of the issue in tail  either by mean of that fine or the second fine with warranty or any other  conveyance in the cause d whether as the plaintiff have lapse the year give he  by the statute to bring his formedon and so be bar of his right of action he  be not also for the same reason bar of his right of entry as to the first  question it be argue that a court of ancient demesne have no power to take a  fine be disable by the stat Edward which enact that no fine shall be levy  without writ original and this before the justice of the common plea or in  eire and not elsewhere and that this brown er p statute be pen in the negative  will prevail against any custom pretend or even find to support such fine and  be general will destroy the power of that court to take a fine to any effect  whatsoever but if such a court can take fine by virtue of a custom yet that  this particular fine be not levy pursuant to the custom because it do not  appear to be find on a writ of right close which writ be in the nature of a  commission authorize the lord to take the fine if therefore the court have no  jurisdiction to take a fine or if the custom of the manor be not pursue the  fine be consequent void and can never work a discontinuance that the reason  give by Lord coke Inst why any fine work a discontinuance be that it be a  feoff of record but this fine can not be say to be in the nature of such a  feoff because levy in a court which be not a court of record and not be within  the reason ought not to be within the rule of other fine of record which do  discontinue estate and if for these reason there can be no discontinuance the  consequence be that the right of entry of the issue in tail commence immediate  upon the death of the tenant in tail which happen in above year before the  issue enter and therefore this entry be bar by the statute of limitation as to  the second question it be insist that the discontinuance if any do not  determine with the estate for three life but still continue to bar the entry  of the issue in tail by the commonlaw because a fee pass by the first fine to  the conuzee by force of the word conuzans de law which be ever intend of the  fee the word right and fee be synonimous term as appear from Inst b and right  be the proper term of art to carry the fee in the acknowledgement of a fine  and so constant use and if the fee passes by that conveyance or act which  original cause the discontinuance that discontinuance must be for the whole  fee and on this brown account differ from all the case in Littleton sect where  the first grant pass only a estate for life and therefore original make a  discontinuance for that life only but if in this case the first fine alone  will not work a discontinuance in fee yet the second fine and warranty will in  order that the warranty may be preserve and which will be lose and void if the  issue may enter for then the conuzee have no opportunity of make use of it and  for this reason in Littleton sect the warranty be hold to be a discontinuance  where the grant without the warranty will be none and the same be also lie  down in diverse other book in parallel case and as to the three question it be  contend that the entry of the lessor of the plaintiff be bar by the statute of  limitation which enact that no person shall enter into any land but within  year after his right or title shall first descend or accrue in this case the  first right or title that descend be a right of action videlicet to a formedon  which accrue to the issue immediate on the death of the tenant in tail which  happen above year ago and the issue have neglect for above year to sue for the  estate be thereby bar not only of his action but of his entry also for  otherwise a man may enter into land when he have in way by law to recover they  have lose that remedy by his own default which will be absurd and inconvenient  with respect to purchaser and the disturbance of long possessor and in the  case of Saul and clarke Jones it be adjudge where tenant in tail lease for  life and afterward grant the reversion by fine and die without issue and he in  reversion do not bring his formedon in five year as he may that he can not  enter after the death of the lessee for life though then the discontinuance  determine as here because the reversioner have but one right though several  remedy and have pretermit the first be foreclose of the second by the statute  on the other side it be contend t Parker that the only question in this case  be whether the lessor of the plaintiff may lawful enter after the  determination of the estate for three life grant by the first fine for it be  not pretend that a fine levy in a court of ancient demesne will bar a estate  tail at this day that the first fine make a discontinuance of the estate and  take away the entry of the issue in tail during the life of the lessee only  but that the grant of the reversion by the second fine do not make a  discontinuance in fee and consequent when the last life drop in September the  discontinuance be determine and the right of entry revive and therefore  Richard Gwyllym the issue in tail may lawful enter and be not bar by the  statute of limitation his right not accrueing till brown er p after hear  counsel on this writ of error it be order and adjudge that the judgement give  in the court of common plea and the affirmance thereof in the court of queen  bench shall be affirm jour vol p