case hunt vers bourn in b r vide above p the case be now argue seriatim by the  court and gold I be of opinion that the judgement shall be affirm and as to  the objection that by the verdict it be not find that there be a writ of right  he be of opinion that it be not needful for in all special verdict all  necessary circumstance shall be intend Lanc   b as to the principal case he be  of opinion that by the first fine there be a discontinuance for the three life  for notwithstanding the statute Edward de modus to lift up fine a fine may be  well levy by ancient demesne for this statute do not extend to it hob Inst  Inst infra p vin Abr title fine a pl sect a dyer true it be that it can be a  bar to the issue in tail upon a estatetail make by the StatuteSt Westminster  Edward c b de gift conditional for a fine be no bar to such a estate but by  the statute of saint Henry c c h and saint Henry c d h but it be object that a  fine be levy upon a writ of covenant which be a personal action and can be  bring in ancient demesne but I be of opinion that a writ of covenant for a  fine be a real action and here the fine be levy accord to the custom upon a  writ of right close Fitzherbert nat short catalog but it be object that a  court of ancient demesne be not a court of record yet a common recovery there  bind the estate but I be of opinion that this discontinuance determine with  the three life if tenant in tail make a lease for the life comens of the  lessee this be a discontinuance of the estatetail but if the lessee die the  discontinuance determine   lit co Litt a a and I be of opinion that the second  fine do not make a discontinuance     Litt a b I also be of opinion that the  right of entry be not lose by the twenty year the statute ofSt James c c  limitation do not bar the right but only the remedy if a lessee for life levy  a fine the lessor shall have five year after his death for the right of the  lessor be not bar by the nonclaim of the lessee or by that of himself during  the life of the lessee powys I be of opinion that the verdict be good for it  be find that by the custom a fine may be levy upon a writ of right close and  that a fine be levy there accord to the custom he think also that a fine may  be levy in the court of ancient demesne especial it be find by the verdict  that it be levy accord to the custom beyond time of memory hob and die there  it be also say that a fine in ancient demesne bar a estate tail but Inst the  part to which our author intend to refer be I apprehend in the that institute  p where we find the follow observation in point they that be tenant in ancient  demesne may levy a fine in ancient demesne which by the custom it be say to be  a bar of the estatetail but certain that will not hold take notice of this  case and say that a fine there do not bar the tail but admit that a fine may  be levy there he also be of opinion that the fine in ancient demesne make a  discontinuance but it make a discontinuance only for three life and he hold  also that the second fine do not make a discontinuance for that it do not take  effect for the life of the conusor and this be like the casecO litt b d    light and the section   Litt sect e there although it be not the text of  Littleton yet it be good law and find upon good reason and be allow for law  Jon latch in the case of Eustace and scawen the case refer to by our author in  this place be that of saul alias Salvin v clerk Jones cro car latch wm bend f  he be of opinion also that the ejectment be not bar by the statute of  limitation although the conusor die in the year comens then the issue may have  a formedon but now this remedy be bar by the Statute of limitation for there  be a discontinuance for the three life and the entry of the issue be take away  thereby so that he can not have a ejectment until the determination of the  three life when the discontinuance cease which be within twenty year comens er  p Powell I I be full of opinion that a fine in ancient demesne make a  discontinuance for the statute of Edward de modus to lift up fine be only a  declaration of the commonlaw and do not restrain fine in ancient demesne for a  fine in the common plea levy of land in ancient demesne make it a frank fee  and be reversable by the lord in a writ of disceit and it will be a hard  construction of the statute Edward de modus to lift up fine even if it be  introductive of a new law and much more so as it be only declaratory of the  law to make it restrictive to fine in ancient demesne which can be levy any  where else fine be leviable before the justice in Eyre and before great Charta  c in b r Rastals entry b but the statute of Edward intend only the restraint  of fine in inferior court upon bill or plaint there the case Edward be not law  and no other case deny the power of levy fine in ancient demesne and this case  be find upon the mistake that a writ of covenant for a fine be a personal  action when it be a real action and roll Abr Inst a Inst kelw b then this fine  in ancient demesne be a discontinuance but it be a discontinuance only for the  life for although a fine come Ceo c passes a fee general yet it be not so when  there be a express limitation for life bro title fine then the second fine can  make a discontinuance when the estate be discontinue before holt c j I hold  that a fine in a court of ancient demesne be good notwithstanding it be not a  court of record for this court can bold plead in a writ of right and give a  final judgement there and join the mouse upon the mere right for upon a comens  writ of right close the plaintiff shall make protestation to prosecute it in  the nature of a writ of right dyer then if it bath cognizance of a writ of  right which be a action of the high nature why shall it not levy a fine which  be not of so high a nature it may be object that London and other ancient city  and burgh may bold plea in a writ of right but can levy a fine but the custom  and usage be to be consider in this matter for they bold plead by reason of a  grant or of a prescription which suppose a grant of all plead real personal  and mix but by such a grant before the statute of Edward de modus to lift up  fine the power of levy fine do not pass for it be a particular manner of  action which do not pass by a general grant then the city of London hold plead  in the same manner as the king bench or common plea upon original writ and if  before the statute Edward the city of London can levy a fine yet at the same  time it may be levy in c b but a fine of land in ancient demesne can not even  before that statute be levy in c b then in the court of London c if a plea  there conusable be carry elsewhere and the party admit the jurisdiction it be  good but if land lie in ancient demesne although the party admit the  jurisdiction of c b yet the fine shall be reverse beside if a tenant in  ancient demesne can levy a fine in the court of ancient demesne he will be  under a great disadvantage than other subject be for be can levy a fine in c b  and the power of levy fine be a great advantage because thereby purchaser be  effectual secure and it bath be a constant practice to levy fine there though  in some old book it be make a doubt of as in Edward for a fine must be levy on  a writ of covenant which be a personal action but that be a false foundation  for a writ of covenant for a fine be a real action Fitzherbert nat short  catalog f n b that edit p f above p a and a fine may be levy upon any writ  whatsoever   a kelw that fine may be there levy it be agree Inst Inst above p  b dyer and there the dispute be only whether such fine bar the estatetail  comens and it be to be consider what will be the effect of a fine in ancient  demesne and I be of opinion that it shall have the same effect at commonlaw as  of fine of land that be frankfree will have at commonlaw in c b and therefore  a fine by a tenant in tail shall make a discontinuance in ancient demesne as  well as in c b for a recovery against tenant in tail put the issue to its  formedon in ancient demesne as well as in c b h b h and if a recovery there in  a writ of right or other action bath the same force with a recovery in c b why  shall not a fine there have the same operation with a fine in c b wonder then  the force of a fine levy there for three life be to be consider a fine comens  er p sur conusance de law come Ceo c suppose that the conusor have a precedent  estate by the livery of the conusee and therefore a fine be improper call a  feoff upon record for there be a great diversity between a fine and a feoff if  a man be seize enter to make a feoff and livery this amount to a entry and  passes the estate to the feoff but a fine by one out of possession passes  nothing to the conusee but only extinguish the right of the conusor   a  buckler case but it may be object that the fine be levy before the steward and  atorneys when the suitor be judge of the court but the tenant who be suitor  may make atorneys by the statute of MertonSt h c Inst f n b a h and those  atorneys may sit as judge there then it have be object that a fine sur  conusance de law come Ceo c import a conveyance in fee and this be for three  life be a contradiction yet a fine come Ceo c may be qualify to a less estate  as appear by Edward a I also hold that this discontinuance determine with the  three comens life for the life make the discontinuance then the estate be  discontinue by the first fine can be more discontinue by the second and this  be without question accord to Littleton   Litt a sect b I also hold that the  discontinuance by the first fine continue the second fine can make a  discontinuance although it be a warranty for if tenant in tail reversion in  fee make a lease for life and afterward the reversion be grant with warranty  yet this do not make a discontinuance then as to the statute of limitation it  be to be consider whether the issue in tail be ever bind by the statute of  limitation and I be of opinion that the formedon be not bar but if it be bar  yet when the three life determine a new right accrue to the issue and he may  enter and have his ejectment for it be not of any consequence that upon  supposition that he be bar of his formedon to which he have a right that  therefore he must be bar of his right of entry which at that time he have not  judgement be affirm by the whole court and in this case it be declare by holt  c j as his opinion obiter that if a copyhold be entail by custom a common  recovery in the lord court will bar the issue in tail and those in the  remainder for if the entail of a copyhold be allow a common recovery to dock  it ought also to be allow that the privilege of land in ancient demesne must  in their original have be confer by Act of parliament for they can not  commence by grant or prescription if a tenant in tail grant totum position  suum the estatetail be not in abeyance as Littleton and coke speak for if the  grant be to the grantee and his heir it passes a base fee so if tenant in tail  release all his right to a man and his heir a fee comens determinable upon his  life passes so also if a tenant in tail bargain and sell to a man and his heir  and if the tenant in tail afterward levy a fine to the bargainee this do not  make a discontinuance for the base fee be before vest in the bargainee   a  seymour case if tenant in tail make a lease of three life pursuant to the  statute with warranty to the lessee and his heir this do not make a  discontinuance but the lease be good notwithstanding the warranty and whenever  the warranty make a discontinuance the discontinuance cease by the release or  extinguishment of the warranty this cause be afterward bring into the house of  lord where the affirmance make by the court of kingsbench of the judgement  give by the court of common plea be affirm brown p c comens er p comens de  boundary pasch whether in b r