866 DlSCOltT 
right of poffeffdn, which is fo far good, that even the 
perfon diffeifed lofes by it his right to recover the pof- 
feflion by entry ; and can only recover it by an adlion at 
law. When the right of entry is thus loft, and the party 
can only recover by adlion, the. poffeffion is faid to be 
difcontinued. This is the general import of the word 
difcontinuance ; but in its ufual acceptation it fignifies the 
effect of alienations made by hufbands feifed in right of 
their wives;, by ecclefiaftics feifed in right of their 
church ; or by tenants in tail; thofe being the three in- 
Itances adduced by Littleton of difcontinuance. Thus 
before 11 Hen.VII. c. 20, the alienation of a woman feifed 
of an eftate in dower, or of any eftate of the gift of her 
hufband, or of any of his anceftors, was faid to be a dif¬ 
continuance ; and before 32 Hen.VIII. c.31. 14EHZ. 
c. 8. recoveries buffered by tenants for life, tenants by 
the curtefy, or tenants in tail after pofiibility of iffue ex- 
tinft, .or even by the feoffee of tenant for years, worked 
a difcontinuance. It is to be obferved, that there is a 
material difference between the fituation or title of tire 
alienee of any perfon, whole alienation makes a difconti¬ 
nuance, and the fituation or title of the heir or alienee 
of a diffeifor ; for the heir and alienee of a diffeifor im¬ 
mediately claim under a perfon coming in by a wrongful 
title, and their eftate?, though not defeafible by entry, 
are immediately defeafible by adlion. But the alienee of 
every perfon, vvhofe alienationns faid to be a difcontinu¬ 
ance, or rather whofe alienation caufes a difcontinuance, 
claims by a perfon having a lawful eftate ; and the eftate 
of the alienee is unimpeachable during the life of the 
alienor. It fhould alfo be obferved, that a difcontinu¬ 
ance extends to thofe cafes only, where a perfon is dif- 
poffeffed of an eftate of freehold, and where, though he 
has loft his right of entry, he can ftill recover the pof- 
feffion by adlion. The peculiar import of the word dif¬ 
continuance, where applied to the cafes mentioned by 
Littleton, is thus ftiortly, but forcibly, expreffed by 
Kouard, in his Ancient Laws of the French. “An in¬ 
terruption of the right, which one has on an eftate, by 
the fale which another, charged to preferve that right, 
has made of it.” 1 Injl, 325 a. 
By the common law, the alienation of an hufband who 
was feifed in right of his wife, worked a difcontinuance 
of the wife’s "eftate, till 32 Hen. VIII. c. 28, provided 
that no adl by the hulband alone fhould work a difcon¬ 
tinuance of, or prejudice the inheritance or freehold of 
the wife ; but that after his death, ihe or her heirs may 
enter on the lands in queftion. Formerly alfo, if an alie¬ 
nation was made by a foie corporation, as a biftiop or 
dean, without confent of the chapter, this was a difcon¬ 
tinuance. But this is now quite antiquated by 1 Eliz. 
c. 19. 13 Eliz. c. 10. which declare all fuel) alienations 
abfolutely void ah initio ; and therefore at prefent no dif¬ 
continuance can be thereby occafioned. 3 Comm. 172. 
A difcontinuance taketh away an entry only ; and to 
every difcontinuance it is necelfary there fhould be a de- 
vefting or difplacing of the eftate, and turning the fame 
to a right; for if it be not turned to a right, they that 
have tile eftate cannot be driven to anadtion. Co. Lit. 327. 
And an eftate-tail cannot be difcontinued, but where he 
that makes the difcontinuance was once feifed by force 
of the intail, where the eftate-tail is executed ; unlefs by 
reafon of a warranty. Lit. 63 7. Alfo if tenant in tail le¬ 
vies a fine, &c. this is no difcontinuance, till the fine is 
executed ; becaufe if he dies before execution, the iffue 
may enter. Co. Lit. 33. 
A difcontinuance may be five ways, viz. by feoffment, 
fine, recovery, releafe, and confirmation with warranty. 
A grant without livery, or a grant in fee without war¬ 
ranty, are no difcontinuances : an exchange will not make 
a difcontinuance; as if tenant in tail exchanges land with 
another, that is not any difcontinuance, by reafon no 
livery is requifite thereon. 2 Danb. 57. It is the fame of 
a bargain and fale, &c. And an alteration of fuch things 
as lie in grant, and not in livery, works no difeontinu- 
INUANC E. 
ance ; for'fuch grant does no wrong either to the iffue in 
tail, or him in reverllon or remainder, becaufe nothing 
paffeth but during the life of tenant in tail, which i” 
lawful; and every difcontinuance worketh a wron°\ Co. 
Lit. 332. 
If tenant in tail of a copyhold eftate, furrenders to an¬ 
other in fee, this makes not any difcontinuance, except 
there be a cuftom for it, but the heir in tail may enter ; 
though this hath been a great queftion. 1 95. If 
there be tenant for life, remainder in tail, and remainder 
in tail, &c. and tenant for life, and he in the firft remain¬ 
der in tail levy a fine, this is no difcontinuance of either 
of the remainders. 1 Rep. 76. But if there be tenant in 
tail, 'remainder in tail, ice. and tenant in tail enfeoffs 
him in reverfion in fee ; or where there is tenant for life, 
remainder in tail, reverfion in fee, and tenant for life en¬ 
feoffs the reverfioner; thefe are difcontinuances, becaufe 
there is a mean or immediate eftate. Co. Lit. 335. If 
there be tenant in tail, remainder to his right heirs, and 
he makes feoffment in fee, this is a .difcontinuance; 
though fuch tenant that made the feoffment, hath the 
fee in him. 2 Danv. 572. A man is tenant for life, the 
remainder in tail, remainder in fee; and the tenant for 
life makes a feoffment to him in remainder in fee ; this is 
fuch a difcontinuance of the eftate-tail, as produceth a 
forfeiture. 3 Rep. 59. If a tenant in tail be diffeifed, 
and after releafe with warranty to the diffeifor, it will be 
a difcontinuance : fo if he releafe or confirm to tenant 
for life. 1 Rep. 44. And if, where there is a tenant for 
life, and remainder in tail, the tenant for life levies a fine 
to his f>wn ufe; and after tenant for life and he .in re¬ 
mainder join in a feoffment by letter of attorney, this is 
a difcontinuance of the eftate-tail and the fee. Dyer. 327. 
If tenant in tail makes a feoffment in fee upon condi¬ 
tion, and the condition is broken, the iffue may enter 
notwithftanding this difcontinuance. Lit. 632. Tenant 
in tail grants all his eftate to another, though without 
livery and feifin ; arid if that other perfon make a feoff¬ 
ment in fee, it will not be a difcontinuance to take away 
the entry of him in reverfion or remainder. 10 97. 
A leafe is made for life, remainder in tail ; and he in re¬ 
mainder in tail dilfeifes the tenant for life, and makes a 
feoffment in fee, and dies without iffue, and then tenant 
for life dieth ; this is no difcontinuance to him in rever¬ 
fion. 1 Brown. 36. And if tenant in tail of a rent, com¬ 
mon, advowfon, or the like, grant it in fee, it is not a 
difcontinuance: nor where fuch tenant granteth any 
thing out of land, &c. Finch's Law 193. Where a tenant 
in tail of a manor makes a leafe for life, not warranted 
by 32 Hen.VIII. c. 2S. of part of the demefnes, this is a 
difcontinuance of this parcel ; and it is faid makes it no 
parcel of the manor. 2 Rol. Abr. 58. 
There can be no difcontinuance by tenant in tail of the 
gift of the crown, 34 & 35Hen.VIII. c. 20. Nor by te¬ 
nant in tail of fee-farm rents, to bar the remainder veiled 
by the ftatute; 22 Sc 23 Car. II. c. 24. And fome difcon¬ 
tinuances at common law are now made bars as to the if¬ 
fue in tail ; though they ftill remain difcontinuances in 
fome cafes, to him in remainder, &c. fuch as fines, with 
proclamations by 4Hen.VII. c. 24. 32Hen.VIII. c. 36. 
If the hulband levy a fine with proclamations, and dieth, 
the wife mull enter, or avoid the eftate of the conufee 
within five years, or Ihe is barred for ever, by 4 Hen.VII. 
c. 24. For 32 Ken.VIII. c. 28. helps the difcontinuance, 
but not the bar. Co. Lit. 326. Hulband and wife tenant 
in fpecial tail, the hufband alone levied a fine to his own 
ufe, and afterwards he devifed the land to his wife for 
life, the remainder over, rendering rent, &c. The huf¬ 
band dies, the wife enters and pays the rent, and dies : 
in this cafe it was adjudged that the fine had barred the 
iffue in tail, but not the wife. Dyer 351. The entry of 
the wife in this cafe was a difagreement to the eftate of 
inheritance, and an agreement to the eftate for life ; but 
if the wife had not waved the inheritance, the eftate tail 
as to the'wife had remained. 9 Rep. 133. 
If 
