case BRADSTOCK against henry SCOVELL and other Trinity term car roll a fine  levy by the heir in tail who die without issue in the lifetime of the tenant  in tail shall not bar the entry of his young brother after the death of the  tenant in tail Jones   hob Com dig Bac Abr cruise error of a judgement in the  common plea in a ejectment of a message and land in Wickhampton of a lease by  Thomas baston to the say Henry Scovell where upon not guilty plead and a  special verdict find the case be Thomas baston seize in fee of those tenement  convey they to the use of Thomas baston his son and Edith his wife and the  heir of their body for a jointure for his wife Thomas the son and Edith enter  and be seize in tail have issue Philip their old son and Thomas the lessor  their second son Thomas their father die Edith take to her second husband  Thomas Bulford they by indenture for six pound alien bargain sell and grant to  the say Philip and his heir all their right title and interest which they have  in the say tenement no livery nor enrolment be find then the say Philip baston  by indenture for eighty pound bargain sell and confirm those tenement to one  Henry Bradstock and levy a fine with proclamation to the say Henry Bradstock  to the use of he and his heir and afterward Philip die without issue then  Edith die after the say Thomas baston the second son enter and make this lease  and the defendant ousts he et si super c the sole question be whether this  fine by Philip the old son in the life of his mother tenant in tail and he die  without issue in the life of his mother shall bar Thomas the second son or not  and after argument at the bar and bench in the court of common plea by the  opinion of heath chief justice Hutton and Vernon it be adjudge for the  plaintiff that this fine shall not be a bar to Thomas but Crawley justice to  the contrary and now error be bring be assign in point of law and after  several argument at the bar all the four justice croak car agree that the  judgement shall be affirm for this fine levy by the old son who be never seize  by force of the entail and die without issue before the entail descend upon he  be not a fine within the statute of Henry c nor of Henry c to bar the entail  for although be be inheritable to the tail and if he have survive his fine  have be a bar to his brother yet forasmuch as he die in the life of his  ancestor and never have the estate tail the young brother shall never mention  he in a formedon in the descender a he never be ancestor in tail to his young  brother nor any such ancestor to who the land be entail and therefore it be  not like to archer case b where the father seize the grandfather or be feoff  by the grandfather and levy a fine with a   b Com dig b Lord zouch v aickin    hob cro car croak car er p proclamation and die in the life of the grandfather  and afterward the grandfather die his son shall be bar for he ought to claim  by he and be be one to who ancestor the land be entail and it be compare by  Berkley to the case where the father be attaint of felony in the life of the  grandfather and have issue a son and die afterward the grandfather die the  land shall escheat for the son ought to make his descent by he which can be  but if the old son have be attaint in the life of the father and have die  without issue in the life of his father his second brother shall not have be  bar but if the old son have survive the father and die after without issue his  young brother shall never have inherit and for this point Jones say that when  he be a judge in the common plea it be so adjudge in the case of Mackwilliams  c and so also in this court in the case of croker v Kelsey d and afterward  affirm in a writ of error and although Littleton e say that if the middle  brother make a warranty and die without issue his warranty be lineal to his  young brother for that by possibility the young brother may have inherit so as  be be in a certain way say to be his ancestor yet that be only but a  possibility and by reason of the maxim but it be not to be construe so here in  the case of a fine for it ought to be levy by he who have the estate tail once  in he or to who ancestor the land be entail and by who the conveyance by  descent ought to be make but where he needs not to be mention in the  conveyance by descent there his fine shall never bar and grant case f be cite  where land be devise to one when he come to the age of twentyfive year in tail  and be before the age of twentyfive year levy a fine with proclamation and  after attain the say age and have issue and die this fine shall bar the issue  for although he be not tenant in tail at the time of the fine levy yet have  attain the age of twentyfive year he be the person to who the land be entail  so he be within the word and intent of the statute that this fine shall bar  his issue which claim under that entail wherefore here in the principal case  all the justice agree that the judgement be well give wherefore the I  judgement be affirm