4^^» -^ jy ^^ 4 -^■'♦^ •• ■•• <<•-».,# ^ { :!i^ rt . vl- A A n UT HE -^ n 7 4 S rn 7 JJ ^=^^ ^ 9 8 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW i' AN ESSAY ON THE NATURE AND OPERATION O F jfines anti H^ecoberics. Br WILLIAM CRUISE, Eso, OF LINCOLN'S -INN, BARRISTER AT LAW. THE THIRD EDITION, Revifed, correacd, and enlarged. JN TWO VOLUMES. VOL, I. -©f finest. LONDON: PRINTED BY A. STRAIfA:^ AND W. ^VOODFALL, tAW PRINTSRS TO THS Kt.NC'SMCJT EXCEtLIKT MAJISTTJ FOR J. BUTT2.RW0RTH, IN FLEET-STREET. V794- '* r 5 V CONTENTS. ^ CHAPTRRI. 1 /~\P the Origin and Antiquity of Fines Page t \^ I Origin of Fines - id. g Fines taken from the Civil Law - - 7 13 Antiquity of Fines - - ir CHAPTER II. Of the manner of levying Fines - - 13 14 Antient Manner of levying Fines - id. ig Modern Manner of levying Fines - 18 21 Original Writ - _ _ id. 29 A Fine cannot be levied until the return of the Writ of Covenant - 22 31 L'lcentla Concordandi - - 23 32 King's Silver - - id.' 42 Concord - - - 33 47 Rules refpe<5ling the Concord - 36 60 Foot or Chircgrapn - 4I 65 All the Proceedings on Fines muft be recorded 43 67 No Averment can be made againft the Chirograph of a Fine - - 46 69 Of Motions to prevent Fines from being completed - - 50 71 Of the Proclamations _ - 52 81 It is Felony for one Perfon to acknowledge a Fine in the name of another - 56 82 At what time a Fine is completed - 57 85 When a Fine begins to operate - 58 CHAPTER III. Of the fcveral forts of Fine - - 62 90 Fines executed and executory - id. 98 Fines Sur Cognizance de Droit come ceo - 6c 106 Fines Sur Cogniz. nee de Droit tantnm - 68 no Fnies Sur Conct^it _ _ 71 J 1 1 Fines Sur Done Grant and Render - id Vol. I. A 2 Jn 748838 CONTENTS. CHAPTER IV. In what Courts Fines may be levied and before whom acknowledged - P^i^ 77 121 Court of Common Pleas - 7^ 125 Court of the County Palatine of Lancafler 80 126 Court of the County Palatine of Chefter id. 127 Court of the County of the City of C;?^g/?<:r 8i 128 Court of the County Palatine oi Durham 85 130 Courts of Great Seflions in //^rt/fJ - 84 152 Courtof the Ifle of ii/y " ' ^1 13? Courts of Ancient Demefne - 86 135 Courts of Cities and Corporate Towns - 88 137 Before whom Fines may be acknowledged 89 138 CommilTinners appointed by Writ of Diaimus Potel'intem - - 90 142 Judges of Aflize - - 94 How the acknowledgment is to be certified - 95 153 Rule- of Court relpecting the taking Fines by DeJ. Pet. - ■ - 100 158 Lori Chief Juftice of the Court of Common Pleas - - 104 159 Juftice5of//^^/ _ , _ id. 444 Entry - - - 333 457 Plea - - - 345 459 Fraud > - _ 346 462 Courts of Equity _ - - 349 INDEX- I N D E X TO THE A E S. A. NONYMOUS, Page ?5, 97^203^ ^^7. 323,338 Argenton v. Weflover 91; Arundel v. Arundel 99 Archci'sCafe 181 Arundel z;. Arundel 324 Addifon V. Dawfou 353 Allen ^'. Sayer 355 B. Ball V. Cock 26 Barber v. Nunn 27 Brome's (Sir John's) Cafe 42 Bedford (Karl of) "y. Fofter 98 Bruyn's (Sir John's) Cafe 139 Bohun's Cafe 148 Bohun"^. Burton 153 Beaumont's Cafe 176 Bradflock i;. Scovell 186 Brind v. Brind 2 7 Bafkctt V. Peirce 2ii Bartholemew V. Bellfield 227 Brcdon's Cale 280 Barton . . Lever and Brown- low 326 Brafier's Cafe -x 3 1 Berrington -y. Parkhui-H P. 339 Bingham -y. Hufley 357 Cotton 1;. Tyrrell 28 Cotton "J. Baylie 40 Carter v. Barnadifton 1 1 5 Couftn s Cafe 125 Craghiilx'. Pattifon 153 Croft ^'. Howell 19! ClifFord V. Afhley zog Corbettt^. S'one 217 Cromwell's Cafe 221 Cotton's Cafe 260 Champernoon^'.Godolphin 319 Clements -y. Langhorne 324 Cockman v. Farrer 325 Colebyz;. Smith 350 D. Done t;. Smethier and Leigh 21 Downs -y. Savage 56 Dean c Tidmarfh 100 Doe V. Williams 115 Dowling'sCafe 149 Down's VlU INDEX TO THE CASES. Down's Cafe Page 149 Dixon -y. Lawfon 156 Driver 1'. Lawrence IQ7 Digge's Cafe 222 Damport v. Wright 2 -5 Deighton V. Grenviile 242 Doe ex Dem. Duroure v. Jones 254 Doe -y. HeDier 2B1 Doe V. Proffer 30^ Davenport v. Tyrrell 307 Doe ex dem. Odiarne v. Whitehead 335 Drapers' Comp. i/'.Yardley 354 E. Ersfield's Cafe 40 Elliott's Cafe 106 Edwards ^'. Rogers 119 Eyton v. Eyton 143 Euflace v. Scawen 267 Edwards v. Slater 293 F. Farmer's Cafe 25, 34 Filh V. Brocket 54 Fleetwood v. Calenda 103 Finch (Sir Moyle's) Cafe 137 Favely z'. Eafton 141 ForfterT'. Pottington 152 Fines (Cafe of ) 180,193 Focus-y. Salifbury 216 Freeman '7 . Barnes 218 Termor's Cafe 239 Ford V. Lord Gray 301 Fairclaim v. Shackleton id. Fazakerly i*. Bakio 326 Fitzhugh's Cafe 332 G. Gregory v. Croucher 29 Goburn v. Wright 98 Griffin V. Ferrers io6 , Griffith (Sarah's) Cafe 124 Gage's Cafe Page 14? Grant's Cafe 182 Godfrey v. Wade 1 8^ Goodrick V. Shotbolt 207 Garrett ^ . Blizard 279 Goodright ex dem. Hare V. Board and Jones 29^ Goodrick v. Brown 357 H. Harnies v. Micclethwaite 26 Huntz;. Bourne 86 Herbert T/. Binion 89 Heathcock "-j. Hanbury 103 Hungate's (Ann) Cafe 125 Hutchinfon's Cafe 125 Heath v. Wilmot i 54 Hunfy, King 180 Fleliot V. Saunders 186 Hanmer -y. Eyton 216 Hulm V. Heylock 220 Herring ■(. . Brown 223 Holbeach v. Sambeach 268 Howlet V. Carpenter 289 Herbert i\ Binion 322 Hart's Cafe 325 Hutchinfon's Cafe 330 Hubert's Cafe 346 Holt I, Lowe 359 I. Ifcham ^'. Morris K. Keckwith's Cafe Kinafton i . Cleric 214 124 275 L. Lloyd V. Vifcount Say and Sele 46 Lombe ■7'. Lombe 126 Lewing's (Hugh) Cafe 128 Lifter v. Lifter 129 Lindlay INDEX TO THE CASES. IX Lindfay ?•• Gray Pa^e 147 London (Mayor of) v. Alf- ford 220 Laund V. Tucker 21^8 Luther v. Kirby 282 Lloyd V. Carew 315 M. Mayo ■". Combes Moreau's Cafe II I 112 Maire {ex parte) Mallett V. iMallett Monk V. Butter Mackwilliam's Cafe Menvill's Cafe Magdalen College Cafe 125 137 140 184 235 z88 N. Naylor r. Baldwin Norfolk's (Duke of) Cafe 206 215 o. Ognell V. Lord Arlirigton 2 1 9 P. Petty's Cafe 58 Parrot's (Herbert) Cafe 125 Poy tit's Cale 125 Perr.broke (Lord) v. Jef- fries (Lord) 146 Pettus T . Godfalve 1 50 Powell V. Peach 153 Purflow's Cafe igi Podgcr's (Margaret) Cafe 212 Penyflon^'. Lyfter 231 Pigott-y. Salifbury zio Price V. Langford 2S4 Piggot V. Harrington 320 i'oliard v. Luttrell 34^; Pincke .. Thornycroft 366 R. _R;igg fl??^/ Bowley's Cafe Requifhe v. Requifhe 5? 12 c Rutland's (Earlof) Cafe P. 1S9 Reafon v. Sacheverell 20}. Rex V. Mead 328 Rufhley V. Mansfield 352 S. Say V. Smith joz Seton . . Sinclair 104 Sherlock's Cafe 125 Stork r. Fox 1^9 Stud <7W Courtney's Cafe 14; Strilley's Cafe 150 Smith V. Stapleton 188 Solly . Whitfield 206 Salifbury ->. Baggot 20S SafFyn's Cafe 214 Stanford's Cafe 236 Salvin v. Clerk 24c Stowell V. Zouch 264. 255 Seymour's Cafe 26^". 334 Symonds v. Cudmore 269 Shelburne (Earl of) -v. Bid- dulph 270 Smith V. Abell 279 Tey's Cafe 74. Townfcnd (Lord)^, Afli 114 Trcgare i;. Gennys 151 'Jliomafin v. Mackworth 22 Tickneri;. Tickner 283 Thom[)fon v. Zouch 329 Trevor v. Trevor 357 V. Vickx'. Edwards ^•77 W. Wright V. Mayor of Wick- 22. 321 5+ 89 125 '3^ ham Wakefield :•. Hodgfon Waring v. Whale Warfcombe i>. Carrel! Waduy 1'. Newton "Waldron INDEX TO T«i CASES. "IValdron v. Rufcarriot P. 142 Walker "y. Okenden 152 Wotton V. Hale 204 "VVillis i;. Shorrall 227 Whaley 07. Tancred 240 Weale v. Lower 276 Watts V, Birkett 33 « Weiby V, Welby 349 Wright V. Booth Page 35.» Woodhoufe 'y. Bray field 351 Weldon v. Dux Ebor. 357 Z. Zouch V. BamfielJ 179 CHAP- Stints. CHAPTER I. Of the Origin and Antiquity of Fines. I . Wl HEN landed property firft be- ^^.^.^ ^^ VV came the fubjedt of alienation, Fimt. it was found neceflary to adopt fome au- thentic nnode of transfer, which might fc- cure the poflcffion, and evince the title of the purchafer. By the ancient common law a charter of feoffment was in general the only writ- ten inftrument, whereby lands were tranf- ferred or conveyed; but although this affurance derived great authenticity from the number of witnefles by whom it was ufually atteiled, and the folemn and pub- lic manner in which livery of feifin was ufually given : yet (till it may be fuppofed that inconveniences would frequently arife, either from the lofs of the charter itfelf, Vol. L B or ffncef. Chap. r. or from the difficulty of proving it after a lapfe of years. Thefc circumftances pro- bably induced men ro look out for fome other fpecles of aflurance which fhould be more folemn, more lafting, and more eafy to be proved than a charter of feoff- ment. 1. Experience muft foon have difcovered that no title could be fo fccure and noto- rious, as that which had been quellioned by an adverfe party, and ratified by the ■ determination of a Court of Jufcict : and the ingenuity of mankind foon found ouc a method, of deriving the fame advantages from a fiflitious procefs.- To efFed this purpofe the following plan' was adopted; a fuit was commenced con- cerning the lands intended to be conveyed, and when the writ was fued out, and the parties appeared in Court, a compofition of the fuit was entered into with the con- fent of the Judges, whereby the lands in queftion were acknowledged to be the right of one of the contending parties. 3. This agreement being reduced into writing, was inrolled among the records 0/ of the Court, where ic was preferved by Chap. T. the public officer 3 by which means it was not fo liable to be loft (^) or defaced as a charter of feoffnnent, and being a record would at all times prove itfclf. It had alfo another advantage, that bring fubfti- tutcd in the place of the fentence, which would hnvc been given in cafe the fuit had not been compounded, it was held to be of the fame nature, and of equal force with the judgment of a Court of Juftice. 4. When this fpecies of agreement was Gianv. lib. 2, compleatcd, a writ ilTued of courfe to the 2c6. a.S:b! fherilf of the county in which the lands lay, in the fame form as if a judgment had been obtained in an adverfary fuit, direfting him to deliver the pofTefTlon to the perfon who thus acquired the lands. 5. The form which was firft adopted in this fpecies of affurance has continued ever fince. To Ihew the tenor thereof, and the (rt) There is a record of a fine in Dugcink\^ Or;gh:cs Jurtdicales, p. 92. d;ited z% Hen. 2. a/wo I 182. which is exprefsly mentioned to have been levied, becaufe the charter of feoffment by which the lands had been conveyed, was loil. B 2 differ- difterence between it and the charters which were then in ufe I fliall tranfcribe it. Glan. lib. 8. ^'^c ^fi finolis coficordia fa5fa in curia c. 2. i)cmmi Regis apud Wefimonajlerium^ in in- gilia hcaii Petri ApJloU^ anno regni Regis Henrici Secundi^ tricefinw tertioy coram Ranulpbo de Glanvilley Jujticiario Domini Regis, et coram H. R. fK and T, ^ aliis jidelibus Domini Regis qui ihi tunc aderant, inter prior em et fratres hojpitalis de Hieru - falemj & W. ^. jilium Normanum ^ Ala- num fiUwn Jmimy quern ifje attornavit in curia Domini Regis ad lucrandum 8? perdendum, de tota terra ilia i^ de pertinentiis de qua terra tota placitum fuit inter cos in curia Domini Regis j Jcilicet quod pr adieus IV. i^ Jlanus concedunt ^ tejlantur donationem quam Norm anus pater ipfius IF, ipfts inde fecit, 13 illam terram totam quietam clamant de Je et h^redihus Juis domus hojpitalis et prefato priori et fratribus in perpetuum, te- nenda de domo hojpitali ^ prcedi^o priore et fratribus in perpeluum et per liberum Jer- 'vitium qiiatuor denariorum per annum pro omni Jervilio, et pro hac concejfione ^ tejii- jicatlone & quieta clamantia prefaius prior et fratres fratres hofpitalis dedcrunt ipfi PVilkelmo i^ Chap. I. JIano centum Jolidos Jlerlingoriim. ^--v^ 6. This fpecies of afilirance was called Finisy .or Finalis Concordia from the words with which it btrgan, and alio from ic*s cffedl which is to put a final end to all fuits and contentions {b). It may be de- fined to be an amicable agreement or compoficion of a fuit, whether real or fiftitious, between the demandant and te- nant, with the confent of the Judges, and inrolled among the records of the Court, where the fuit is commenced j by which lands and tenements are transferred from one perfon to another, or any other fet- tlement is made relating to lands and te- nements (^). 7. To ((5) Et mta qu:ii Jicitur tal'ii concordM finalis^ n quod Jinfm iniponit ne^otio, aJto ut neuter Uti^antium ah ca dc cetera filter it reccd.'re. Gian, lib. %. c. 3. Finis ejl cx- iretnitas unlufcujufque rei^ et idts dicitur Jinalis Concordia fuia imponit Jinem iitilf'.is. Br:icl. 435. (c) Finis pi.m dicitur ritus ille foh'unis transferevdo- rum prcediorurn In curia reps eiviliv.m caufaruin quo nihil fanilius hi\bi.tur i-el augujtius ad aliinationts et hureditatts Jlabdiendas .• — Trafifaftionis igitur coram rege duo eraHt genera, umnr. f.ii-.pUci ejus charta ennntiatian et tejlntutr., , li 3 aimd 6 irriie0. Chap. I. 7. To this mode of transferring eflates '""^"'^^ of freehold at cominon law, the ceremony of livery of fcilin is unneceffaryj net be- caufe the fuppofition and acknowledge- ment thereof in a Court of Record induced an equal notoriety, for in the antient fines no fuch acknowledgement is made: but becaufe lands acquired in this manner were fuppofed to be recovered by fentence of a Ante f. 4. Court of Juftice, and the pofiefTion was delivered by the fheriff, in purfuance of a writ diredled to him for that purpofe, whic!: was equal in point of notoriety to the ceremony of liveiy. 8. A fine was from it's firfl inftitution more highly favoured and protedled by the law than any other kind of conveyance ; for if either of the parties refufed to adhere to it, there was a particular writ by which they were compelled to appear, called aliud tamquam e compofita lite proveniens rei -juduat^. formam exhibet iJeoque finis diHum quaji litis terminus. Sed genus alteram ^qui finis dicitur et finalis concordia) magis placuit quod prater tefiionis magnificentiam^ non folum ad fiahiliendas travfa^iones, fed ad rejcindendas iites maxime 'valet, ideoqiie ab emptoribus terrarum tam- quam facra anchora tulta et admirats. — Spelman's GIofT. voce Finis. •Querela de Fine fa5fo in curia domini regis Chap. I. von obfervato. And if the fine was proved ^^^^ ^.^ to have been duly levied, then the party ^ ^ y^^ g, who refufed to adhere to if, was attached, c. 3, 4, 5. until .he found fuflicicnt fecuricy for his compliance {d). q. The idea of a fine appears to have Fines taken . from the civil been originally taken frooi the tranjatiio /^.y_ of the Civilians, which was an acconimo- dation of a fuit already commenced, or an agreement refpetfling fome doubtful matter, that would otherwife become the fu!iie(fl of a fuit. Tranjatrw eft Juper re Voet. Comp. dubia, aut lite incerta^ ccnventio non gra- •' tuitaj aliqiio dato re lento vel promijfo. 10, Although no modern writer on the Englijh law has taken notice of this cir- cumftance, yet the definition of a fine given by BraJfon, feems to be an undoubt- ed proof of it. {^) In fome cafes, however, the civil authority was infufficienc for this purpofe. Thus, Mr. Ma,h.\ has tranfcribed a record; by which it appears thai Julian de Swndefeld, fined to king John in ?co marks and fix palfreys, per Jtc quod Jinis faJlus per cyrcgrnphum ct per jinem duclli, inter ipf:.m, et tyUbe'mum Jc Cur ton, defeodo umus militis et di/niJi: cum pcrtin : in Ellin^cham cur am jujliciariis tencatiir. B 4 Ccnccrdia Chap. I. Brad. fo. 310. a & b. Concordia in foro Jeculari idem ejl quod^ tranJaSfiOf et efi tranja^io de re diibia^ et lite incerta^ aliquo dato vel frcniijfo vsl retentOy a lite tranja^tio. Vide Glan. Prolog, et lib. 7. c. I. Seldon ad Fletam, Barrington Obferv. on the Statutes, I Reeves 68. From the fimilarity of thefe definitions, it appears clearly that the Englijh lawyer copied from the Roman , nor fliould it appear extraordinary that we are indebted to the civil law for this moft ufeful fpe- cies of afTurance, when we confider how much our firft writers Glanville and Braxton have borrowed from Jujiinians code, al- though fome of the more modern authors appear, either to have been ignorant of the obligations we owe to the Romans in this refpeft, or to have, from a miflaken pride, been extrenhely unwilling to ac- knowledge them (e). 1 1. The EnglifrJ were not the only peo- ple who adopted the tranfaciio of the civil law, for the French feem to have {e) Sir Ed-^ard Coke feerrs not to have been totally ignorant of the origin of fines ; for fpeaking of their etymology, he fays, " And the civilians call this judicial concord Tranjailionvn judiiiakm Je re humo" lili." I Inlt. 262. a. very very early felt the fuperior efficacy of this Clmp. I. kind of contracl over every oLher, and therefore introduced it into their law. On nomme tranfa^ion les o.cles qui out l^i-niCirt ,..,". . / ColL^cDe- ^our objet de terminer cu p^evenir des pro- ciiiou-. feSy auxquels les droits rcJpe^Ufs foii'jioent donner lieu, II ny'a point de conventions plus fvlidis fit d' engagements plus refpe£iakles que ccux garrantis par une tranJaSlion fur prods : les loix les adoptcnt et les protegent, parcequ''- ellcs font importantes a la focicte ; et que leur but naturel ejl, de delivrer les parties du trouhle que produit re'ver.enient dcs p'o- ces^ de Jacliitcr les reconciliations j d'ajfurer le fort et Vet at des citoyens, et de iarir la Jource de toutc dijjcntion, ^elque-fois la tranjaflionfe faifoit au par- lement menje, cornriie en voit au fecond regijre olim fo, 25 vo. DU a efl dit^ Uj'c cfi cor.cor^ dia faEfa inter Tetrum F.pijcopum Altifiodo- r en/em et Procuratorcrn Coniitis AUifiodoren- /,s. 12. No traces of a tranfnaio or fine are to be found in the original cndoms of the duchy QVj^p I duchy of Normandy^ but it ftems to have V — •,' ' been introduced very early into their law; Bafnaee vol. ^or in the Ccutiime reformee de Normandiej 2- p- 34^- which was compiled in the year i 583,nrien. rion is made of a controt de tranfaSfion, as a thing well known and in common ufef/j. Jntlqiihy of 1 3. It has been a favourite topic with Fir.es. Qyj. Javvyers to enlarge very much on the Coke Read i. .. ^^ -- , j.u- Plowd %b%. •'antiquity oi noes ; lome have carrit-d this idea fo far as to infill:, that they were co-eval with the firft rudiments of the law. (y) -Agreements in the nature of fines were for- merly known in Scotland. " In difficult or intricate *• cafes it was an early praftice for Judges to inter- " pod, by pref?ing a tranfatStion between the parties; " of which we have fome inllances in the Court of " Sefiion, not far oack. This praftice brought about " mnny agreements betwixt litigants, which were al- " ways recorded in the Court where the procefs de- *•' pendcd. Tne record was complete evidence of the •'fad; and if either party broke the concord or *' agreement, a decree went againfl him without " other proof. The fingular advantages of a concord " or iranfadion, thus finifhed in face of Court, moved *' individuals to make all their agreements of any *' importance in that form. And indeed, while writ- •' ing continued a rare art, fkilful artifts, except in *' Courts of Juilice, were not eafily found, who could '♦ readily take down a covenant in writing." Lord Xaims^s Lwjj TyaJli) 65, and and formed an original conveyance or Clnp, T. affurance. Orhers have contended, that fine> were well known in this kingdom before the Norman conqiieft {g) ; but if it be admitted that the firft idea of a fine was derived from the civil law, and we truft this fact lias been fuHy proved; it will follow that fines could not pofTibiy have been known in England until fome time after the year 1 190, when a copy of the Panders was found at J ?n alp hi in Italy, in confequence of which difcovery, the ftudy of the Ranan law fpread with un- common rap'ditv over all Europe, net: excepting this iHand, in which Rcger, firnamed Vacnriiis^ who v/as brought over by T'heobaldy a Norman abbot, elected to Sflden ad the See of Canterbury fo early as the year ^^l^^' f . 1 147, read public lectures at Oxford on the Roman law. ( 0-) Ic was not unufaal In the Angl-j Siixn times for perfons to execute their contraif^s in tlic County Court where they were wituefieJ, of which Hk'-.s in \\\% Di/Jerlatio Eti/lolarls, p. 29, 30 publilhed in the Thffaurus Lin^uarum Sefttfiitrionalium, has produced two inflances, but they bear no fort of rclonibiancc to fines. As 12 ifincjsf; C'nr^p. T. As a farther proof of this afTertion it ^"■"""''^^ may be obferved, that Dugdale and Madoxy Pugd. Ong. |.|^g j^Q j^o{^ diligent and learned enquirers J""^d. 92. . . J , , , MadoxDifT. into our antient records and charters, have to the For- acknowledged, that they could not dif- £^jr, cover any traces or fines in this country before the reign of Hen. II. who afcended the throne of England in the year 1155, which was eight years after Vacarius had publickly taught the Roman law at Oxford: and Glanville in whofe time fines were fully eftablifhed, is not fuppofed to have written before the year 1181, that is thirty-four years after the introduflion of the Reman jurifprudence j fo that there can fcarce remain a doubt but that fines were firft adopted in England, during the reign o( Stephen, or his immediate fuccef- for, Henry II. and that we are indebted to Ju/linian's code for this part of our law. iffne^. '3 CHAPTER IL Of the Manner of levying Fines. 14. /\ FINE has in the preceding A,.t!ent man- i\ chapter been defcribed to be ^if^'^^'^'S an annicable agreement or compoiuion or a fuit, whether real or fiditious, between the demandant and tenant, with the con- fent of the Judges, and inrolled among the records of the Court where the fuit was commenced; by which lands and tenements are transferred from one perfon to another, or any other fettlement is made relating to lands and tenements. 15. There is no fmall difficulty in af- certaining the manner in which fines were originally levied, on account of the fcarcity of materials for fuch an enquiry j for ex- cept what is to be found in the diflcrta- tion which Madox has prefixed to his col- iedlion of antient charters, and the few obfervations which Dw^dc.le in his Origincs Juridicales has made on this fubjcct, no- thing has been collcded either by our lawyers or antiquaries. \ i5. Madcx t 1 6. Madox feems to have thought, that a fine was not originally an accommoda- tion of a fuit in the ftriil fenff of :he word, becaufe in fume of the mod ancient fines extant, no original writ appears to have been fued our, nor any procefs ufed for the purpofe of bringing the parties before the Court: but they themfelves having accommodated the matters in difpuce, and drawn up an agreement in writing called a Cbirographumi which figniPied a deed of two parts written on the fame pa- I Inft. 143. p^i" or parchment, they then appeared in FIe"*al 7. ^ Court of Juftice, where they acknow- c. 14. f. 3. leased it as their agreement, and muiuullv 3 ep- 't' • ^^^ j-j^gjj- f^^]^ to ij. and upon payment of a certain fine it was inrolled amoi)g the records of the Court. Or elfe the parties entered into an agreement in Court, where it was im. mediately reduced into the form of a Chircgraphum, and recorded, a copy of which was delivered to each of the )arLies. Year Bock This idea is confirmed by the opinion iafch. of the Tudf^es in the Abbot of Merton\ 21 Ed. 4. ^^ . . 1 r 1 • fo. 4. No. 8. cafe, who faid that a fine was nothing r/jich. 2iEd. j^-iore than a covenant between the par- No°32. ' ties and recorded by the juiiices, and if it were Jfinc0. '5 were before indices of record, the parties Chap. II. being prefent, it was fufRcicn-, for the writ was fued out only to make the par- ties appear, and if they were prefent and would appear gratis, it was unneccfiary to fue out a writ, but they might make a final covenant by record of the jufhices, and a fine was but a covenant of record, from whence it may be contended that fines were at firfl: exadly fimilar to the agreements which in the time of the Anglo- Saxons were entered into at the county courts. But a fine is diftinguiflied fiorn thole agreements by two very material circumftances, Firft, nothing appears to have been paid forpermifiion to enter in:o fuch a contract, and Secondly, it was not inroUed among the records of the Court. It may alfo be obferved that this mode of levying a fine without an original writ agrees exaftly with the tranfa^io of the civil law, which was not always an accom- modation of a fuit adually commenced, but an agreement relating to fome doubt- ful matter, which muft otherwife have be- come the fubjccl of litigation. Olje5fum Vinn'.ns's five materia tranja^ionis Junt res dnVia vel Trani". 'c.4. ////'- n. 1. i6 iFineiEj. Chap. IL UtigiofoSy de qiiihus fcillcei vel nunc Ih fit^ njel in futurwrn ejj'e fcjjity aiit mctuatuVy nam litem mot am ejje nihil neceffe eft. 17. The obfervation of the judges in ihc abbot of Merloni cafe, may alfo be ac- counted for on another principle. An original writ was not abfolutely neceflary in BraSfcn's time to the commencement of a fuit, for if the defendant would appear in court without a writ, the judges might Braa. 413.1. P'oceed in the fuit, tot erunt formula hrevium quot Junt genera a^ionum, quia non •poteft qui s fine hrevi agere^ cum non teneatur alius fine hrevi refpondere nift gratis voluerit^ et ex hoc ei non injuriatWy cumfcienti et volenti non ft injuria^ The law was however foon altered in this refped, for when Fleta wrote, an ori- ginal writ was become abfolutely necefla- ry : — thus in fpeaking of the court of com- Llb. 2- c. 34. m.on pleas, he fays — Hahet etiam curiam fuafn et jufticiarios fuos ref denies qui omnes recordum hahent in his qu^e coram eis fuertint ■placitata^ et qui poteftatem habent de omnibus •placitis et a^ionibus realibus et perfonalibus et mixtis, dum tamcn warrantum per breve regis habuerint cogncjcendi^ nam fine 'war- ranto Stints. 11 ranto jurijdiofionem non habent neque coherti- Chap. II. tnem, 18. It feems however to have been very foon eftabliflied that no fine could be levi- ed, unlefs upon a placitum or fuit acflually connnncnced in the ufual manner, for Glan" ville defcribes a fine to be an accommoda- tion of a fuit adually commenced. Co;/- Glan. 1.8. tingit autem jnultoties loquelas mot as in curia ^* ** domini regis "per amicahilem compofitionem et finalem concordiam terminari^ Jed ex conjenfti et licentia domim regis j vel ejus jujficiariorum undeciinque fuerit 'placitum ^ five de terra free de alia re. It even appears that fo early as the reign o^ Hen. III. there was a particu- lar placitum adapted to the purpofe of levy- ing a fine j thus Madox has tranfcribed a DifTert. f. 17. fine levied in the 27 Hen. III. between Ranulph^ abbot of Ramfey^ and Matthew de Layham. XJnde placitum finis facii fummo- nit um fuit inter eos in eadem curia («). 19. The («) It was formerly a common practice for perfons who had any caufe of difpute, to .ippear before Par- liament, and there to enter into an agreement con- cerning the matter in debate, to which they mutually promifed to adhere. Ahhougli thefe agreements are called coHcoictia^ yet ihey arc clearly dillinguilhable Vol.. I. C from. fS Chap. n. MoJern . Mcr of le fines, i In ft. 5 13 Vin. man- ;io. Ab: 2J2> 19. The modern manner of levying fine* was afcertained by the ftatute de modo /fi- vandifines^ 18 Edw. \,fi. 4. by which it was enacted that no fine fhould thenceforth be levied unlefs upon a fulc adually com- menced in the ufual way y fo that a fine then became an accommodation of a fuic in the moft flrifl and technical {tn{t ; and fince the pafling of that aft, no material al- teration has been made in the manner of levying fines. 5Rep. 3S.b. 20. A fine now confifts of five parts. I. The original writ. 1. The licentia con- cordandi. 3. The concord. 4. Thenotej. and 5. The foot, chirograph or indenture. Original lurif. 21. When the partics have agreed to from fines, for in the feveral agreements of this kind-, which are to be found in the rolls of Parliament, no mention is ever made of a fuit depending between the parties at the time, nor docs any fine appear to have been paid on fuch occafions ; the words of thefe concords are, tanikm ad inj}a?itiam Domini Rrj^is ad ijlud Parliamen'.um jiium qui omnes content iones -vult paci- ficare partes pradi^ij'e in hunc moduni concordfirunt,indc~ licet, i^c. Rot. Pari. i3 I'd. i. No. z. No. 2r. 20 Ed. 1. No. 7.3. to to be conveyed, commences an adion or fuit at law againft the vendor, by fuing out a writ of covenant againfl him, the foun- dation of which is a fuppofed agreement or covenant that the vendor (hall convey the lands to the purchafer; on the breach of which agreement the adion is brought. As no fuit can be commenced in any of the courts of common law without an ori- ginal writ, and as a fine is a friehdly com- pofition of a fuit adlually commenced, ic follows that no fine can be levied without an original writ ; and the ftatute de modo levandi fines exprefsly fays, " that the or- " der of the common law will not fufFer a *' fine to be levied in the king's court " without an original." However if the judges permit a fine to be levied without an original writ,, it is not abfolutely void, ^ i^ft. 513. but only voidable. Co.Read. 10. 22. A fine may be levied on every writ 5 Rep. 39. a. by which lands may be demanded, charged, ^^^ ' ^^|°' or bound; or which in any fort concerns Holt 322. land. Such as a writ of mefne, zvarrantia f J^f P' ^""" ^' ^ > [h) The references made to SheppayiVs Touchjlotiey are to the laft edition of that valuable work, which has been piiblilhed by Mr. HilHard, with a great Hwmb*'- of ufeful notes. C 2 char- so jTlnri^. Chap. II. charta^ de confuetudinihus et Jervittis, ^6^ ^''"^^''**'^ But a fine cannot be levied on an original' in a perfonal adtion. Mad. DifT. f. A fine may be levied of an advowfon in ^^* a vsrit of right of advowfon, of which Mndox has given an inftance of great an» tiquity. Booth 247. ^3' The vi^rit on which fines are now ufually levied, is a writ, of covenant, whicb is in the realty, and lies where a man co- venants to levy a fine to Tome other per- fon of his lands and tenements. The form Rec^. Erev. of the writ is thus \— Praecipe A, quod teneat 165 a. Fitz. £^ conventionem inter €os faBam de manerioy N. B. 146. ./- cj C5 c. et nifii CTf , 24. There muft be fifteen days between the tefte and the return of this writ, and the tefie muft not be on a Sunday, or any day that is not dies juridicus. 2 Inft. s M . 25. In fuing out a writ of covenant there is a fine due to the king called the primer- fine-, for in every real aftion for lands and tenements, of the yearly value of five marks, there is a fine of fix fhillings and eight pf-rce due upon the original in the Hanaper Oince* a6. Where t6. Where the fneriff of the county in Chap. ii. which the lands lie, is a party to the fine, "^ " ' the writ oucrht to be direfled to the core- Donev Sme- ° . , . . tlirerc'L' Leigh. ner: for although the fheriff is in general Cio. Car. the proper officer to execute all writs, yet 4|^^'^^- jo"" where the writ is brought againft hinnfelf, it is the practice, in order to prevent par- tiality, to direfl the writ to the coroner with this claufe, ^iia p-^dicius A. B. eft 'vicecomes c omit at us D. f.at e::ecutio bnvis -prad'iH. -per corcnaicrcmy ita qucd vicecomes ticn/e inirv7nittat, *iy. If an original writ be countermand- Co. Read lo. ed by a retraxit^ a fine cannot afterwards be levied on it. Thus in an affife, the i'l'^- Ab. Tit. plaintiff appeared and made a i'etraxit ; afterwards the judges "recorded an agree- ment between the parties in the nature of a fine : and by the better opinion it was void, £t coram mnjiidic€j becaufe when the agree- ment was made, there was no fuic depend- ing, the writ being diftermined by the retraxit. 28. Formerly, if the king had died after the purchafe of the original wrir, the par-» ties could not proceed to levy a fine on it, becaufe it was abated, But now it is C 3 other- otherwife ; for by the flat, i Jnn c. S./ ^. no original writ, proccfs, or proceedings whatfoever, (hall abate by the death of any king or queen. A fine cannot he levied until the return of the ivrit of co- venant. 29. As the parties are not fiippofed to appear before the return day of the writ of covenant, it follows that no agreement can take place between them until that period : and therefore if any of the parties die before the return day of the writ of covenant, the fine will be void. Wright &M. ^^' A writ of error was brought to re- of Wickham. vcrfe a fine levied by hufband and wife, and Cro. Eliz. , -. , , , . - ^gg. the error afligned was that the writ or co- venant upon which the fine was levied, bore tefie the loth o( Juguji 12 Eliz. and was re- turnable in Michaelmas term of the fame year, which was the 27th O^ober. The fine was acknowledged before commiflion- ers, and the wife died the 17th q{ OStoher, which was before the return of the writ of covenant. The fine was reverfed. The fame point was determined in the cafes of Price v. Davis, Comb, ^y — 71. Clements v. Langbarney 2 Lord Ray m. 872. Watts irlnes. 23 Watts V. Birkett, Barnes 120. IFilf, Rep, ^^ p. 1, 115. 31. The fecond part of a fine is the LUmtia Ccn- Ucentia concordandl, for as foon as the aflion ^''cJ'^ni.sqo. is brought, the defendant knowing himfelf 5 Rci>. 39. a. to be in the wrong, is fuppofed to make overtures of accommodation to the plain- tiff, who accepts them, but having given pledges to profecute his fuit, applies to the court, upon the return of the writ of cove- nant, for leave to make the matter up, which is readily granted on payment of another fine. 32. This fine is called the king's filver, A"%'^//w. and is paid on obtaining the licentia concor- ^ ^"'^- 5^'- dandii becaufe the king by fuch compofi- tion iofes the fines, amerciaments, and other advantages, that would have accrued to him upon the judgment or nonfuit, which in anticnt times formed no inconfi- derable part of the royal revenue. 33. The king's filver, which is fome- //^,.„, times called the pod-fine, with refpecft to the primer fine, due on the original \Nric, is an antient revenue of the crown, and is as much as the primer-fine, and half as C 4 much 24 liim. Chap. II. much more. It is entered on the writ of covenant in the following manner : — 5 Rep. 89. a. Robertus Drury dat Domm£ Reginajep. Lib, -pro licentia ccncordandi cum Thoma Tey arm. et Eleonora Uxore ejus de placito conventionis de maneriis de^ aite iiarnes 214. 37. A fine was flopped at the king's fil- ver office by a caveat entered by order of a judge, upon an affidavit of the death of a married woman who was one of the cog- nizors, and an application was made to the court that the fine might pafs notwithftand- ing fuch caveat. Tt appeared that the married woman died the day after the caption of the fine, and after the tejie but before the return of the writ of covenant. It was infifted that as the king's filver was not paid before the death of the wife, the fine ought not to pafs. filler. -27 pafs. On the other fide, it was contended, Chap. II. that fines were common aflurances ; that ^ ^ the acknowledo-inent made the fine com- plete; that the king's filver was the fine fro licentici alienaiidiy'^\\\c\i was the pre -fine paid at the alienation office, and for which a receipt was indorfed on the writ of cove- nant, and that it was no part of the poll:- fine ■which was never collected until the fine was completed. The court, after confi- deration, were of that opinion, and ordered the fine to pafs. 38. The dotftjine laid down in this c^fi", that the king's filver is the pre-fine, or fine f>siic\ pro licet^fia alienandiy is certainly wrong, and has been contradifled by the following determination. A fine was acknowledged before com- ^^ G^o. i. mifTioners on the ijthofA/rtjy 1754. The jVunn. writ of covenant was tefted the firfl day of liames 2i3i Eajler term in live weeks (19'h Mny^,. It was compounded, and the pre-fine paid between the 17th and 20th of May, and after pafTing the return, warrant of attorney, and cufios brevium office, was brout^ht to the king's filver office on the » ith cA' Juatr^ and the clerk then entered the king's filver or or poll fine in his book, and en the writ of covenant. Mary Nunn the cognizor died on the 27th o^ May. A caveat to prevent thQ compleating of this fine was brought to the king's filver office the Mth of Juney be- fore the record was made up in form, on behalf o( John Numiy eldcft ion and heir of the cognizor. A rule to fhew caufe why that caveat fliould not be withdrawn, was made abiblute, and the court utterly ex- ploded the notion which prevailed, un- doubtedly by miftake, in the cafe of Harriets V. Mickletwaite^ that the king's fiiver was the pre-fine, or fine for licence to alienate, Vv'hereas the king's filver is the poft-fine, or fine given fro llcentia concordandi. The return of the writ of covenant was agreed to have been in the life-time of Mary Nunriy the cognizor; and from that time the crov/n had a right to the poft-fine, which was entered at the king's filver office be- fore any caveat was entered againft it. The making up the record in form is a minifterial a6t, not necefi'ary to be done previous to the caveat, as the entry of the clerk of the king's filver was fufficient. 't> Chiton V. ^p. When a year and a day has elapfed Ba.u.'ii 21 r. ^?om the date of the caption, or acknow- ledgment ledgment of a fine, without entering the Chap. II. king's filvcr, an affidavit muft be made that all thofe who depart with any intereft by the fine are dill living, otherwife the king's filver will not be received. And now that the king's filver is paid at the Alienation Office, if a year elapfes before the fine is carried to the king's filver office, an affidavit mult Croucher. be made that the parties were alive when Barnes 215. the king's filver was paid. 40. By a rule of the Court of Common Pleas, made in Eajicr term 9 Ann, it is or- dered, " That no fine whatfoevcr takea " and acknowledged before the chief juf- " tice, or any judge of affife, or ferjeant at " law, if the date of the caption of fuch fine ** ffiall appear to have been razed, ffiall for ** the future pafs the queen's filver office, ** and the queen's filver of fuch fine be " recorded, by the faid clerk of the queen's *' filver, before there be an order under the " hand of the faid chief jufdce, or fome " other juftice of this court, for his paffing " and entering fuch fine firft had and ob- " tained." 41. Formerly the poft-finc or king's filver was'paid at the king's filver office, but but by the feature r^2 Geo. i. c. 14. it is ena(fted,y! r. " That on every v/rit of co- *' venant which fhall be fucd out for pafllng *' of fines in the Common Pleas at fVeJl- ** minjiery the officer whofe duty it is to fet " and indorfe the pre-fine payable thereon, ** (hall, at the fame time, fet the ufual poft- *' fine, and indorfe the fame on the back, of " the faid writ, together with his name or *' mark of office, in like manner as the ** fame are now indorfed at the king's fil- " ver office; which poft-fine fhall be forth- " with paid to the receiver of the pre-fines " at the Alienation Office, with 455^' maining in the Court of Common Pleas, had been taken away, and other fines and notes of fines counterfeited and put in their places, whereby many perfons were difin- herlted ; in confequence of which, a fiia'.ute was immediately pafTed, 5 Hen. 4. c. 14. enaifling, that all the- proceedings on fines, both previous to, and at the acknowledg- ment ment thereof, fliould be inroiied of record in the Court of Common Pleas. And by the 23 Eliz. c. 3. /. i. & 6. it is enaded that every writ of covenant and other writ, whereupon any fine fhall be levied, the return thereof, the writ oi'dcdimus ;poteJla- tem made for the Icnowledging of any of the fame fines, the return thereof, the con- cord, note and foot of every fuch fine, the proclamations made thereupon, and the king's filver, may upon the requeft or elec- tion of any perfon, be inroiied in rolls of parchment; and that the inrolments of the fame, or of any part thereof, fiiall be of as good force and validity in law, to all in- tents, refpe6ls, and purpofes, for fo much of any of them fo inroiied, as the fame be- ing extant and remaining, were or ought by law to be. GG. The office of the chirographer of fines Vv-as burnt down in the year 1679, \vhercby feveral records of fines which had been levied in 'trinity and Michaelmas term precedi.ng, were either burnt or loft. In confequence of which an zdi was pafied, 2,1 Car. 1. r. 3. rt.'citing, that the fines fo burnt or loft had duly pafied all the offices; fo that by the records of the king's filver, the the notes of the curfitor who made out the Chnp^l . writs of covenantj and the entries thereof at the ofTiCe of alienation, and by the book of entries of fines kept by the chirographer's deputy,' &c. the full contents of all fucli fines would appear. But fo» want of the records of the fines fo burnt or loft, pur- chafers and others, whofe titles were fe- cured under the faid fines, were in danger of having the fame impeached. It was therefore enacted, that the faid chiro- grapher or his deputy fhould, before rhe end of the next Trinity termi, upon oath certify to the Jiiftices of the Comiv.on Pleas, a note of all fuch fines entered into the faid book kept by the faid deputy, that he, upon diligent fearch ihould find, were either burnt or loll, by reafon of the faid fire; which certificate faould be in parch- ment, fairly written, and a copy thereof /en up in IVeJlminfier-Ually &c. and that any time within three years the Chief Jufticc of the faid Court of Common Pleas, toge- ther with any one or more of the Juftices of the faid Court, fliould have power to fend for any ofiicer's books, records, &c. and upon full examination of any fuch fine, the records whereof were burnt or loil, fiiould direct the faid chirographcr or his deputy deputy to new-ingrofs the note and foot of fuch fine without fee, and to carry the fame before the faid Chief Juftice, and fuch other of the faid juftices as lliall have taken the examination concerning the burning or lofs of fuch fine, who were required to fub- fcribe their names at the bottom of the faid note and foot ; and every fuch fine whereof the record fiiould be fo new-en- grofTed, fhould be of the fame force and effect, as if it had dill remained upon re- cord unconfumed or not loft. No aver»:ent 67. It is a principle of the common can ke made j ^j^^^ ^^^ evidencc of a rccord is of agamji ths chh'O'rraph of fo high and certain a nature, that its au- "t-IuI. 2(yo thenticity is never permitted to be called 3- inqueftion; fo that no averment can be ^^^ ^' ' made againft any fad which is once upon record i and therefore when the foot, or chirographitm of a fine is recorded, no averment can be made as to the caption or time of it's acknowledgajent, but it muft be confidered as a fine of that term in which it is recorded. Lloyd v., 63. Upon a trial at bar in ejedlment it Vifc. Sayand appeared that Nathaniel Lord Vifcount I Brown 379. Say and Sele being tenant in tail of the Saik- 34«- premilTes 10 Mod. 40. 47 premincs in queftion, with remainder chap. If, over, levied a fine in Ooloher 1701, and, "^ — * — ^ in Michaelmas term following, fuffcred a recovery: and to prove this the chirograph of a fine was produced, importing, tliat Nathaniel Vifcount Say and ^ele levied that fine on the 23d of Oilohcr 170J, and the exemplification of a common recovery was alfo produced which appeared to have been fufiered on the iSch of November 1701. The queftion was, Whether the cognizee of the fine had the freehold in him when the recovery was fufi'ered ? It was infifted by the plaintifi*'s counfei that he had not; for that the fine given in evidence to make him fu, was not in fact acknowledged, until the 2d of March J 70 1, which was four months after the recovery was fuffered: and, to fupport this fii^^, they oflcrcd to produce and prove, ift, The record of the recogni- zance, or acknowledgment of the fine, under the hand of the Lord Chief Jufticc J'revory whereby it appeared that the ac- knowledgment thereof was made and taken before the faid Lord Chief Jufticc on the 2d day of March 170/, and not before. 2dly, Tlut thic ackiiowlcdgmei-'j: of 48 iFiue^. Chap. ir. of the fine was the very true acknowledg- ment or recognizance of the concord upon which the fine given in evidence pafTed, and upon which the chirograph of that fine was made and engroffed. And 3dly, They offered to produce the files of the Court of Common Pleas of the acknow- ledgments of all fines in Michaelmas term 1 70 1, whereby it would appear that Lord Say and Sele did not acknowledge any fine whatfoever, of or in that term at any time before the fufFering the common recovery. But the Court of Queen's Bench refufed to admit any of the matters ofl'ered againft the fine, to be given in evidence, being of opinion that no proof or evidence of the time of the acknowledg- ment of a fine ought to be admitted, con- trary to, or againft the chirograph thereof; and that the record, which is the chiro- graph of the fine, cannot be r'alfified until it is vacated or reverfed. ' From this judgment a writ of error was brought in the Houfe of Lords; and one of the errors affigned was, becaufe the records and matters offered to be given in evidence, were not admitted or allowed by lines?. 49 by the Court to be given In evidence to Clup. ir, prove the true time of acknowledging the fine: in fupport of which it was infilled, that as the fine was not in fa6t acknow- ledged until the 2d of March, it could not transfer the freehold of the lands to the tenant to the praecipe three months before the time of that acknowledgment; and that the plaintiff was admitted to the proof of this faft, by the ftatute 23 £//z. Ante f. 46. c. 3. /. 5. which direfls that the time of the acknowledgment fhall be certified by thole who take fuch acknowledgment; for if a man cannot give in evidence the time of acknowledging a fine, in order to avoid deceit impofed upon him by that fine, this ftatute would anfwer no pur- pofe. On the other fide it was contended, that the caption of the fine ought not to be admitted againft the record or indenture of the fine ; for it would fliake all family fettlements, and introduce the greateft tnccrtainty and confufion in all convey- ances by fines, upon which the mod con- fiderable cftates in the kingdom depended; and that an attempt to fet afide a fine Vol. I. E upon Vide infra. upon evidence was never before made* That, in the indentures of all fines, the concord is recorded to be made in Court; whereas the captions of the acknowledg- ments of all fines (except a very few) are taken out of Court, either before the Lord Chief Juftice of the Common Pleas, or Commiflloners in the country; and upon a writ of error, no error can be af- figned in the caption varying from the re- cord, as that would be an error contrary to the record : but if in the prefcnt cafe the fine was irregular, the proper method was to apply to the Court of Common Pleas where the fame was levied, and not attempt in a fummary way to invalidate it by evidence in ejeftment. The judg- ment was affirmed. ()f motions to prevent fiats from being xomplete^M 69. Applications are fometimes made to the Court of Com.mon Pleas to prevent fines from being completed, on a fuggef- tion that the parties are difabled by law from levying fuch fines. Wilfon 96. • By a rule of Court made Hil. 1% and 29 Car. 2. all perfons making any com- plaint againft fines acknowledged by in- fantt> fants, feme-coverts without the confcnt of Chap. n. their hiifbands, or perfons of non fane me- tnoriey or otherwife difabled by law, to acknowlege the fame, or by any perfon in the name of another, or by the like de- ceit, and obtaining rules for the (laying of fuch fines, fhall from term to term, fo long as they fhall expedl benefit or ob- fervance of fuch rules, enter and continue the fame rule for that term, or leave co- pies thereof with the Cuftos Brevium, Clerk of the King's Silver, and Chiro- grapher, that the fame may thereby be the better taken notice of; or, in defiuk thereof, the faid officers, or any of them, fliall not Hand farther obliged thereby. And all perfons concerned in the ob- taining or profecuting fuch rules for the Haying of fuch fines fo levied as aforefaid, their attornies or clerks, are thereby en- joined every term to fcarch and fee the books and entries of fines with the clerk of the king's filver, or other officer, where entries arc kept for that purpofe. 70. By a rule of Court made Pa/lh. 2^ Car. 2. all manner o( caveats and or- E 2 ders ders for the (lopping any fines (hall be re- newed every term, and copies thereof left with the Clerk of the King's Silver, for which he is to demand only his antient fee of 3 J. 4^. the termj and in default thereof all caveats that fhall not be fo renewed, Ihall lofe their force and be void. Of the Pro- 7 1- When fines became a general mode damatiom. ^f afTurance, it became neceflary to ren- der the levying of them a matter of the mod public notoriety, on account of thofe whofe rights might be barred by not making their claim in due time. For this purpofe it was enadled by the 27 Ed. i. c. J. that the notes of all fines fhould in future be openly read in the Court of Common Pleas at two certain days in one week, and that during fuch reading all pleas fiiould ceafe. 72. By the ftatute 4 Ben. 7. c. 24. / i. it is enafted, "That after engrcfTing of " every fine, it fhall be read and pro- ** claimed in open court the fame term, *' and in three terms then next following " the fame ingrofTing, in the fame court, " at four feveral days in each term, and "in " in the fame time that it is fo read, all " pleas to ceafe." Since the making of this a6V, the proclamations are indorfed on the foot of the fine, and are confidered as matters of record. 73. By the words of the ftatute 4 Hen, Plowd. 571. 7. if one of the three terms immediately fubfequent to that in which a fine was levied, was adjourned, the proclamations would have been ineffedlual, and this de- fe<5t could not have been fupplied in the next term ; to remedy which, a ftatute was pafTed i Mary c. 7. /. 2. enafting ** That all fines, whereupon the procla- " mations Ihould not, by reafon of the ** adjournment of any term by writ, be ** duly made fhould be of as good force, ** effedt and ftrength, to all intents and *' purpofes, as if the term had not been ** adjourned.'* It has been determined by all the judges Dyer 186. a. that even an adjournment of part of a term ^ ^"^" 5 '9- was provided for by this afl, becaufe it was a favourable law, and to be conftrued by equity. E 3 74. By 74. By the 31 Eliz. c, 2. it is enafled. That all fines fliall be proclaimed only four times, that is to fay, once in the term wherein they are ingrofTed, and once in every of the three terms holden next a^rer the fame ingroflingj and that every fine proclaimed as aforefaid, (hall be of as great force and effefl in law to all intents and purpofes, as if the fame had been fifteen times proclaimed. 3Rep. S6, b. 75. Since the ftatute 4 Hen. 7. 'fines Wakefield v. j^^vc been diftinguifhed into fines at com- Kodg(un. Cro. Eliz. nion lav/, and fines with proclamations : it ^9-' is in the eleflion of every perfon who levies a fine to have it proclaimed in the iifual manner, or not. And if the cognizee dies before the proclamations are made, his heirs may caufe the fine to be proclaimed, Fifh V. 76. The ftatute directs that the procla- Fiovvd^'261: nations fiiould be made not only during pyer i8i. b. term, but alfo in Court at the time v/hen the Judges are fitting : fo that if the procla- mations happen to be made cither before the beginning or after the end of term, or on a Sunday or other feftival day on which the Court does not fit, being dies non juri- dicusj the proclamations will be all void. And And although the proclamations flioijld be made on days which were dies juridici -, yet if the contrary appears on record, the pro- clamations are void, as no averment can be admitted againft the record. 77. An error in the proclamations would Dyer 216. a. not however deftroy the validity of the fine, * ^"^^' ^°^' for it would ftill enure as a fine at com- mon law ; becaufe the fine taken feparate- ly is one perfect matter of record, before the proclamations are made, which binds the parties and the right of the land, and the proclamaiions are diftincl and difi'erent from the fine, they and the fine ocing feve- ral matters of record, for which reafon error in the one is not error m the other. But if the fine is erroneous, the proclama- tions are then vo;d, becaufe ihe fine is the principal, and fuhlato Juhjetlo tollitur ejus accidens, 78. If the proclamations on a fine be Ragg and certified in a certiorari by the cujlos brevi- Cafe^^? Leo. «;», and it appears by the certificate that 106. two of the proclamations were made in one day, a new certiorari may be directed to the chirographc^r, and if he certifies that the proclamations were well and duly E 4 made. made, the Court will dired the proclama- tions in the office of the cujios brevium to be amended according to the proclamations in the chirographer's office, becaufe the chi- rographer makes the proclamations, and is the principal officer as to them ; and the cujios brevium has only an abftradt of them. Gilb. Evid. 79. When a fine with proclamations is 25.BullerN. piven in evidence, the proclamations muft V. Z2Q. ^ be examined by the roll, becaufe the chiro- grapher is not appointed by the ftatute to copy the proclamations, as he is to copy the concord. 80. By the 23 Eliz. c. 3. /. 6. it is enafted that the chirographer ffiall every term, write out a table of the fines levied in each county in that term, and fhall affix it in fome open part of the Court of Com- mon Pleas all the next term ; and fhall alfo deliver the contents of each table to the Sheriff of each county, who fhall at the next afTifes fix the fame in fome open part of the court. It is Ffh-nvfnr 8t. It was formerly a pradlice for one 'crhoM^e a pcrfon to acknowkdge a fine in the name Fine in the Ol name cf another of another, and in fuch cafes the Court of Star Chamber, within whofe jurifdiftion frauds of this kind were confidcred, could only punifh the offender by innprifonment. But by the ftatute 2i Jac. i. c. 26. it is ena6ted, that all and every perfon and per- fons who ihall acknowledge any fine in the name of any other perfon, not privy or con- fenting to the fame, and fhall be lawfully convifled thereof, Ihall fuffer death with- out benefit of clergy. 82. With refped to the time when a At ii:hat t-vte fine is completed, Sir Edward Coke in his \^'"'-' '' ""'• comment on the ftatute de 7nodo levandi zinil. >i7. fines fays, " A fine is faid to be levied " when the writ of covenant is returned, " and the concord and the king's filver du- " ly entered ; this maketh the land to pafs, " and from this (hall the year and day be " accounted, albeit the fine be engroflcd " afterwards.'' The modern method of levying a fine by firft acknowledging the concord, then fu- ing out an original writ, and paying the king's filver, has given rife to a different mode of cxpreffing the rule laid down by Sir Edward Coke j for a fine is now faid to 3 be iTinesf. be completed upon the entry of the king's filver, (provided it was previoiilly acknow- ledged); and if any of the cognizors die before the reniaining parts of the fine are perfefted,.iliil the fine will be valid. 83. This principle has fo far prevailed, that the Court will not prevent a fine fronn being completed after the king's filver ia paid, if the parties are alive, Petty's cafe. A motion was made to ftay the pafling I Frcem. 78. ^f ^ ^^^^ which was acknowledged by an infant of thirteen years old, the Court faid ■ as the king's filver was paid, it was gone too far. But they afiigned the infant a guardian, who had inftrudions to bring a writ of error to reverfe it. 84. In confequence of the rule of Court Ante f 4" already fiated, by which it is dire^ed that the writ of covenant fliall in future be fued cut before the concord is acknowledged, it may now be laid down that a fine is completed when the concord is duly ac- knowledged. m^naFine 85. Although it muft be very material irsjmioo;c- in many inftances to fix the precife time when rate. finesf. when a fine begins to operate, yet it is a fiibjeft refpefling which very little is to be found in the writers on law. But if we reafon by analogy from the nature and ef- fcfls of other judgments, we Ihall be able to afcertain this point. The time when a fine is acknowledged is perfe(flly immaterial in this refped, for we have already feen an inftance, where it was Ante f. 68. determined, that a fine began to operate in Michaelmas term, although it was not acknowledged until four months after. 86. The term in law, is confidered to Cro.Car.102. many purpofes as but one day, and if a judgment be given at any time during the term, it relates to the firft day of that term, and is confidered in law as having been given on that day ; and the firft day of term is the eflbin day, for the quarto die fojl is only a day of grace. However if a writ is returnable on the fecond or any other return day of the term, the judgment will then relate to that return day, for until the return of the writ, the judgment cannot poflibly be given. 87. A fine0. S7. A fine being confidered as a judg- ment, inuft, like all other judgments, relate to the firfl day of term in which it is re- corded, if the writ of covenant whereon it is levied be returnable the firft day of term, otherwife it mull relate to the return day of the writ of covenant J for, in levying a fine, there is no continuance of procefs to retard the relation, as the licentia concor- dandi is fuppofed to be obtained on the return of the v/rit of covenant, and the concord immediately acknowledged. 88. In fupport of this propofition I fhall tranfcribe a cafe reported by Jenkins, of which I prefume the authority will not be dilputed, although the reporter has not mentioned when or by what Court it was determined. jeok. 250. " A. covenants with B. to levy a fine " Ocf. Michaelis i Car. A. acknowledges " a ftatute to C. 8th O^oher fame year. " The fine is levied according to the cove- " nanr, and the conufance taken the 12th " Otiober aforefaid. This conufee fhall - " avoid faid ftatute by relation to the day " of the eflbin, which was before the faid ** 8th day of O^'/i^^^r." 89. In 89. In a note of Mr. Peere Wiliia-mSy it Chap. II. is faid, that \^ A. devifes land and levies a ^r \ "^^ Vol.j.p. i^O, fine, and the caption and deed of ufes are before the will, but the writ of covenant is returnable after the will, this feeins a revo- cation ; becaufe a fine operates as fucli from the return of the writ of covenant, and not from the caption ; and yet (fays the reporter) this is a hard cafe, fince by the caption the p^rty conufor does all his part, and the reft is only the ad of the clerk or his attorney, without anv particu- lar inftrudlions from the party. Thefepaflages, and the conclufionsdrawn J Burr. ;iie from the rules by which all other judg- ments are conftrued, fcem fully to prove, that a fine whether it be acknowledged be- fore or after the original writ on which it is levied is fued out, will begin to operate from the return day of fuch original writ. Fines executed end exei utory. 6i JTiitcief. CHAPTER III. Of the feveral Sorts of Fines. 90. T¥7HENEVER a judgment is V V obtained, v/hether in an adver- fary or an amicable fuit, the next ftep is to procure the execution of it, by obtaining the aftual pofleffion of the thing recovered: and for this purpofe the law has provided^ that in all real a(5tion<;, the perfon who re- covers, fhall have a writ of habere facias Jeifmamj direfted to the fheriff of the coun- ty in which the lands are fituated, com- manding him to deliver the pofleflion ac- cording to the judgment* Ante f. 4. Fines having at all times been confider- ed as judgments in adverfary fuits, a writ of habere facias JeJjmam always iffued to put the party in pofleffion who acquired the lands by a fine. When fines became com- mon afTurances, the purchafer in order to ^ avoid the trouble and expence of fuine out 2Bac. Ab. . rr rr ^ u J • r • i\. 524. ^ wi^ or poiremon, had in lome initances livery of feifin given him in the country, and for his further afiurance, obliged to vendor vendor to covenant that he v/ould levy a Chap. III. fine to him ; but as the purchafcr was al- "^-^'v^'*-' ready in polIefTion, no writ of habere fades Jeifinam was deemed neceHary. 91. This pra6lice gave rife to the di- Co.Read.2, ftinclion between fines executed acd fines executory. A fine execuced immediately transferred the poflefTion from tlic cognizor to the cognizee, who might derefore enter on the lands which had been conveyed to him by the fine, as foon as it was levied. A fine executory did not of its own force give immediate pofleffion in law to the cognizee, as he could not immediately en- ter on the lands : but it was nccefTary that he fhould fue out a writ of habere facias feifinamy in order to gain poireiTion of that which he had acquired by the fine. 92. The cognizee of a fine could not , rn;!.^2o.a, dlftrain before entry, bccaule an avowry ^'^^P- Tou. came in lieu of an a6lion, to which privity ^^' was requifire ; for the fame reafon he could not have an aflion of wafte, a writ of entry ad cormnunem legem in confunili cafu, or in tafu prov'ifo. But the cognizee might rake thofe things which the lord might feize or GHb. Tea. enter '°^- fine0. enter upon, without bringing any adlion, as a heriot, lands fallen by efcheat, or might enter for an alienation of a tenant for life. 2 Inft. 469, 93. Where the cognizee of a fine exe- eevesiSp, ^utory had fufFered a year and a day to elapfe from the time when the fine was le- vied, without fuing ou: a writ of habere fa* cias [eifinaniy he muft then have fued out a writ o( Jcire facias y which might alfo be fued out by the heir of the cognizee. 94. By this writ the fherifF was com- manded to warn the terre-tenants to appear and fhew caufe, if they could, why the cog- nizee of the fine, or his heirs, fhould not have execution of the fine. And if at the return of tht Jcire facias the terre-tenants did not fhew fome caufe to the contrary, the plaintiff or cognizee became intitledof courfe to a writ of habere facias feifinam, Shep.Tou.4. 95. If the party to whom the eftate was limited by a fine executory was in pofieffion at the rime when fuch a fine was levied, he need not have fued out a writ oi habere fa- cias feifinam J for in that cafe the fine would enure by way of cxtinguifhment. 96. If fines. 65 96. If a fine executory was levied of a Chap . IlL reveriion depending on an eflate for life, or , Rep. ^;. a. years, or of a feignory, or any thing which lay in grant, they would pafs imn:icdiately, becaufe it would be innpoflible to give ac- tual poflefrion of them. 97. Since the ftatute of ufes 27 Hen. 8. Boo^h 250. writs of pofleflion are never fued out where ^'S^t 4y-^ ^ fines are levied to ufes, for the ftatute exe- cuting the pofTefTion to the ufe, the cognizee is immediately in poflefiion without attorn- ment; and by the 4th and 5th Ann c. 16. attornment after a fine is become unnecef- fary, fo that writs of pofTcirion are now totally difufed. Fines are again divided into four forts, 2Comm.352. ift. Fines fur cognizance de droit come ceoy ^c. 2d, Fines fur cognizance de droit tantum, 3d, Fines Jur concejfit. 4th, Fines Jur done grant ^ render, 98. A ^nt fur cognizance de droit come Fines fur co^- teo qii'il a de fon done is the beft and furcft «;^'""^'- '^' I J • • J droit come ceo, kind of fine ; for the deforciant, in order to ^^, keep his fuppofed covenant with the plain- tiflf, of conveying him the lands in queftion, and at the fame time to avoid the formali- VoL. I. F ty 66 iriiiej^. Chap. III. ty of an aclual feoffment, with livery of feifm, acknowledges in Court a former feoffment or gift in poflelTion, to have been made by him to the plaintiff; fo that it is rather an acknowledgment of a former conveyance than a conveyance originally made; for the deforciant acknowledges, cognojcity the right to be in the plaintiff, or cognizee, as that which he had defone done, of the proper gift of himfelf, the cog- nizor. I infl. 50. b. pp. This fpecics of fine has been called \ fuL 141!^ ^ feoffment of record ; but this cxpreffion aComm.3^4 is by no means accurate; for there are cafes in which a feoffment has a more ex- tenfive operation than a fine ; and therefore Sir William BlackJlo?ie has juflly obferved, that it might, with more accuracy be called an acknowledgment of a feoffment on record. 100. The form of this fine is: " And " the agreement is fuch, to wit, that the " aforefaid A. hath acknowledged the *^ aforefaid manor, ^c. to be the right of •* mm the faid C. as that which the faid *' C hath of the gift of the aforefaid A. " an4 that he hath remifed and quit-claimed . " from *f from him the faid A. and his heirs " to the aforefaid C. and his heirs for " ever." loi. This fpecies of fine is executed, Co. Read. 2. and therefore gives the cognizee imme- diate poflefTion of the land. 102. It alfo pafles an eftate in fee-fim- i Inft. 9. b. pie without the word heirs \ for when the cognizor acknowledges the lands to be the right of the cognizee, it would be re- pugnant and contradidlory to his own ac- knowledgment to claim any eflate in the lands in remainder or reverfion. Bcfides in every judgment a fee-fimple was reco- vered, and the cognizance or acknow- ledgment of the concord coming in the place of a judgment, muft have the fame efFea. 1 03. But if the concord is qualified by the x Salk. 340. cxprefs words of the parties, as if the lands are limited to the cognizee for life, or to the cognizee and the heirs of Iiis body, the fine will then only pafs an eftate for life, or an eflate in tail; for it would be abfurd that a greater eftate fliould pafs than that which the parties themfeives F 2 have have limited; and the preceding donation or feoffment which is acknowledged in the fine may as well be fuppofcd to have been for life, or in tail, as in fee. Bro. Ab. tit. 104. A rent cannot be referved on a Fine pi. 30. fine Jur cognizance de droit come ceo, or on any other fine which is executed ; becaufc as the cognizance fuppofes a preceding gift, the cognizor cannot referve to him- felf any thing out of lands, whereof he has already conveyed away the abfolute property ; fo that the reddendum comes too late, when a precedent abfolute gift without any fuch refervation is before acknowledged. Roll. Ab. 105. But if an eftate for life only be tit. Fine ',0) conveyed by the fine, the cognizor may then referve a rent with a claufe of dif- trefsj becaufe not having acknowledged the entire and abfolute property to be in the cognizee, it is not repugnant to referve a rent out of it. Fines fur 106. A fine fur cognizance de droit tan- co^^nt^ance , ^^^^ ^j. upon acknowleds;ment of the right de droit tan- ., , • n r turn. only, Without the circumltance or a pre- 2 Comra. ceding gift by the cognizor. This fpecies 553- of of fine is generally ufed to p.ifs a rever- chap. Ill, fionary intcreft, which is in the cognizor^ v— -v^»-» for of fiich reverfions there can be no feoffment or donation with livery fup- pofcd, .as the freehold and pofrcOion dur- ing the particular cftate is veftcd in a third perfon. This fine may alfo be ufed by a tenant Co. Read. '. for life, in order to make a fur render of his life eftate to the perfon in remainder or reverfion j and it is then calleq a fine upon furrcnder. 107. The form of it is: "And the ** agreement is fuch, to wit, that the " aforefaid A, hath acknowledged the " aforefaid tenements, iSc. to be the " right of the faid R. and he hath granted " for himfelf and his heirs, that the afore- " faid tenements which W, R. and M. his " wife hold for the term of the life of the " faid G. of the inheritance of the faid J. " on the day on which this agreement was ** made, and which after the deceafe of ** him the faid G. ought to revert to the " faid A. and his heirs, (hall after the de- " ceafe of the faid G. entirely remain to " the faid B, and his heirs for ever." F 3 108. This io8. This fine is executory, and pafTes a fee-finnple without the word heirs. It 2 Bac! Ab. Teems to have been the nioft ancient 524- fpccies of fine j for the demandant was obliced to follow the rules of law, and fue out a writ of pofTeffion : but when it be- came ufual to procure a feoffment of the lands firft, a writ of pofTeffion was unne- cefTary, which probably gave rife to fines Jur cognizance de droit come ceo, Co. Read. 3. 109. If there be a tenant for life, re- mainder for life, and the firft tenant for life levies a fine to the perfon in remain- der, Jur cognizance de droit tantitm, it will operate merely as a furrender of his eflate for life ; becaufe, by this fine the tenant for life only acknowledges all the right which he had in the lands to belong to the perfon in remainder. But if in this cafe the tenant for life had levied a fine Jtir ccg- Vide infra, tjizance de droit ccuie ceOy i^c. it would create a forfeiture of both their efiates, and the perfon in revTrfion might enter immediately i becaufe a ^mtfiir cognizance de droit come ceoy &c. is always fuppofed to pafs an eflate in fee-fimple, un'efs the contrary is exprefsly mentioned j whereas a fine fur cognizance de droit tantam only conveys conveys all the right which the cogiiizor Chap. HI. has, and no more. ^^ "^ ' iio. A fine yi'tr ccncejfit is where the Fine fur con- cogni-zor, in order to make an end of (.lif- 2 CoiDm. piites, tho* he acknowledges no precedent 353. right or gift, grants to the cognizee an eftate de mvoy by way of fuppofed com- pofuion, which may be either an eftate in fee, in tail, for life, or even for years. The form of this fine is : " And the '* agreement is fiich, to wit, that the " aforefaid /I. hath granted to the afore- ** faid B. the aforefaid tenements, i^c. to " hold for 61 years." It is executory. III. A ?[n^ Jur done grant £ff render \s Fine fur Jem- a double fine, comprehendinnr the fine fur d^"! cognizance de droit come ceo^ and the fine ^ Comm. fur conceffit. It is ufed in order to create ^"'^' particular limitations ofeftatesj whereas the fine /ur cognizance de droit come ceo conveys nothing but an abfolute eftate, either of inheritance, or at leaft of free- hold. In this fine the cognizee, after the right is acknowledged to be in him, renders F 4 or or grants back to the cognizor feme other cftate in the lands. 1 1 2. The form of this fine is : " And " the agreenaent is fuch, to wit, that the " aforefaid A. hath acknowledged the " aforefaid tenements to be the right of " him the faid B. as thofe v/hich the faid " 5. hath of the gift of the aforefaid A, " and thofe he hath remifed and quic- ** claimed from himfclf the faid A, and '' his heirs for ever, (warranty from the "cognizor): and for this acknowledg- " ment, renaife, quit-claim, warranty, *' fine, and agreement, the faid B. hath " granted to the faid A. the aforefaid te- " nements, i^c. and this he hath rendered *' to him, in the fame court to hold the " fiiid tenements, ^c, to the faid A. and " the heirs of his body." Co Read. ' U* ^"^ ^ ^^^ ^^ ^^'^ ^^^^ ^^^ render ^'- , muft be made of the lands demanded in Z Roll. Abr. . • , • r r u- -/r • 15, 16. the original writ, or or fomething iiiuing out of thofe lands. Thus if the cogni- zance be made of the manor o( Dcile, the cognizee cannot make a render of the manor of fale, or if the cognizance be made of the third part of a manor, the render if(nc3. 73 render cannot be oT the wl.ole manor, Chap. HI . becaufc the Court can only determine the right of that about which the parties ccn- tended, and which was demanded in the original writ : but if the cognizor acknow- ledges all his right in the lands to be in the cognizee, and the cognizee in return grants and renders to the cognizor a par- ticular eftate in the lands, or a rent or common out of it, th6 render is good, be- caufe the determination entirely refers to the things in difpute, one party taking the ultimate property in the land, and the other a particular eftate in it; all which is comprehended in the original writ. 114. It follows from the fame princi- Co. Read. 6. pie, that the lands muft be rendered in the firft indance to fome perfon named in the original writ; but an eftate may be rendered to a perfon not named in the original writ by way of remainder, as well as in any other kind of concord. 115. A fine fur done grant & render is executed as to the firft part, and executory as to the fecond ; for if the firft pai t was pot executed, it would be void, as the cognizee 74 JfniC0. Chap III, • cognizee can have nothing to render to ^"""""^^'"'"^ the cognizor until he is in pofleffion. Sbep. Tou. '^6. This rpecics of fine being gene- *ji. rally ufed to create particular limitations of cftates, is conftrued rather as a private deed or conveyance, than as a judgment in an adverfary fuit^ and therefore it need not have fuch a precife form as other fines', Tey^cafe, ^ I?* Hufband and wife levied a fine to I Rep. 38. yi and B. and the heirs of /^. of the ma- nor of Layer de la Hay^ Layer BrittoHy and feveral other manors, and a great number of acres of land, meadow, paflure, ^c, in Layer de la Hay, Layer Eriiton, &'c. and in this fine feveral grants and renders were made. In the third render the manors of Layer de la Hay, and Layer Britton, et te- nement a ;pra:diSla in Layer de la Hay and .Layer Britton, were granted and rendered to the hull^and and wife, and to the heirs of the hufband, and by the fourth ren- der 115 acres of land in Layer Br it ton were granted and rendered to the wife in ■tail. ■ After After the death of the hufband, his bro- ther and heir brought a writ of error, and adlgned for error the repugnancy between the third and fourth render, for, by the third render all fhe lands in Layer Britton were granted to the hufband and wife, and to the heirs of the hufband; and, by the fourth render, part of the fanne te- nements were granted to the wife in tail; fo that the fame lands were granted to two different perfons, wliich was repug- nant and erroneous. It was obfcrved, that a fine was of the fanne nature as a judgment, and as BralJfon fays, Opcrtet ut ves cert a deducatur in judicium. But the Court refolved, that the fourth ren- der, as to that which was contained in the . third render, fhould be of the fame con- dition and quality in conftruftion, as a charter or other conveyance between party and party, and need not have fuch a prc- cife form as a writ or judgment, and therefore that the fourth render was good, and fhould invalidate the third render as to the I J5 acres. 1 1 8. If lands be rendered by fine to a i Rep. 156. perfon and his heirs, the lands are thereby ^" 2 iinme- immediately bound ; and altho' the per- fon to whom the render is made dies be- fore execution, yet his heirs will have the lands ; for the fine having been levied in the life-time of the parties, the lands were fo bound by it, that it could not be altered. ifineiE^ 77 CHAPTER IV. In what Courts Fines may be levied and before whom acknowledged* 119. \ FINE being a comporuion xjL of a fuit commenced for the recovery of real property, it might ori- ginally have been levied in any court which had jurifdidion to hold pleas of land: and accordingly it appears that, in the early ages of the law, when courts were more numerous, and their jurifdiftion more cxtcnfive than at prefent, fines were fre- Gilb. Tea: quently levied in the Lord's Court, the 1°°' „..„ ' •' . Hale's tlift- Hundred Court, and the County Court; 151. and in Dugdale's Origines Juridiciales 92. J^'^5^ 3 ^^P- there is a record of a fine which was le- vied in the county court of Nottingham in the reign of king John, Fines were alfo levied in all the courts Dugd. O-lg. at Wefiminfier, and even before the kins: J"*"- J°* '^^ nimlelr, as appears from a great nurr:ber form. Ang, of records which have been publifhed in ^^- 3^4- Spelman's GlofTary, and by Dugdale and Jiaddox^' M-ciddox, Exch. J 45. 120. From 120. From the time of the appoint- ment of Juitices in Eyre by Hen. II. fines were ufually levied before them, on ac- count of the pre-eminence of their court over the County Courts; and Maddox has No. 365, preferved feveral concords of fines which 366, 367. ^^^ exprefied to have been levied, coram 369. 372. ^ Roll. Ab. ahhate de Evefham Johanne de Munmid, ut. Finef^y. ^^^ Jujiiciariis itinerantibtis. Court of 121. In confequence of the fixed refi- CamjHon dence of the Court of Common Pleas at Inft Wejlminfter by Magna Charta, fines were thenceforth ufually levied in that court, becaufe therein only could real a6tions be commenced; however if a record was re- moved by a writ of error from the Court Denfball of Common Pleas into the Court of King's Read, oa Bench, a compofidon of the fuit might take place there, by vv'hich means a fine might be levied in that court. Fines 3. 2 Inft. 515. 122. It is enafted by the f^atute de modo levandi fines, that fines fhall be levied in the Court of Common Pleas, or before Juftices in Eyre, and not elfevvhere, and that a fine fhall not be levied unlefs all the juftices are preftnt. But Sir Edward Co. Read. 8. Coke fays, that the latter part of this fla- tute tutc was repealed by implication by the Chzp. IV, ftatute 4 Hen. 7. lb that now a fine levied in the Court of Common Pleas before two juflices is confidered to be equally valid, as if all th& Judges were prefent. 123. An opinion is advanced by Sir 2111/1.5:4, Edward Coke that a fine cannot now be ^'"' ^^ '■' \ in. Ao. tit, levied fo as to have the force of a final ConufanGe oi" concord in anv court but the Common ^f^^' ^: pi. 4. E. Pleas J and therefore that the king can- pi. 2. not now, in contradi6tion to this negative ftature, grant a power to hold pleas for the purpofe of levying fines. He feems alio to have been of opinion, that fince this ftatute, fines cannot be levied in any inferior court, unlefs the privilege of hold- ing fuch court has been confirmed by A61 of Parliament; but this is certainly a mif- take, for fines may ftiil be levied in infe- rior courts, as will be lliewn in a fubfc- quent part of this chapter. 124. The counties palatine of LancaJ- ter, Chejler and Durham having private courts of their own, the king's ordinary writs do not run there, fo that fines could not be levied in the Court of Common Pleas at IFeJiminfier of lands ficuated in thofc Stints. thofe counties, but this dekd: has been remedied by the following ftatutes. Court of the 125. By the ftatute 37 //' «■- of dedimus potejiatem are directed by t!ie u tobeco-iinid ftatute 23 Eliz. c. 23. /. 5. to certify the mons beyond Trent, praying that a jufUceof one or the other Bench fhould come twice each year into their counties^ to take the acknowledgment of fines. acknow- acknowledgment of the fine within twelve months after it is taken, and alfo to cer- tify the year and day whereon the fame was acknowledged. FItz. N. B. T44. If the commiflioners, in a writ of ^^^' o{ dedimus poiejlatem, refufe to certify the acknowledgment of a fine purfuant to this ftatute, within twelve months, a ceriicrari may be av/arded againfl them, reciting the fubftance of the writ of dedimus ptej^ tatenij and the acknowledgement of the fine, commanding them to certify itj and in cafe of their refufal, an alias, a pluriesy and an attachment will ifiue againft them. Ijjem. B45- -^ f^s commifTioners die before they have certified the acknowledgement of a fine, their executors muft certify it upon a certiorari', and in cafe of their re- fufal, the fame procefs lies againft them as againft the commifTioners. Downes v. 1 46. If a writ of dedi'miis fotejlatcm be direfled to two perfons jointly, and only one of them takes the acknowledgement of the fine it will be erroneous. .47. If 2 240 flllCJJ. 97 147. IF a perfon has feveral writs of Chap. IV'. covenant depending againft feveral per- ' J|^j ' fons in different counties, he may have a '^^J^ writ oi dedimus pteftatem direfled to com- mifTioners to take their acknowledgments feverally. 148. A writ of dedimus pcteftateni was Anonymous Cn '■■■ 57< awarded to take the acknowledgment of ^''o-^^*- four perfons to the fame fine. The com- mifTioners returned the acknowledgment of three of the perfons only. The Court refolved that the fine fhould pafs as againft the three perfons who had ac- knowledged it; and that the name oi the fourth perfon fliould be erafed out of the writ of covenant and dsdmus to- tejlatem. It was refolved in the fame cafe, that if a writ o( dedimus poteftatem be awarded to take the acknowledgment of three perfons to the lame fine, the commiiTioners need not take the acknowledgment of all the three perfons at the fame time, but may take the acknowledgment of one of them at one time, and of another of them at another time. Vol. I. H 149- A fine 149. A fine will not be reveiTed for any trifiing error or miftake in the return made by connminicners under a writ of dcdimus foteftatcm. Earl of Bed- -^ '^''^^'^ ^^ error was brought to reverfe ford V. a fine taken by commiiTioners, becaufe €ro. iac. upon the back of the wiit of dedimus po- 77' teftatem it was executio ijllus hre'uis patet m quodam fanello huic brexji adnexo, wherea's it ought to have been in quadam Jchedula huic brevi amiexa. But all the Court held it was but matter of form and not mate- rial, for although it be not properly faid to be a pannel, yet a pannel and fchedule are all one in iubltance, and no caufe to reverfe the fine. Shep. Tou. ij;o. The writ of dedimus *pGteftatem Co Read recites, that a writ of covenant is de- 1 Roll. Rep. pending between the parties, and there-. "^^' fore fhould bear date after the writ of covenant, Goburn v. A writ of error ^7as brought to reverfj Wright, ^ f^j,g levied at Chefter^ becaufe the tefte of Cro. Eliz. , ./-,,. n . • ^ ^.Q^ the writ 01 dedimus potejtatem was prior io Herbert v. ^y^^^ ^j-jj- of covenant j and it was held to liinion. Roll.'Ab, be a manifefx erroro /■> '^•A. 151. But 151. But if the writ of dedimus 'pGteJ- chap. IV. totem be tefled on the fame day with '^^"^^-^^ the writ of covenant, the fine v/ill be valid. A writ of error was brought to reverfe ArunJel v. a fine, becaufe the writ of ^c^^/7;?//>f /)o/(?/?^- Aruhdd, tern was teftcd on the fame day with the 67,,' writ of covenant, which was contended to ^{f- J^^- "• be erroneous, becaufe the writ of ^(f^:;«//j r'47- potejiatem recites, that the writ of cove- nant is depending; whereas the writ of covenant could not be faid to be depending until its return. But the Court were of opinion that iWxs was no error, for tlic v/ric of covenant may be faid to be de- pending immediately on the purchafe of it; and if a ftranger fliould buy the lands before the return of the writ of covenanr, it would be champerty. 152. It is the duty of all thofe who are ap- pointed commifTioners in a \\i\x. o^ dedimus potefiateniy to inform themfelves by means of fome people of credit, that liie perfons who acknowledge a fine before tiiem, are really the parties named in the original writ. They fljould alfo be extremely at- tentive in examining whether there be any married woman, infant, idcot or lunatick H % nmontem. Rep. a fine, will avoid the whole fine. 39^- l*oIlc.\f. 164. 168. If a marriea woman levies a fine Co« Rend. 7. ... J . • Perk. 1. 20. executory as xfeiiiejoley and execution is fued againft the hufband and wife, the huf- band may flop the execution of the fine, becaufe no ad of his wife's can prejudice him. And if in a cafe of this kind the huf- band had made default, and his wife v/as re- ceived in his fteaJ, flie might for the benefit of her hufband, prevent the execution of her own fine, but, after the death of her hufi-jand, fhe cannot avoid it. 169. If a woman levies a fine l)y the name of Alary ^ the wife of Thomas StileSy it will be void ; becaufe it appears by the very record itfelf that the cognizor was a married woman. 170. It I SlJeif. izz. Chap. V. lyo. It is agreed that a wife may, with- out her hufband, execute a naked authori- ty, though no fpecial words are ufed to dif- penfe with the difabihty of coverture : but if the legal eftate in lands is vefted in a married woman in truft for another, feme hold that fhe cunnot pafs it to the cejlui que trujl unlefs her hufband joins ; and therefore, that if fhe makes a feoffment, or levies a fine without him, the firft will be w. Jones void, the latter voidable : but others are of i 37. 1 Inlt. 112 a. n. 6. Opinion, that the hufband's joining is not more requifite in this than in the former cafe. 171. The following is the only cafe where a married woman has been allowed to levy a fine without her hufband. Moreau's Upon a motion that Ann MoreaUy wife cafe. Qf _ MoreaUy might levy a fine without 2 Elack.Rep. , , ^ , . ' ,,,,,,, 1205. her hufband, it appeared tnat the lands had been fold by the hufoand, who covenanted that he and his v/ife (when of age) ihould levy a fine. When the wife came of age, fhe refuted to join in itj but it was levied by the hufoand alone, who afterwards v/ent abroad. The wife now confented to levy it, but the huiband was abfent. Ic was faid that 4 JFfne0. that it had been ufual in fuch cafes for the curfitor to make out 3. precipe to the wife as Sifeme/ole -, but no example of it was pro- duced upon the motion. The Court would make no rule to authenticate fuch a fine j but it was afterwards acknowledged de bene ejfe before the Lord Chief Juftice then in court. 172. Coparceners, joint-tenants, and te- Copmanns, nants in common, may levy fines of their j°">f-if>'^>"i^ r Q.- n :\ -c -L l • • and tenants :m rclpeaive Ihares ; and it there be two joint- ccmmon. tenants in fee, and one of them levies a fine * ^^P- 5^- ^• /-,,,,••„ ^ ^''^- 45- of the whole, this will not amount to an j Salk. -u'6. oufter of his companion : but it is a feve- rance of the jointure, though they continue to be in of the old ufe. 173. Perfons outlawed or waved in per- Pirftns out- fonal actions, may alien by fine j for their la%ved,ZJc. cftates ftill remain in them, although they p, 2. {. \x, have forfeited the rents and profits, 174. Having enumerated the perfons „., ,.r ^ 1^0 r // ijg are aif*- who are capable of levying fines, we fhall bled from /#- now examine who are difabled from being V'^/"*^-, cognizors, or conveying by fine. This difability may arifc eirher for want of a fuf- ficicnt efiate in the lands, a competent de- VoL. I. I gr«c "4 Stints- Chap. V. grfc of judgment and underflanding, or ~v^»-^ from being incapacitated by their fituation, or by Ibme pofitivc a&i of Parliament. ffrjons h^v^ lyr. No perfon can levy a fine of lands laj no e/iafe ^ . " freehold in the that Will affeit itrangers, iinlefs he has at laih-^s. ]f a{^ jin eftate of freehold i-n them, either Shep.Tou. , . , , r L T • 14. Weft. by right or by wrong; for otherwile it Symb. p. 2. might be in the power of any t^'o llrangers ^^ to deprive a third perfon of his eftate, by levying a fine' of it ; fo that in every cafe where a fine is levied, and none of the par- ties to fueh fine have any eftate of freehold in the lands whereof the fine is levied, it v/iU only bind the parties themfelves, and their heirs, but may at any time be fet afide by the real owner, by pleading that neither of the parties had an eftate of freehold ia the lands at the time when the fin.e wasle- ^"f'*- vied. 176. A fine levied before entry or re- ceipt of rent, will be void upon the fame principle, LordTownf- Upon a bill filed for a (hare in the New - Atk. -36. River water, the defendants pleaded a fine and non-claim, but it appearing that there was no entry nor receipt of rent until after the the fine was levied, Lord Ihrdwicke faid there was not a fufficient feififi to fupriort the fine. His Lordfhip alio obferved, that the receipt of rent with a continuance of pofrcfTion before the levying the fine, might have been fufficient, becaiife thofe a6ls would fliew quo ammo the fine was levied : fo that if the rents had been received by the defendants before the fine was levied, and continued to be paid to them, it would have been the flrongeft evidence of pof- fcflion. 177. The tenant in pofleffion will not Doe v. Wij, bc allowed as an evidence to prove the I'ams. eflate of a landlord v/ho levies a fine, be- "^^^' ''' caufe he would then be a witnefs to fup- port his own pofTefTion* 178. A perfon having a defeafible right only to lands, may notwithflanding levy a fine of them, which cannot be fet afide by the plea that neither of the parties had an Cllate of freehold in the lands* Sir Michael Jrmin being feifed in fee of Carter v. Baf- the manors of Pickworib and Willoughhy, n"'^'^^""- ^ by his will devifcd, that in cafe his perfon- 13 Via. Ab. i\ eftate, &c. fliould not be fufficient to pay 3 3^^- 1 3 his his debts, then his executors fhould receive the rents and profits of his whole real eftate, and after payment thereof, he devifed the manors o( Pickworlh and IVillcughhy to his uncle Evers Arm'm for life, and in cafe he fhould have ifiue male, then to fuch iflue male and his heirs for ever 3 and in cafe he fhould have no iffue male, he devifed the manor 6{V/illoughhy to his nephew Sir l^ho- mas Barnardifton in fee. Upon the death of Sir Michael Armln^ Evers Arm'in entered upon the premifes devifed to him, and de- vifed them to his grandfon Armin Bulling" hantj and the heirs of his body. Upon th« death o^ Evers Arming Sir 'Thomas Barnar- dijlon entered upon the premifes, claiming the fame by virtue of the remainder limit- ed to him by the will of Sir M, Armin. Armin Bullingham, the devifee of Evers Armin,cntcred upon the manor of IVillough- hy^ claiming title thereto, and put his cattle into fome part of the land, upon which en- fued a replevin, and the fpecial verdid in 3 Lev. 431. and 2 Salk. 224. This fuit was afterwards compromifed between Sir 'Thomas Barnardifion and Armin Bullingham, who both joined in a fine of the manor of Wilicughhy ; but previous to this Sir Tho- mas Barnardijlon had conveyed the premifes by by leafc and releafv; to Sir Samuel Barnar- ^^^^^ ' dijlcn in mortgage. It was contended that this fine was void, as neither of the parties had an eftace of freehold in the lands ; but the Lord Chan- cellor held, " that in this cafe it could not " be faid that -partes finis nihil habuerunty " becaufe Armin Bullingham, on the death " of Ei:ers Armin, and as his devifee, had a " right againfl all perfons whomfoever ^but " the heir of Sir Michael Armin the teftator, " and Barnardijlon, entering upon him as a " difleifor j and though Barnardi,(lon after- " wards mortgaged the premifes in fee, " yet he continuing in ponfefTion thereof, " and joining with Bullingham in the fine, " it could not be faid thzt paries finis nihil " habuerunty when one of them, viz. Bar- " nardiftoHy had the pofTefTion, and the other " of them, I'iz. Bullingham, had the right *' to the land againft RarnardifioUf and alfo " againft his mortgagee." 179. If a perfon vvho is only poflfelTed of 3 ^^f lands for a term of years, or who holds them by a ftatute merchant, ftatute ftaple, or writ o( elegit, or is tenant at will, levies a line, it will have no effect whatever as to I 3 ftrangers :--:;.b fines?. Grangers, bccaufe the cognizor has no eftatc of freehold. Co. Cop. f. 1 80. It follows from the fame principle, ^^' that if a copyholder levies a fine of his copyhold, it is void, becaiife the freehold is in the Lord. I ln(l.337.a. i8r. The only mode by which a tenant for years or a copyholder can levy a fine, fo as to give it any force, is by firft making a feoffinenf, by which means he acquires a Vtde Recove- freehold by difleifin. This dodrine has however been lately queflioned. rhcs 182. There are two cafes in which a fine is allowed to operate, although the parties have no eftate of freehold in the lands. The firft is where a cejlui que trufi levies a fine of his truft eftate, of which the reafon will be given in afubfequentpart of Ante f. ^9. this work. And the fecond is when a fine 3 Rep. 29. b. is levied by a vouchee to the demandant, or from a demandant to a vouchee, which is allowed, becaufe in law the vouchee is fuppofed to be tenant of the land, though in fad he never is fo at prefenr, 183. The fi'nC!!?. no 183. The averment quod ptirlesf.nis nihil Cliap. V. habuerunt cannot be made by a perfon claiming as heir to the cognizor of a f.ne, and making his title to him or through him. But where a perfon makes mention of any of his anceftors, in the courfe of his pedigree only, and not as one from whom lie claims, he is not barred by his fine, buc imay aver quod partes finis nihil habuerunt. IVilliam Rogers^ an idiot, being feifcd of EJwr.rdsv, a reverfion fee, Andrew Rcpers, his uncle, ^S^J^, ro, ' d> ' > Car. 524. levied a fine of the lands with proclama- 5+3- « V>n% tions to a ftranger, and died in the life-time V^' "^ / ' <-■ Jones, 450. of his nephew: upon the death of the idiot without illue, the grandfon q( Andrew Ro^ gers entered and claimed the lands as heir at law to the idiot j and the qiieftion wa5, whether he was barred by the fine of his grandfather. Croke and Berkeley were of opinion, that as the Lmds never defcenutd on Andrew Rogers, his grandfon was not barred by hi? fine, but might aver quoJ par- ies finis nihil habuerunty for he claimed no- thing from him, but only mentioned him in the cuurle of his pedigree. 184. An alien not being capable of hold- .m,;.:. ij]g land?, ought not to be permitted to i3Vin. .Air I 4 levy ''^' levy a fine : but if he does levy a fine, it will not conclude the king after office found. Per/ens vjaat- 1 85. Al! thofc vvho from a deficiency of ^^'ij- SJ"-"^ iudement or underftandinp; are incaoable ahd under- J ^ d t" f.undhig. by law ofcontracfling, are likcwife incapa- loR^^ 2 b ^^^ of being cognizors in a fine : but with refpefl to perfons of this defcription, it will be proper to prerrife one cbfervation, that whatever legal defedls may be in the cog- nizor, if the judges or commiffioners once admin him to levy a fine, fuch fine will for ever afterwards be as valid and effedual as if the cognizor was not under any legal dif- abilities, except in the cafe of an infant; although the judges or commiiTioners omit a very neceflary part of their duty, in per- mitting fiach perfons to Xtyj a fine. Ante f. t-]. This rule arifes from a principle which -Hob. 224. , , • J • .• c has been mentioned in a preceding part or this work, that no averment can be madc^ againft any fadl which is once upon record, and as the admiffion of a perfon to levy a fine fuppofes him to be ixz^ from all legal defefts and difabilities, (for the law will never prefume that the judges under whofe infpedion the fine was levied, would allow it it to pafs, unlefs the parties were capable Chap. V. -of levying it) J therefore, although the faft ' • ' fhould be otherwifs, yet no averment can ever afterwards be admitted to the con- trary. ■ iS6. By the common law, infants, or hf^nts. perfons under the age of 21 years, are in- ^^'"' '^^• 3 "7* capable of binding themfelves by any con- tradl, which may turn to their prejudice, on account of their fuppofed want of judg- ment and difcretion at that period ; in con- fcquence of this principle, an infant is inca- pable of being cognizor in a fine ; but if an infant is permitted to levy a fine, and that fine is not reverfed during his minority, it muft for ever afterwards ftand good (a). 3 Keb. 480. p. i3. (^) In the rolls of Parliament 50 Ed. 3. No. 127. vol. 2. p. 342. there is a petition from the Commons, complaining ©f the very great hardfliip of not permit- ting a perfon who had levied a fine when an iafant to reverfe it after he attained his full age, and praying that every perfon who had levied a fine during his in- fancy, (hould be allowed a certain time, fuch as two years after he attained his full age, to reverfe it ; to which the King anfwered, that he would confider againfl: the next Parliament, whether it v^euld be pro- per to alter the old law ia this point or not. The 122 ifinc]^. Chap. V. The reafon that an infant is retrained '"■~*^' — ' from reverfing a fine levied by hinn, un- lefs it is done during his minority, is, be- caufe that faft can only be tried by an in- fpedion of his perfon in open court. I In ft. 131. ^^^ teft'mm tejiimomoy non jurat or um ve- a.. 380. b. rediHoy Jed judicis infpeBione Jolummodo. S2 ep. 123. ^j^.^ mode of trial is adopted, becaufe every judicial adl fhall be intended to have been rightly done, until the con- trary appears; and therefore it is fitter that the propriety of fuch an ad fliould be tried by the court, than by a jury. 187. In cafes of this kind a writ ifiues § Rep. 31, to 5^he fherifF, commanding him to con- ftrain the party to appear, that it may be afcertained by the infpedion of his perfon, whether he be of full age or not ; ut per afpeHum corporis Jui confiare poterit^ j^fi'i- c'lariis nojlrisy ft pr adieus A. fit plena 4Etatis necne. t Roll. Abr. 573- The Judges may alfo examine the in- fant upon an oath of voir dire, or any of his parent?, and inform themfelves by means of church books, or any other kind of evidence, if there fhould ftill remain a doubt refpeding the age of the party. ii;8. The iS8. The peculiar privilege thus given to infants, of averring againO: a record during their infancy, is probably owing to this caufe. The Judges or Commiirioners who take the acknowledgnnent of fines, are fuppofed to infpedt the age of all thofe who acknowledge a fine before them, purfuant to the direcSlions in the ftatute de modo levandi fines j and if, after fuch infpec- tion, they are permitted to levy a fine, it is prefumed they are of fufficient age ; and 3AtIv. 711. the infant therefore cannot in that Court aver his difability : but if upon a writ of error brought in a fuperior Court he is infpecfted, and found not to be of full ag«.', the fine may be reverfedj becaufe the public infpedion of an infant by the Judges in a Court of Record, is of equal noto- riety and authenticity with a former re- cord of the infant's having levied a fine, (which fuppofcs him to be of full age); and therefore, as both fadls are recorded, and contradift one another, the latter fa(5t will orevail. If infancy were permitted to be tried 12 Rep. 122. by any other mode than the perfonal in- fpedion of the infant in a Court of Re- cord, averments might be made many years years after a fine had been levied, that the pcrfon who acknowledged it was an infant at the time, by which means records might be avoided by bare averments, which v/ould be produ6tive of the grcateft confufion. ilnll. 131. 189. If the perfon of an infant be in- Td "80 fpe<5led by the Judges, and it is once re- b. corded that he is within age, although the Keckwith's j^^^j^j. ^^^Q^j^ ^^^g-jj^ j^-g f^_jjj ^j. jjg cafe, _ ^ ' Moore 844. before the fine is reverfed, yet he or his heirs may reverfe it, at any time af- terwards. Sarah Grif- An infant acknov/ledged a fine, and the fith'scafe, cognizee omitted to get it ingrofled until 12 Mod. 444. j.|^g infant fhould attain his full age, in order to prevent him from bringing a writ of errorj the Court upon a view of the cognizance produced by the infant, and upon his prayer to be infpefted, and to have his non-age recorded, infpeded him and recorded his infancy, in order to give him the benefit of his writ of error; which he mud otherwife have loft, as his non-age determined before the next term. 4 The iFinc0. The principles here laid down refpeft- ing fines levitd by infants are confirmed by the following cafes : Ann Hungate's cafe, 12 Rep. 12 2. V/arJcomh v. Carrelly idem iiii,. Dyer 220. Herbert Parrot^ s cafe, 2 Vent. 30. I Mod. 2^6. Ilutchinjons cafe, 3 Lev. 2^. Sherlock'' s cafe. Sty 457, Confines cafe, i Vent. 69. Requijhe v. i?^- quijhe^ Biilft. p. 2. 320. And Poyntz's cafe, Cro. J'df, 230. 190. By the flatute 7 /^;?«. c. 19. it is Infant ti-af- cna6ted, that it fhall and may be lawful '^^^ "^^y i'^-'^y to and for any perfon under the age of 21 years, by the direftion of the Court of Chancery or Exchequer, on the petition of the perfons fgr whom fuch infants fhall be feifed or pofiefTed in truft, to convey 3 Atk. 164. and aPure any fuch lands, tenements or hereditaments in fuch manner as the faid Courts fhall direfl. 191. Upon a petition in Chancery Ex parte prayino; that an infant, the heir of a mort- ^^"■,^' r 3 Atk. 479. gagee in fee, who was likewife a feme Com. Rep. covert, might convey by fine under this 5- ftatute, the JMafter reporting it neceflary: Lord Chancellor Hard'UJtcke faid, this queilion came before him foon after he had had the feals, and that he confuked with Lord Chief Baron ComynSj who thought yj*^^ 3 P* the Court m!o:ht order an infant who was a Wms. 387. ° feme covert to levy a fine: for the a(ft is general, that all perfons under age fliall convey and aflurej and that as a feme co- vert of full age could not afiure but by fine, the Court may dired an infant to lombev. convey in the fame manners and an or- Lombe, dcf was made accordingly. Barnes 217. S. f 192. By the flat. 4 Geo. III. c. 16. it is enafled, that it fhall and may be lawful for any infants having eftates in lands, tenements or hereditaments, within the duchy of Lancajiery or the counties Pala- tine of CheJleVi Lancajier and Durham, or in the principality o( IFales, by the direc- tion of the Court of the Duchy Chamber g( Lancajier , of the Court of Exchequer of the county Palatine of Chefter, of the Court of Chancery of the county Palatine o{ Lancajier, of the Court of Chancery of the county Palatine of Durham, and of the feveral Courts of the Great SefTions in Wales refpeftivcly, to convey and afTurc any fuch lands, tenements or heredita- ments, in fuch manner as the faid feveral Courts fhall dirfd. 193. Idiots, fine?. 11? 193. Idiots, lunaticksj and generally Chap. V. all perfons of non-fane nnennoryj are inca- *^ " ' pable of levying fines ; and the ftatute cie „^J/^.^^^ '^ mo^o levandi fines exprefsly direfls, that perfons of this defcription fhall not be per- mitted to acknowledge a fine: but ftill, if the Judges or ConrimifTioners allow them to levy a fine, it can never afterwards be reverfed by any averment that the cogni- zors laboured under anyofthofe difabili- 4 Rep. 124. ties, becaufe the record and judgment of the Court being the highell evidence in the law, the cognizors mud be prefumed to have been capable of contra6ling at the time, and therefore no averment can be admitted to the contrary: and it is faid that even a declaration of the ufes of a fine by an idiot or lunatick will be good, 194. One Henry Bujhley^ a monftrous 12 Rep. 124, and deformed cripple and idiot, was taken from his guardian, and carried to a place unknown, where he was kept in fecrer, until he had acknowledged a fine of his lands before Juftice Soiithcot, to one Bo- ihomej and had declared the ufe of the fine to Bothome and his heirs. Henry Chap. V. Hefiry Bujhley was afterwards found by ^-""^^^ inquifition to have been an idiot, a nati- i-itatey and upon an adlion brought by a perfon who claimed under Bothomej the idiot was fent out of the Court of Wards upon a man's flioulders, to be (hewn to the Judges of the Court of Common Pleas. Lord Chief Juftice Dyer faid, that the judge who took the fine was not worthy to take another: but notwithilanding this, and although the monitrous deformity and ideocy of Bujhley was apparent and vifible, yet the fine Hood good. It was moved as a doubt in the Court of Wards, whether this fine lliould not enure to the ufe of the idiot and his heirs; for although it was agreed, that the fine, being of record, bound the idiot, yet it was contended, that the deed executed by the idiot, was not fufficient to dired the ufes of the fine; but it was refolved, " That for as much as he was enabled by " the fine as to the principal, he fiiould 2 Rep. 58. ». 97. Corporations aggregate cannot le- Co. Read. 7. vy ftne's ; becayfe, as they are invifible bo- dies, they can only appear by attorney: whereas the Hat. de modo Icvandi fines re- quires that the parties to a fine (hall appear perlonally before the Judges. But Srr Edward Coke fays, that a fole corporation jfiiay acknowledge a fine. 198. There are fome perfons who arc reftrained from levying fines among other modes of alienation by particular llatutes. Wunenfcifid ' Thus, by the fiatutes 11 Ihn. 7. c. 10, o/jointurcs. ^^^ ^2 ij^.^^ g.^ ^^ .,3^ women fciied of join-r tures tures or cflates tail of the gift of their huf- binds ; and hufbands fe'ifcd jure uxor is y are prohibited from levying fines of fuch cftaces. An account of thefe ftatutes, and of the feveral trafes which have been deci- ded on thenn, will be given in Recoveries, 1 99. All ecclefiafticks felfed in right of Ecclefiaftich their churches, as archbilhops, bilhops, f"/^'^ j^^s ec- deans and chapters, mailers and fellows of colleges, &c. are reftrained by a variety of i Eliz. c* 19. ftatutes from alienating their church lands, ^' 5* ,. . * ' i3Eh2.c.io. for any longer time than for three lives, or twenty-one years, in confequence of which they are by implication prohibited from levying fines. 200. With refpea to the perfons who what perfoiu are capable of being cognizees, and of tak- ^v take land: ing any eftate by fine, it will be fufficient to shep?Tou.7, Obferve, that all thofe who are enabled by the common law to take by way of grant, may alfo take an cilate by fine, as infants, married women, corporation,s fole or aggre- gate (for an eftate may be taken in a fine by attorney) j or any other perfon, except thofe who are confidered in law as civilly dead. K 2 ifineis. CHAPTER VI. Of what Things a Fine may be levied. 3Vin. Ab. ioi. A FiNE may be levied of every Ca'Read.jf. -^ fpecies of real property, as of an honor, manor, barony, leet, mefluage, dove-houfe, garden, orchard, land, mea- dow, pafture, wood, underwood, fifliing, warren, fair, toll, waifs, cftrays, common, '&c. And in general it may be laid down as a certain rule, that a fine may be levied of every thing v/hcreof a/r^a/)^ quodredda$ QY facial lies. Jdcm. There are even Tome things whereof a fine may be levied, although a p'cecipe qucd reddat cannot be brought for them, as an office, for which neither 2t precipe nor an affile lies, but only a quod permit tat. f Rep. 145. 202. A fine may be levied of an advow- ^* ' * ■ ' fun in STofs, or x'lsht of prefentation to an y. 2, 24:2. . ecclefiaftical benefice, of which there are a variety of inftances in the books. acj. A Ifueisf. -203. A fine tnay be levied of a chief rent, a rent charge, or any other rent which „, .„ ° ' Shep. fou. IS aftually ;';/ e/fe; but a fine cannot be Ic- n. vied of an annuity to a man and his heirs, * ^^"- '°^* becaufe it is only a perfonal inheritance, 204. A fine may be levied of any thing that lies in prender, provided it can be af- certained with fufficient accuracy j but of things uncertain, fuch as a common without number, a fine cannot be levied, 205. As fines may be levied of every shep. To^. kind of real eftates in pofTelTion, fo they ^3» may alfo be levied of all lands, tenements, or hereditaments, to which the parties are intitled in remainder or reverfion. 206. A fine may be levied of an undi- Moor 250. vided part of a manor, mefluage, or other 3 R^p. 88. real eflate, as well as of the whole, and the ,2!^' writ muft be for an undivided moiety, third or fourth part of, &:c. &c. But if an entire thing, as a manor or mefluage, be parted, as if the manor o( S, be divided into two parts (if the divifion be fo made that the manor of that part be not extinft) and a ffnc is levied of a part of it, it muft pafs by K 3 the ifineief. the name of the whole, as de manerlo de S^ cum ■pertinentiis, ao7c At the dlfTolution of monafteries by Hen. 8. the appropriations of the feve- Val reftories, parfonages, and other ecclefi- ^ftieal benefices, which belonged to the reli- gious houfes, became vefted in the king, who granted them to lay perfons : and in order to enable fuch perfons to exercife every aft of dominion over their new ac- quifitions, it was enafted by the ftatute 32 fl^, 8. c. 7./. 7. that in all cafes where any perfon or perfons Ihould have any eftatc or interefl: in any parfonage, vicarage, por- tion, penfion, tithes, oblations, or other ec- clefiaftical or fpiritual profit which Ihould come into temporal hands and lay ufes, they Ihould have the fame remedies as for other lands and tenements ^ " And that writs of ^* covenants and other writ? of fines to be ** levied, and all other alTurances to be had, •^ made or conveyed of any parfonage, vicar- ^' age, portion, penfion, or other profit called *' ecclefiaftical or fpiritual, as is aforefaid, *' fhould be thereafter devifed and granted ** in Chancery according as had been ufed *' for fines to be levied and affurances to be ?' had or made;, or conveyed, of lands, tc- ** nements, *^ nements, or other heredlcaments ; and " chat all judgments to be given upon any "of the faid writs original, fo to be devifed V or granted, of or for any of the premifTes, " or any of thenn, and all fines to be levied " and acknowledged in any of the king's " faid courts thereof, Ihould be of like *' force and effedl in law, to all intents and " purpofes, as judgments given, and fines " levied of lands, tenements and heredica- " ments in the fame courts, upon writs ori- " ginal therefore duly purfued and profe- " cuted: albeit no fuch form of writs ori- " ginal out of the faid Court of Chancery *' had theretofore proceeded or been a- « warded." 208. A fine may be and is ufually levl- 2 P.W. 12*. ed of New River fhares, by the defcription of fo much land covered with water j and whenever a fine is neceflary to be levied of fuch lliares, as the New River runs through three counties, Hertford^ M'lddleJeXy and London^ there muft be three feveral fines for each of thofe fhares, one being neceffa- ry for each county, 209. It has long been eftablillied in equi- ^ ^- "^'- ^ 3«- ty, that where a fum of money is covenant- K4 * ed ed or dire<^ed to be laid out In the purchafe of land, fuch money is confidercd as land ; but flill a fine cannot be levied of it until it is actually laid out in the purchafe of land. B^y-what der- nio. With refpeft to the defcriptions jc^rtphons. which are necefiary to be ufed in a writ of covenant, of thofe things whereof fines are levied, they fhould be the fame as thofe which are ufed in a pracipe quod reddat, in an adverfary writ : but a fine being now confidered as a common aflurancc or con- veyance by confent, it is conftrued more favorably than a judgment. J3 Vin. Ab. 2i i, An honor may pafs by the name Co Read 12. ^^ ^ manor, or by its proper name, as de honore de T. or de inanerio de T". and where a manor is demanded, it is fufficient to de- fcribe it by its name, without mentioning the town wherein it lies, for it may be out of any town, or extend into feveral townJi, ^eft. Symb. 212. Where a manor extends into feve- '' ^7" ral towns, as A. B, and C, it is good to exprefs all or nonej for if any one of the towns be omitted; it is faid, no part of the iiianor fituated in that town will pafs ; al- though Ab. 281. though a fine of the manor with the appur- tenances would have carried the whole manor. 213. It was formerly held that where a Mallettv; fine was levied of a manor^, nothing but a ^^"jj' g'^'^^j real manor would pafs, and not a reputed 524. 707. manor. But it has long fince been agreed ^^'^^•fR^p'' that a manor in reputation only will pafs in 63. 13 Vin. a fine by the word manor; and that when a fine is levied of a manor with its appur- tenances, lands reputed to be parcel of the manor will pafs. 214. If a perfon has two manors which Gllb.Ev. 38, are both known by the name of Dale, and ^^} ' ' ' •' hd. 1790. p. he levies a fine of the manor of Dale gene- 297, rally, circumftances may be given in evi- dence to prove which manor was intended to pafs by the fine. 215. Parfonages, reftories, advowfons, shep. Toift vicarages, or tithes impropriate, do not pafs i** by the words " the advowfon of the church of S." but by the words " the re6lory of the church of S. with the appurtenances ;" for the word reCfory, comprehends the parifli church, ffiiegf. church, with all its rights, glebes, tithes, and other profits whatfoever {a). Idem. When a fine is levied of a right of pre- fentation to a church only, the words are ** of the advowfon of the church of S,'' and not " with the appurtenances :" of all vica- rages endowed the writ mufl be " of the advowfon of the vicarage of S." and not ** with the appurtenances j'* and where no vicarage is endowed, it muft pafs under thefe words, " The advowfon of the church of s:' Shcv.T.iz. 216. Land ought to be demanded by the certain meafure of its quantity, according ro the ufual mode by which it is meafured, as an acre, oxgang, hide, rood, &c. and by the names which are ufually given to the different fpecies of land, as arable, meadow, pafture, Sec, Waddyv. 2 1 J. Where a fine was levied of a cer- ^Icvvton. ^^jj^ number of acres of land, it became a B Mod. 276. (a) Refitria pro iniegra ecckjia parechiali cum omni- hui fuii juribus, prtedils, decimis^ aliifque fronjcntuum fpeciebus ; alias i:ulgo di^um beneficium, Spelman C/lo/r, Voce Redoria. queftion queftion "whether the acres were to be con- fidercd as cuftomary acres, or according to the ftatute de terris menfurandis ; nor does it appear how the cafe was determined j Sir J. Bruyn's but Sir Ed-ivard Coke mentions a cafe where '^^^' ^-^ ^^ it was adjudged that in a common recovery of a certain number of acres of land, thejr fliould be eftimated according to the cuf- tomary and ufual meafure of the country, and not according to the flatute de terris menfiirandis, 218. The particular vill or hamlet, pa- rifh, town and country in which the lands lie, ought to be mentioned in the fiiae : ajid formerly if a fine was levied of lands lying in two vills, and one of the vills only was mentioned in the writ, the lands lying in the other vill would not pafs. 21 g. Upon a fpecial verdi(5l it appeared Stork v. Pox. ■^ ^ ^ J Cio. Ja. 120; that there were two vills, fValion and Street, in the parifh o( Strcety a fine was levied of certain lands in Street j and whether the lands in Walton palled by that fine was the queftion. It was adjudged that they did not pafs, for Street being a diftindl vill, and fo found by the verdift, although the parith of Stre.et comprehended them both, yet the lands lands in Walton were not comprlfed in the fine. But if the fine had been levied of lands in the parilh of Street^ then all had well palTed. 220. A fine may be levied of a clofe by a known name, without mentioning the vill or hamlet in which it lies. Monkv.But- In trefpafs the queftion was, whether a ler. Cro. Jac. ^^^ might be levied of a clofe by a known ' name in a vill, without mentioning the vill or hamlet in which it lay ? And adjudged that the fine was good enough j for it was but the agreement of the parties ; which, being recorded, although there was neither vill nor hamlet mentioned wherein it lay, v>as good enough. And notwithftanding it was objefted that a precipe ought to be in a village or hamlet, or place known out of a village or hannlet, as appeared by all pleadings, for if the place known be within a vill or hamlet, the precipe ought to be brought accordingly: yet it was anfwered, that this was true in a precipe or other writ to which the defendant was to anfwer, but this being but a concord and agreement of the parties, and no exception taken, but the fine drav/n and pafled, it was good. 221. It ffncj$. ui 221. It was found by fpcclal verdi6l. Chap. VI. that John Eajlon being tenant in tail of a p^^vdey v. certain mefiuage and lands called Eajion's, Karton. Cro. lying in Bijhofs Morchard, levied a fine ^.^\ '' thereof by the name of a melTuage and 200 acres of land, 50 acres, &c. in EJfington Eajlon and Chilfordj to the ufe of him and his heirs ; and that there was not any vill, or hamlet, or place, known by the name of the mefluage or tenement called EaJlon^%y out of the vills or hamlets ; and that none of the faid tenements were in EJfington or Chiljord. The queftion was, whether upon this matter found, a fine levied of lands in places known in a vill, not mentioning the vill or hamlet where the lands are, was good ? All the Judges delivered their opinions Jeriatimt that the fine was good. 111, If a fine be levied of lands in A, and the party hath alfo lands in B, yet if the conftable of A. is alfo conftable of B. all the lands fliall pafs ; for in fuch cafe both places conftitute the fame vill. iFflte0; upon a fpeclal verdi<5b It appeared that Waidron^v. ^ ^"^ ^^^ '^^^^ levied of all the cognifor's Rofcarriot. land in A. and that he had lands in B. That I Vent "170 ^ tithing-man was appointed in B. but that the conftables of A. cxercifed their autho- rity not only in A. but alfo in B» Haky Ch. J. " It is true one parifh " may contain three vills : the parifh of " A. may contain the vills of /f. B. and C. *' that is, when there are diftinfl conftables *' in every one of them : but if the confta- *' ble of A. doth run through the whole, " then is the whole but one vill in law; or ** where there is a tithing-man, it may be " a vill : but if the conftable rtjn through *' the tithing, then it is all one vill. I know *^ where three or four thoufand pounds a *x* year hath been enjoyed by a fine levied " of land in the vill of y^. in which are five " feveral hamlets, in which are tithings ; " but the conftable of A. runs through them <' all, and upon that it was held good for all. ** Here was a cafe of the conftable o( Bland" *' ford Foriwiy wherein it was held, that if ** he had a concurrent jurifdiclion with all " the reft of the conftables, the fine would " have pafted the lands in all : in fome " places " places they have tithing-mcn, and no Chap. VI. *« conftables." v-^-ir-^ 2 21. The word tenement Is not a fufB- Stud and , ^ . . r I • 1 r Courtney's cient delcnption or any thing whereof a ^afe, fine is levied, for a tenenaent may confift ^ Leon. i88. of a meflliage, land, meadow, or any other thing which lies in tenure. And there is an inftance where a fine levied of two te- nements was reverfed by writ of error. 224. When a fine and recovery are of a ^3 "^^in* Ab. certain number of acres in Daky it is faid that the party interefted fliall have his elec- tion where and in what parts of the eftate the fine and recovery fliall operate. 225, It is alfo faid that the deed by 1 Brown Ca. which the ufes of a fine and recovery are g.-ton v. declared, is the meafure by which juries Eyton. TifLially go in afcertaining the defcription of the ellates whereof a fine is levied ; and that courts of juflice have frequently dire<5led the defcription of l^nds in a fine to be amended, in conformity to the deed of ufes. Bur a fine will not pafs a greater number of acres rhan are contained in the writ and Jcnk. 254. concord, although the ^^&d of ufes men- tions more. 2-6. A I 226. A fine does not afcertain, but only comprifes the lands whereof it is levied ; fo that it is in all cafes extremely proper to have a declaration of ufes, that the pre- cife lands comprehended in the fine, and intended to pafs by it, may be afcertained. 2Atk. 241. 227. There are frequent inftances of tenants in fee-fimple, who, in levying fines, infert more parcels of land than do actual- ly belong to them : in which cafes Lord Bardwicke fays, a Court of Equity will re- ftrain the operation of the fine, to fuch lands only as do really belong to the par- tics. CHAPTER VII. Of the Amendment of Fines. 228. TT^INES being now confidered J? as comnnon aflurances made with the confent of the parties, the Court of Common Pleas has frequently permitted them to be amended, where any palpable millake or mifprifion has been made by the officers of the court, in the entry of the king's filver, the proclam.ations, or thede- Icription of the lands. 229. The Judges have even in fome in- ftances diredled the original writ upon which a fine has been levied to be amend- ed j but the propriety of fuch amendments feems, from fome modern determinations, to be extremely doubtful. A writ of error was brought to reverfe Gage's cafe, a fine; and the error afllgned was, that the ^ ^P-45- • writ of covenant bore tejte the 24th ofjprily returnable qiii}jd. P^fch. which was the 15th of yJpril i fo that the return was before the iejle. It was refolved by the whole Court, Vol. I. L thac iffnesf. that the writ (hould be amended, becayfe fines were nothing more than common affurances, entered into with the mutual confent of the parties. This cafe, however, is faid to be totally mif-reported j and the dodtrine here laid down, that an original writ may be amend- ed, has been contradided by the following, determination. Lord Pem- 230. Lord Pembroke petitioned the Houfe brokev.Lord f j^^^^jg f^^ ^ bin ^^ fec afide an amend- Jeitnes. 1 Salk. 52. ment made in a fine and recovery, by the Iiok'59."'^* Court of Great Seffions in IFales. It waS referred to the Judges, whether the fine and recovery were amendable in thofe particulars in which they had been amend- ed, and whecfier fuch amendments were warranted by law. One of the amend- ments was in the original writ, which had been teded fix months after the dgdimus for the caption. Lord Chief Juftice i/^/^ certified the opinion of the Judges to be, that the writ of covenant being an original writ, was not amendable, either by the common law, or by any ftatute. That neither the 14th Edw. 3. nor the 8th Heii. 6. warranted fuch an amendment. That That as to this purpofc, there was no dif- ference between adverfary adions and ami- cable ones J for no Court could amend a miftake in a deed, which was as much a common aflurance as a fine or recovery, and that Gage\ cafe was mif-reported and was not law. In Lord Raymond'' s Reports, vol. 2. 1066. it is faid by Mr. Juftice Powell^ that the tejie of an original writ was not amendable j that it was fo refolved by the Houfe of Lords, with the concurrent opi- nion of all the Judges, upon confideration of Gage\ cafe, in the cafe of Lord Jeffries, and a judgment given in Wales upon the authority of that cafe was reverfedj and upon that occafion the record of Gage's cafe was fearched for, and found not to warrant the report. And Ho/ty Ch. J, faid, that the record of Gage's cafe is in Coke's Entries, tit. Error, p. 9. 150. where the judgment of the Court is contrary to the report; for the writ was not amended, but the fine was reverfed. 23!. In a late cafe, the Court of Com- Llndfay v. mon Pleas refufed to amend the return of dI^'i n 2 Black. Rej>, a writ of covenant on which a fine had 1013. L 2 been filter. been levied, becaufe the deed of ufes w^s'' fufpicious, the fine having been taken from a dying woman. But Sir William Blackjlone oblerves, that the Court gave no opinion as to the propriety of fuch an amendment in a fair cafe. 232. A miftake in the entry of the king's filver will be allowed to be amended. Bohan's cafe, Hufband and wife beingicifed of the 5 Rep. 43. manor of Etnpcles, levied a fine thereof by the name of the manor q^ Em poles y and of a great number of acres of land, mea- dow, iSc. according to the common form of fines J and the manor and tenements were valued at 20 marks per annumj fo that the fine in the Hanaper was i /. 6s. %d, and therefore the king's filver or poll fine, amounted to 40 s. The clerk made the entry of the king's filver in this form; 'P^ich. Bohun dat domina regin^ 40 j. prs iicenlia concordandij ^€. in placito conven- tionis of fo many acres of lands, meadow, i^c. omitting the m^anor : and error being affigned on this point, becaufe the king's filver was not m.entioned to be paid, as well for the manor as for the other tene- iT.ents, it v,'as refolved by ail the Judges., that Jfinc0. that the roll of the entry of the king's fil- ver (hould be amended according to the writ of covenant J the note, the foot, and the certificate of the Judges in thefe words; tie manore de Rmpohsj cu?7t perti- rientiis ac, i^c. which were omitted thro* the negligence of the clerk, for it appear- ed that the whole fum was paid, as well for the manor as for the refidue of the te- nements; fo that no prejudice was done to the queen. o.22> The proclamations in a fine may alfo be amended, even after a writ of er- ror has been brought, in which a defeft in the proclamations is afTigned for error. I'hus the proclamations which were in- Bowling's dorfed on the foot of the fine were, pend- ' 5 ^^P* 44- ing a writ of error, allowed to be amend- ed, according to the proclamations on the note of the fine remaining with the chiro- Down's cafe, grapher. And, in another cafe, the pro- ^^'■■"'" clamations of a fine were allowed to be amended, after a writ of error had been brought, in which that circumftance was aHigned for error. L 3 234. So 122 t^o ITineicf. ChiD. VII. 234« So where a miftake had been made ^ ">'"*-' in the third proclamation on the foot of J^^ '^ ^ the fine, and the fourth proclamation was 13 Rep, 34. altogether left out; but it appearing that the proclamations upon the record re- ma.ining with the chirographer, and in the book of the chirographer were properly made, it wls adi^dged that the errors in the proclamations fhould be amended. Strllley's 235. In the fame manner, where a fine cafe, Hut. ^^5 levied in Mich. 1 1 Eliz, and the pro- clamations indorfed by the chirographer, were right. But in the note of the fine de- livered to the Cuftos Brevium, the fecond proclamation appeared to have been made on the 20th o( Mayy where it Ihould have been the 23d of May. The Court held that it Ihould be amended; for the en- grofTment upon the fine by the chiro- grapher is the foundation, which being right, is a fufHcient warrant to amend the other, though the Court held it a good fine without any amendment. 236. The defcription of the lands in- tended to be comprifed in a fine is fre- quently erroneous; but in fuch cafes whenevet Jrine«3. whenever the defcription is contrary to the intention of the parties, it will be amended, provided fuch intention appear from the deed to lead the ufes of the fine, or any o-ther fufficient circumftances. 237. Serjeant Pemh^rton moved to i Ld. Raym, amend a fine which was levied of the ^°^* manor of Ighfield^ where the deed which declared the ufes was of the manor of Ightfield, which was the true name, and it was amended. 238. It appeared to the Court, after Tregarev. the examination of the plaintiff and defor- S^"'a'^* ciant, the infpeaion of a fine levied be- ziS. tween the parties, and the indenture de- claring the ufes of the fine, that by the omifTion or mifprifion of the clerk who made and ingrofTed the praecipe and con- cord of the faid fine, he fuppofed the faid tenements to }ie among others in the pa- rilh of LanceJlGu, when in fad there was BO fuch parifh within the whole county of Cornwall -y but it ought to have been in the parifh of St. Stephen's near Lancefton. It was ordered by the Court that as well the praecipe and writ of covenant, as all entries and records of the faid fine Ihould L4 be be amended and rectified, by putting in the words Si. Stephen's near, as, by law, it ought to be done. Walker v. i^g. So where a motion was made to Okenden, amend a fine, by inferting the word PFoortb, Praa. 52. and, on {hewing caufc, the rule was made abfolute for the amendment, although it was objeded, that the heirs at law would be prejudiced by the amendment. But the Court faid they could not take notice whether it would be prejudicial to the heirs at law or not, as it was the duty of the Court to make the fine agreeable to the deed of ufes, and to the intention of the parties. Forfterv. 240. Two fines of lands in the illand of Polliogton, 'Jntinia were ordered to be amended, upon hearing counfel for the cognizee and the heirs at law of the cognizors, who had brought writs of error to reverfc the fines. The lands were defcribed in the writs, £ffr. In infula de Antegoa in America in fartibus tranfmarinisy "Jtz. in parochia SanUa Marite Jjlington in comm, Midd. The amendment was by ftriking out the words in America in ■partihus irar.Jmarinis. Articles of agree- ment betv/een'the parties to the fines, to convey Convey ar>d afTure the lands in the ifland of /Ivtiguay were read, and per curiain, the repugnancy infcrted merely through want of Ikill, and which would vitiate the fines, rnufl: be rejedied, and the fines made ef- feflual, that is, in common form, if they be then infufficienr, advantage may be taken thereof. 24T. A fine levied in i Geo, I. was or- daghill v, dered to be amended according to the '^""^"' ° Larncs 24. deed of ufes, by ftriking out the word -pa- rochiay and inferting the word parachiis ; and alfo by inferring the words et Melb- merby. And in Pafch. 10 Geo. III. a fine Bohoun v, levied in the rei^-n of queen ylnne was i^^rton, ^ ^ 3 Wiir. Rep. amended by a deed of fettlement upon js. marriage, by altering the name of a parifh in the fine, from Coxley to Cor ley ; upon reading the deed, the indenture of the fine, and an affidavit, that there was no fuch parifh as Coxley in the county where the lands lay, 242. The Court of Common Pleas will Powell v. not however, allow the number of acres nf"*! i> 2 Black. Rep. inferted in a fine to be increafed where the 1:02. deed of ufes is general, and the fine is le- vied by a huiband and wife. On 154 iTincjs?. Chap, vrt. On a motion to amend a fine by Increaf- ing the number of acres, the deed of ufes being general, and the intent only proved by affidavit. Lord Chief J uftice De Grey obferved, that amendments antiently were only of errors in the procefs of fines, or millakes in the defcription of the premifes; and thefe were amended by other parts of the fame record : but the amendment then requefted varied the extent of the premifes from 50 to 84 acres. This, indeed, might be done upon principle, provided it was intended by the parties: but what was the evidence of that intent ? The deed to lead the ufes could not be legal evi- dence of the wife's intent, becaufe flie was not examined as to the deed, as fhe was to the fine, and fo there was nothing to amend by. 243. Although the Court of Common Pleas will amend a fine in matters of form, yet where a fine is recorded of one term, the Court will not alter it and make it a fine of another. Heath v. Sir J.E.V/ilmcr, 2 Black. Rep. 778. Wilfon on Fines 58. A fine was taken on the ifl of O^oler 1770, 10 Geo. III. and acknowledged be- fore CommifTioncrs, in v/hich Sir John Eardley Eardley PFilmot (then Lord Chief JufVice of the Court of Common Pleas) and others were cognizors, which was pafied, in- groflcd and recorded as a fine of the pre- ceding Trinity term ; Sir John had nothing in the lands until a few days before he ac- knowledged the fine, and therefore in the deed to lead the ufes thereof, it was cove- nanted by the parties, that the fine (hould be levied as of the Michaelmas term next tnfuing the acknowledgment of the fine, but by miftakc the fine was recorded as of the preceding Trinity term. Upon pro- ducing the deed to lead the ufes of the fine and ihcwing the miftake, it was moved that the fine might be altered, and made a fine of Michaelmas term, according to the covenant in the deed of ufes ; but Lord Chief Juftice De Grey, and the whole Court obfcrved, that this was not a mo- tion to amend a fine, but to make a new fine; for Sir John Eardley JVilmot havir^g nothing in the lands at the time v;hen the fine was levied and recorded, it could only operate as a bar to himfelf and thofe claiming under him, fo that the granting of this motion might prejudice the rights of ftran2;ers» 244. No '&" ifutes?. 244. No change of the Chriftian names of parties to a fine is allowed by way of amendment. Dix'on V. On a motion to alter the name of the de- z^hhck. mandant in a fine from Robert to John on Rep. 816. an affidavit by the attorney concerned, that John Dixon was the party meant who had purchafed a part of the eftate, and that no deed to declare the ufes of the fine had been executed^ the Court refufed the mo- tion. Hut. 122, 245. By the ftatute 23 Eliz. c. 3. / 10.' it is enabled, that no fine levied before that Afb, which Ih'all be exemplified under the Great Seal, fhall, after fuch exemplifica- tion, be in any wife amended. And by the ftatute 27 Eliz. c. 9. /. 10. no fine levied before that A6t, which Ihall be exemplified under any judicial feal of any of the Ihires of Wales, or the town or county of Haverford Wejl, or under the feal of any of the counties Palatine, fhall, after fuch exemplification, be in any wife amended. fincj?. 157 CHAPTER VIII. Of tlie Force and EfTcdl of a Fine at Common Law, and by the Statutes • 1 8 £^. I. 27 Ed. I. and 34 EcL III. 246. TTAVING flated the various Force 0/ a B I . n 1 • 1 ■ f'"<^ iii common A 1. circumftances which are ne- '^^^^ ceflary to the levying a fine, we fhall now proceed to inveftigate the cfFeds with which it is attended. By the common law all decifions of the king's courts were allowed the utmoil force in afcertaining the rights of the con- tending parties : now a fine being con- fidercd as a compofition of a fuit afcually commenced, and the concord of a fine coming in lieu ot the fenrence which Vv'ould have been given in cafe the parties had not agreed to terminate the fuit in this manner, it was allowed to hr.ve the fame Plowd. 357. force and efiecl as a judgment of a Court of Juftice in a real adion. This idea feems alfo to have been adoprcd from the civil law^ for it rs faid in iss Chap, virr, Cod. lib. 2. ti:. 4. 1. 20. Vin. de Tranfaa. C. 8. n. 3. in Jujf inlands code, nonminorem auBoritatem tranJa£iionum quam rerum judicatorum ejje reSfa ratione 'placiiit. And the rule laid down by modern civilians is, tranJaSlio inter ipfos tranftgentes ear.dem vim hahet quam res judicata, et proper ea cauja tranJaElione decija et Jinitay non magis quam Jententia re- tra^atuvy nee alioqui nullus fit litiumfnis, 24-. The delivery of poffefTion by the Iheriff after a fine was levied, in purfuance of the writ o( habere facias Jeifinamy which ifTued for that purpofe, being equal in point of notoriety to the ceremony of livery of feifin, it was therefore eftabliflicd, that a fine not only transferred the pofleffion, bur alfo the right of pofieffion. It does not however take away the right of entry of thofe who have a title to the land, unlefs where it is levied by a tenant in tail in pof- fefTion, in which cafe it operates as a dif- continuance of the eftate tailj fo that the remainder-man or reverfioner is barred of his entry, and has only a right of a<5tion left : for although the flatute de donis fays, et fi finis flip er hujufmodi tenementur,i in fo- Jierum, levetur ipfo jure ft nullus, yet thefe words v.'ere only held to extend to the right of the ifTuc in rail;, and not to their pofTef- fion. Stints. Hon. There are however feveral cafes, in which a fine does not operate as a dif- continuance of an eftate-tail, which will be taken notice of in a fubfequent part of this work. 248. A final judgnnent in a writ of right, and a chirograph of a fine, were originally confidered as perfecft bars to all claims whatever from the moment they were completed. Thus Maddox has tran- Di.T. p, 14, fcribed a record of the 10 Rich. I. where ^i- Roger de IVermedale was impleaded for lands, of which a fine had been levied: and it was adjudged that he fhould hold the lands in peace, and that none of the faid perfons could rightfully implead him, as they were in patria when the fine was levied, and made no claim: Reccraatum eft per eofdera harems quod pofi fnem et ecu- cordiam f^Barn inter fradiolos Matildi'jn et Roger urn y &c. traserunt pradioJum Roger urn in placiluKi de teneraento quod annotatur in rotulo fracedente. Et quod judicium fuit, quod Roger us teneat in pace tenement unt preediofum^ ficut continetur in cyrographo fa^o inter ipfmn fe* prtediofum Matildumy (fj quod nuHus pr^diLlorum poterit eum /;;;- placitarCi ex quod ipfi fuerunt in patria (luando a. c^ b. Stint0. qunndo fnls llle faEliis fuit ^ H non pc/uerujft clameiim aliquod in terra illa^ ficut pr Plowd. 359. zee, otherwife they were no bar whatever j becaufe, until there was a tranfmutation of pofTeiTion, ftrangers were not prefurned to M 3 have 1$$ ifinci^. [Chap. VIII. have any notice of the alteration of proper-. " — '' — ' ty, and therefore were not obliged to put in their claim. Co. Read. i8. This rule gave rife to a great number 2 liiii:. 5^2. of fuits, by the maintenance of the nobility I Reeves 450. ' ' . , , < and great Barons, during the infurredlions and civil wars which happened in the reign o{ Hefi, 3. Averments that there was no tranfmutation of pofTefTion were frequently made againft fines, and were ufually allow- ed in the two following cafes j firfl, where a man feifed in fee levied a fine to a flran- ger fur cognizance de droit come ceoy £s?<", and the cognizee granted and rendered back the fame lands to the cognizor in tail, for life, or for years ; and, fecondly, where , a tenant in tail accepted of a fine from a perfon who had nothing in the lands. li^G, In thefe cafes, the heirs of the cog- nizor, who were prejudiced by fuch fines, were allowed to avoid them by an aver- inent that there was no tranfmutation of poirefTion. To remedy this inconvenience ,1 ftatute was made in the 27 Edw, i. called the ftatute de finihus levatis, enading, that fuch averments fhould not thenceforth be admitted. This This flatute alfo diredled, tliat the note chap. VLU. ■of every fine (hoiild be read in the Court ' - ' of Common Pleas in two certain days in the week, and that during fuch reading aH pleas fhould ceafc. 257. By the common law, and alfo by of the /iatutt the Ihtiue de m do lev andi fines, all thofe 'f "'"^^■^^"''' who had any right to lands whereof a fine was levied, were obliged to make their claim within a -year and a day, unlefs they laboured under fome one of the dilabilities fpecified in that afl; and it was determin- ed, that, in the cafe of tenant for life, re- 3^^. , jpft. mainder for life, remainder in fee, if the 254- ^'^2- 2 Inft. 5'L. firft tenant for life had aliened his eftate, and the alienee had levied a fine, the re- mainder man for life might enter and avoid the fine, both as to himfelf, and as to the remainder m.an in fee : but if the per- fon next in remainder neglected to enter within the year and day, not only he, bun a'ifo the remainder man in fee^ were for ever barred, and a claim by the remainder maa within the year and day would not have fav.ed his right, by which means the eftates of remainder men and reverfioners were frequently barred by the negled of the par- sticular tenants. M 4 a5>8. This Rot.Parl.vol. 2. p. 142. 258. This was certainly a very great grievance, and was fo fcverely felt, that to reniedy it, the llatute of non-claim 34 Ed, 3. c. 16. was pafled, enafling, *' That the plea of non-claim of fines, which from thenceforth fhould be levied, Ihould not be taken nor holden for any bar in time to come." This ftatute was made in confequence of a petition from the Commons, which is publifhed in the rolls of Parliament, 17 Edw. 3. no. 26. liem que noncleyme des fines levees fur le rendre en temps a venir ne bar re 7iul home deja a5Iion. To which the King anfwered, Ilpkji au Rot q'de/ore cefi chojejoit fait et q ejiatutent foit fait p' avis des grantz &t autres dejon conjeil. The efficacy of fines was entirely deftroy- ed by this ftatute, and ftrangers were there- by allowed to claim lands at any indefinite period of time after a fine had been levied of them, which muft have been produftive of very great inconveniences. 259. The ftatute of non-claim is ftill in force with refped to fines which are levied without proclamations ; and although fuch fines fincisf. fines are no bar to the iflue in tail, yet when levied by a tenant in tail in poffeflion, they operate as a difcontinuance, and of courfe put the remainder men or reverfioners to their formedon, which now, by the (latute 2 1 Ja. I. c. i6. muft be brought within 20 years after the right accrues, unlefsthe per- fon who has the right labours under any of the difabilities fpecified in that ftatute. *7o JfltlCiEj. CHAPTER IX. Of the Force and EfFecfl of Fines by the Statutes i Rich. III. 4 Hen. VII. and 32 Hen. Ylil. in barring Eftates Tail. Of ihe (l-atut? i5o. T T lias been a conftant remark of * ,'\'^* '-*" fhofe who have had occafion to 3 Blacklt. 70. 2 Blaikit. trace the hiftory of our Englijh 'yin^^xxi- ^^7' dence, that whenever a material altera- tion was made in the common law, the inconveniences arifing from fuch change, have been much greater than thofe which were intended to be remedied. This obfervation was perhaps more fully exemplified by the confequences which attended the flat, of Non-claim, than by any other innovation which has been attempted in the common law. On this fubjexfl it is difficult to add any thing £ Inft. 51S. to the force of Sir Ed'-juard Coke's expref- fion, " Great contentions arofe, and few men were fure of their pofleffions." And it is aflonifj-iing that the Legiflature fhould fufPer a grievance which muft have been fo uiiiverfally fcltj to continue "io long; for for the common law rcfpefling non-claim Chap. rx. was not revived until the firll year of the ' '^""^ reign of Rich. III. who feems to have Bacon's life attempted to palliate his cruelties, and of Hen. 7. the ufqrpation of the crown, by the many excellent laws which he immediately enafl- cd J one of thofe was the i Rich. 3. c. 7. by which the common law was reftored, and tlie doclrine of non-claim revived. c. 24. 261. This ftatute was foon followed by Ofthrjiatute the 4 Hen. 7. c. 24. and as in this laft fta- \ ^^"- /• tute all the claufes in the i Rich. III. arc copied almoft; verbatim, and fome addi- tional matters are lubjoined ; the flatute I Rich. III. is now become ufelefs and obfolete, and the whole effedb of fines depends almoft entirely at this day on the 4 Hen. VII. for which reafon it will be neceffary to explain it at large. This a(3: after reciting the lafl claufe in the ftatute de jinibus levatisy proceeds thus — " The king our fovereign lord con- " fidereth that fines ought to be of the " greateft ftrength to avoid ftiifes and '* debates, and to be a final end and con- ^'clufion: and offuch eff^ecl were taken ** afore a ftatute made of non-claim, and ** now is ufcd the contrary, to the univer^ «^ fal 172 irine^. Chap. IX. *< fal trouble of the king's fubjeds j will " therefore it be ordained, ^c," The firft feflion which direds the procla- mations to be made, has been already ftated. 262. Se^. 2. " And the faid proclama- " tions Co had and made, the faid fine to " be a final end, and conclude, as well " privies as ftrangers to the fame, except " women covert, other than be parties to " the faid fine, and every perfon then " being within the age of 2 1 years, in pri- *- fon, or out of this realm, or not of " whole mind at the time of the faid fine *' levied, not parties to fuch fine." We have feen that by the common law, a fine levied of an eftate-tail, only ope- rated as a difcontinuance of it, and did not bar the ifTue from bringing their formedon. But in confequence of fome ambiguous exprefiions in this ftatute, it was fuppofed to enable tenants in tail to bar their ifTue by a fine; eflates tail how- ever had continued fo long, and were fo much favoured by the nobility, on account of their not being forfeitable for treafon, that the Judges were extremely cautious of putting fo extenfive a conflruftion on f(nc0. 173 on it, efpecially as the ftatute de dvnh Chap. TX. conditionalibus exprefsly declares that a fine ' ^^^ levied of an eftate-tail fliould be void. A cafe however arofe in lo Hen. VIII. ^'^o Ab. tit. /T 1 r line, pi. I. in which this point canae in qiieltion before 13^,^,. ^ 3^ all the Judges in Serjeants' Inn, a tenant i I'l^- i2«' ' in tail levied a fine and the five years pafT-d ^i^eev'es in his life-time, he afterwards died, and 3 34- the queftion was, Whether his ifTue fhould be barred by the fine. Englefidd, Shelley^ and Coningftjy contended, that the ilTue was not barred becaufe he was neither privy nor party to the fine, for he clainned the land from the donor and not from the donee, although he miift convey himfelf to the land by the father. On the other fide Fitzjames, Brudenell, Fitzherbert, Brooke and Mcore, were of opinion that the iffue was barred, for the intention of the makers of the ftatnte was that a fine fhould be a final end and conclude as well privies as Rrangers, and that the third faving only extended to ftrangers bu: not to privies. iGv This determination ofthejudo-es 0; the f.a:i.:r feems not to have been entirely approved of, for in 32 Hen. VIII. a (latuce was made reciting that doubts had ariien refpcifting the t. 36. i\ I. the validity of the flat. 4 Ilefj. VII. lA barring the ifiue in tail; and enadingj 32 Hen. 8. "That all and fingular fines, as weil " heretofore levied, as hereafter to be le- ** vied, with proclamations according to ** the ftatute, by any perfon or perfons of " full age of one and twenty years of any " manors, lands, tenements or heredita- " mcnts before the time of the faid fine " levied, in any wile intailed to the perfon " or perfons fo levying the faid fine, or to " any of the anceftors of the fame perfon " or perfons in pofTeflion, reverfion, re- " mainder, or in ufe, fhall be, imme- " diately after the fame fine levied, in- " groffed, and proclamations made, ad- " judged, accepted, deemed and taken, " to all intents and purpofes, a fufficient " bar and difcharge for ever againft th« " faid perfon and perfons, and their heirs, " claiming the faid lands, tenements, and " hereditaments, or any parcel thereof, " only by force of fuch intail, and againft " all other perfons claiming the fame or " any parcel thereof, only to their ufe, of " to the ufe of any manner of heir of the "bodies of them, any ambiguity, doubt, " or contrariety of opinion arifen or grown ** upoA on Of '^ upon the faid Itatute to the eomrary *' notwithftanding." 264. The f^atute 32 Hm, Vill. having o.v;-/:/.' been profeiTedly made for the purpofe of 'b'/rfi^'^tei explaining the ftatute 4 Hen. VII. they Eitatc^ taiU muft be confidered as forming one law. The doftrine eftablifhed by them is, that a fine wirli proclamations fliall bar all pri» vies and ftrangers, and when levied of any manors, lands, tenements or heredita- ments intailed to the perfon levying fiich fine, or to any of his anceftor*;, iliall bar the faid perfons and their heirs claiming by force of fuch intail. 265. The term by which the ifTue in tail is defcribed in the ftatiite 4 Hen. VII. is that of privy, which has various fignifi- cations in law; it fometimes means that connedion which arifes between perfons i Inft. z-jt. who have entered into a mutual contradl ^' . 8 Rep. 42. b. With each other, as between donor and donee, lelTor and lelTee ; or elfe it fignifies a relationfhip of blood, as between an- ceftor and heir. But in confequence of the ftatute 32 Hen. VIII. it has been deter- mined that by the word privies are meant thofe perfons who are not only privies in blood 176 filter. Chap. IX. blood to the perfons who hvy the fine^ ^^^^"^ but alfo privies in eftate and title to the land whereof the fine is levied, that is, thofe who niuft neceflarily convey their defcent through the cognizor before they can make out their title to the eftate, which comprehends the iffue in tail ; and a perfon who is privy within the intention Shep. Tou. of the 4 Hen. VII. is an heir in tail within *^' the intention of the 32 Hen. VIII. et Jic e converfo. 266. Thus if a tenant in tail in poflef- fion levies a fine with proclamations, ic will be an effcftual bar to allhisiflue; for they are privy to him both in blood and eftate, and can only make a title to the eftate-tail as his fons. Dyer 351. b. 267. So where huftjand and wife were tenants in fpecial tail, and the huft)and alone levied a fine, it was determined in Beaumont's '^ ^^^"^- ^"^ ^^^^ '" ^^ J^' ^- ^^^^ '^ ^^^ cnfe, a good bar to all their iffue ; for in mak- 9 Rep. 138. .^^ ^^^ ^j^^j^ ^.j.^^ ^^^^ j^y^ neceffarily jfhew themfelves to be heirs to the father as v/ell as to the mother, an^l therefore they are privies both in blood and eftate to the cognizor of the fine. 268. Sir 26R. Sir Edward Coke fays, that if lands were given to an elder fon and the heirs of . „ ' his body, remainder" to his father and the heirs of his body, and after the father's death, the eldeft fon had levied a fine with proclamations, and died without ifliie i the fecond fon would have been barred by the fine, becaufe the remainder which was li- mited to the father and the heirs of his body, having defcended on the eldeft fon, the fe- cond fon in making out his title to this re- mainder, muft convey his defcent through his eldeft brother, by which means he would become a privy to him both in blood and eftate. 269. The privity muft be both in blood and Shep. Tou eftate, for privity in blood only will not be ^'* fufEcientj and therefore if lands be given to a man and the heirs females of his body, who has a fon and a daughter, and the fon levies a fine and dies without ilTue, it will be no bar to the daughter j for although (he is privy in blood to her brother, yet fhe is not privy in eftate or title to him, as flie can make her title to the eftate with- out conveying her defcent through him, or even mentioning him, Vol. I. N 270. It 270. It follows from the fame principlcj that if a tenant in. tail has iflue a daughter Hob" SSS- who levies a fine, and afterwards a fon is born, he will not be barred by his filter's fine, be- caufe he can make his title to the eftate tail, as heir of the body of his father, with- out conveying his defcent through his ■fifter. -27 1. It is not neceflary that a tenant in tail fliould be in the adlual pofieflion of the eftate tail, in order to be capable of bar- ring his ifiiie by fine i for the ftatute 4 Hen. 7. has exprefsly excluded parties and pri- vies to a fine from averring quod partes finis nihil hahuerunt, and the ftatute 32 Hen. 8. makes a fine levied of any lands intailed to the perfon fo levying the fame, or to any of his anceftors, a fufficient bar againft fuch . perfon and his heirs. A fine therefore with proclamations duly levied by the perfon who has the right of an intail in him, will be a good bar to his iflue, although at the time. when the fine was levied, he had never entered on the eftate tail, or had only an eftate tail in remainder, or had even made a feoffment, or any other conveyance of it. 272. Ed' Jrine0. ^19 9.72. Ed'wari^ Lord Zoiich brought a for- Chap. IX. medon in the defcender for a moiety of a ^ manor againfl: one Bamfield, who pleaded in Zouch v. . bar that 'John, great-grandfather of the de- ^^^^^^ gg^ mandant, levied a finey^r cognizance de droit \ Leon. 7S' f^;«^fi'o,with proclamations of the faid moi- ety, which was granted and rendered by the fame fine to the faid 'John and his heirs, whofe eftates the tenant had. Lord Zouch replied, that at the time when the fine was levied, and at ail times after, the faid Bam- field was feifed of the land in his demefne as of fee. And on folemn argument it was determined by all the judges, that the de- mandant being heir in tail to the perfon who levied the fine, could not aver the continu- ance of the land in aftranger, nor that^^r- tes finis nihil habuerunt^ becaufe the ftatutes 4 Hen. 7. & 32 Hen. 8. bound the eftate tail, although the perfon who levied ihct fine was not then in pcsfleflion of the cilate tail, which Sir Edward Coke obferves was ♦ the firft determination on this point. 273. A fine levied by a tenant in tail in re- mainder, expeftant on an eftate for life, or an eftate tail, will be a good bar to the iflue of the perfon who levies the fine. .N 2 J. bc-» iFfne0. A. being tenant for life remainder to B, in tail reverfion to B. and his heirs, B, le- Cafe of fines, ^j^ j ^ ^^^ ^jj.j^ proclamations of the eftate 3 Rep. 84. ^ Jenk. 274. tail, during the life of the tenant for life : and it was adjudged to be a good bar to the eftate tail under the words of the ftatute 32 Hen, 8. 3 Rep. 90. a. 274. If a tenant in tail makes a feoffment of the eftate tail, and afterwards levies a fine of it, his iffue will be thereby barred. Muntv.KIng. IVilliam Kingy the grandfather, being Cro. Ehz. tenant in tail, enfeoffed Richard Kingy the t) I o. father, in fee j and afterwards William King diffeifed him, and levied a fine with pro- clamations to one Hitchcock. The father entered, and the cognizee of the fine enter- ed on him : after the death of the grandfa- ther and father, the fon brought a forme.- don for the recovery of the land, to which this fine was pleaded in bar : the demand- ant pleaded the entry of his father, and judgment was given for him. A writ of error was brought, and error afUgned in . matter of law, that this fine was a good bar to the ifiue in tail by the ftatute 32 Hen. %, for it was not to be compared to a fine at common law, nor to fines levied by other perfonSj^ Stints. perfons, becaufe in this cafe it was fufficient that the fine was levied by the perfon who had the right of the eftate tail in him, or to whooi the land was itttailed, although none ofthe parties to the fine had any eftate of freehold in poflefllon, remainder or re- verfion in the land whereof it was levied, as it was adjudged in the cafe of Zouch v. Ante f, z;^ Bamjield, The Court being of this opinion the judgment was reverfed. 275. Although a tenant in tail be difTeifed 3 ^ep. 90. a, of the eftate tail, yet if during the difteifin J^"^*275- he levies a fine to a ftranger, it will bar his ifllie, who will not be allowed to plead, thas his anceftor was not feifed of the eftate tail when he levied the fine. 276. In cafe of a lineal defcent, the iftue in tail may be barred by the fine of his ancef- tor, although at the time of levying the fine the anceftor had only a poffibility of an eftate tail, which never took efFefl, becaufe the iflue in making his title, muft convey his defcent through fuch anceftor, which makes him a privy to him. Lands were given to y1. and his wife in Archer's cafe fpecialtaili .f. died, leaving ifTue a fon, Hob^'a^^."' N 3 who who diflelfed his mother, and levied a fine with .proclamati(3ns. It was refolved by all the judges, that this fine was a good b^r to the iflue of the fon, although the fon, at the time when he^ levied the fine, had only a poflibility of an eftate tail, his nnother being then alive ; for the (latute 32 Hen. 8. ought to be expounded according to the letter of it, and as the land was intailed to the an- cellor of the perfon who levied the fine, although fuch anceftor was alive, fo that no eftate or right had defcended on the perfon who levied the fine v.'hich he could pafs or extinguifh, yet as the ftatute fays — '^ intail- " ed to the rerfon fo levying the fame, or ?' to any of his anceftors," in the disjunc- tive, it was adjudged that the fine did bar the right which afterwards defcended to him, not only as to himfelf, but alfo as to all his iflue. £77. This principle v/us carried much further in the following cafe : Grant's cafe, William Grant devifed his lands to John cited loRep. Qranty when he (hould attain the age of twenty five years, to hold to him and the heirs of his body. John Grant , the devifee, after he had attained the age of 2 1 years, but 50. a. but before he was 25, levied a fine of the Chap. IX, Jands thus devifed J and the queRion was, ' "^ ' whether it fhould bar his ifiue. It was re- folved that the cftate tail was barred by this fine, although John Grant when Kc le- vied it had but a bare pofllbility of an eftate tail. ^\^ Edward Coke ix^% that no judg- ment was given : but Croke 3.nd Leonardy Cro.EIiz. who have reported this cafe by the name ^ Leon. ■xS. o{ John/on and Bellamy, fay that judgment was given, that the eftate tail was barred by the fine. And in S\r Thomas Raymond's Reports, 149. it is faid, that although the cftate was not barred by the 4 Hen. 7. ic "was well barred by the 32 Hen. 8. in con- fequence of thefe words, " All fines, levied " by any perfon or perfons, &c. of any " manors, &c, before the time of the faid " fine levied in any wife entailed to the ** perfon or perfons fo levying the fame " fine, or to any of the anceftors of the *■* fame perfon or perfons," 278. In the cafe of a collateral defcenr, a fine levied by a perfon who was never feifcd of the eftate tail, and on whom it never defcended, but who had only a pof- fibility of an eftate tail, is no bar to a col- Lateral heir in tail, of the perfon who levied N 4 the fittejs. the fine j becaufe in making his title to the eftate tail, he need not convey himfelf through him, fo that he is not a privy to him. Mackwilli- ana's cafe. Hob. 332. Sir W. Jones, 31.S. C.by the name of Godfrey v. Wade. Ante f. 198. A hufband made a feoffment to the ufe of himfelf and his wife, and the heirs male of their two bodies, remainder to the heirs male of the body of the hufband, remainder to the heirs of their two bodies, remainder in fee to the hufband. The hufband and wife had ifTue a fon and a daughter, the hufband diedj the fon made a leafe to commence after the death of his mother, then levied a fine with proclamations to the ufe of himfelf in fee, and died without iffue in the life-time of his mother. Thequef- tion was, whether this leafe was good againft the daughter ? It fhould previoufly be obferved, that the eftate tail limited to the hufoand and wife, and the heirs male of their bodies veiled wholly in the wife after the death of her hufband, although fhe was within the ftatute 1 1 Hen. 7. c. 20. and the remainder to the heirs male of the body of the father was in the fon at the time when he levied the fine ; but thefe eftates became extind when the mother and fon died, fo that the leafe in queftion could could only be derived out of the remainder to the heirs of the bodies of the hufband and wife, to which both the fon and the daughter were inheritable. It was deter- mined by Lord Chief Juftice Hohart, Hut- ton and J ones ^ againft the opinion of Winch ^ Ithat although in a lineal defcent the ifiue in tail were barred by the fine of their an- ceftor, notwithftanding fuch anceftor had but a poflibility of an eftate tail when he levied the finej yet in a collateral defcent the cafe was very different, as it was not neceffary that the ifiue in tail fhould make mention of every collateral ifiue inheritable before hina, as in a lineal one ; and that in the prefent cafe, as the efl:ate tail never de- fcended on the fon, his fine could be no bar to his filler, who was not privy to him, becaufe fhe could make her title to the eftate tail without conveying her defcent through him, or even mentioning him in her pedigree. Judgment was therefore given that the leafe was void as to the fif- ter, but it was obferved that if the eftate tail had defcended on the fon, his fine would then have barred his fifter, becaufe in that cafe fhe muft have conveyed her lilefpent through hini, in order to make out her her title to the eftate tail, by which means fhc would have been a privy to him. Bradilock V. 279. So where an eldefl: fon levied a Scovell, f^nc q{ an eftate tail, which was then veiled Cro,Car.434. . j j- j • 1 i-r • c in his mother, and died in the hre-time of his mother, by which means the eftate tail never defcended on him. It was adjudged in the Common Pleas, by three Judges a^ainft one, that this fine did not bar the fecond brother. And upon a writ of er- ror, all the Judges of the King's Bench were of the fame opinion, becaufc as the eftate tail never vefted in the elder bro- ther, the younger brother was not a privy to hinri. Jenk. 275. aSo. If a fine be levied by a ftranger to a tenant in tail, and the tenant in tail grants and renders his eftate to the flranger, fuch a fine will bar the iffue in tail* 281. A tenant in tail of a rent-charge may bar it, by levying a fine of the lands out of which the rent iflues, Heliot V. Upon demurrer the cafe was thus : a Saunders. perfon who was tenant in tail of a rent- f Vel''39T.' charge out of the manor of Kingjhury granted granted by Sir Amhroje Caz'e, levied a fine Chap. IX, of the manor to Sir Ambroje Cave and his ^-^'V'^^ heirs, and this fine was pleaded in bar of an avowry for this rent by the heir in tail. The fine was levied of the rent per ncmen maneriiy and an averment was made that the fine was levied by agreement of the parties with an intent to bar the rent. The defendant pleaded, non-comprifed, which being demurred to, and argued fe- veral times, it was held by Hobart Chief Juflice, and Haweyy that the rent v;a<5 barred by the fine, becaufe the fine being levied of the land, pafled the rent inclu- fi/ely, it being diredted by the agreement of the parties, 282. Asa fine may be levied of an ad- Watf. Comp. vowfon in grofs, fo a tenant in tail of an J"^""]" ^'^' ... Piovvd.435. advowfon in grofs, may bar his ifllie by a fine levied of it according to the ftatute 4 Hen. VII. It is however faid in Flow- deriy that if a tenant in tail of an advowfon grants or renders to another by fine, the nomination of a clerk to the advowfon, this will not bind the ilTue, becaufe the right of nomination is a thing diftind from the advowfon, and not intailed ; but mo- dern writers have thought differently on this Chap. IX. this rubjei5^, on the principle that the pre- fcntation and nomination art in effect the fame thing, being the fruit and full profit of the patronage. But if a tenant in tail of an advovvfon grants by fine the nomina- tion of a clerk to one and his heirs, fo that when the church becomes void, the grantor and his heirs may nominate a clerk to the tenant in tail and his heirs, and that he or they fiiall prefent the clerk fo no- minated to the ordinary J fuch a fine will not bind the ifiue in tail, becaufe there the nomination and prefentation are dif- tinguillied, fo that the fine is not levied of the thinn: intailed. KJl-Ct D 283. If a perfon is tenant in tail of a truft-eftate and levies a fine of it, fuch fine will have as extenfive an operation in bar- ring his iflfue, as if he had been feifed of the legal eftate. "D" Smith V. S84. As a tenant in tail may convey Stapleton, f^jg whole eftate by fine, fo he may create any lefier eftate out of it, which will like wife bind his iftue after his death. Piowd. 430. Sheo.T. 26. 285. If the iflue in tail levies a fine in the life-time of his anceftor, who is then I feifed JFiiie0. feifed ofthe eflate-tai), rhr^ anceflor him- lelf may afterwards levy a fine, and thereby bar his iflue, and alfo the perfon to whom the ifflie levied the fine. So that in all cafes of this kind, it is underftood that the tenant in tail dies without barring the eftate tail, by which means it defcends upon the iflue. 286. A tenant in tail being guilty of i Wllf. Rep: murder, levied a fine before ccnviftion, P* ^* ^^°' and it was doubted whether it fhould bar the iflue for the lord's benefit. The Court inclined to think €hat it fliould, but no judgment was given. 287. Where the king is tenant in tail 7 Rep. 32. a. he may by a fine levied on a grant and ^'^^^'^^- ^^7- render, bar his eflate-tail, becaufe it beins: determined in Lord Berkley's cafe, that the king was bound by the ft:atute ^e donist it was but reafonable his majefty fliould take advantage of thofe ftatutes, which enable tenants in tail to bar their cfl:ates. 28i!. A fine/«r concejfit will bar an eflate Barl of Rut- tail as long as it continues in force, and '^"'^';"^^' 1 r n Cro. Jac.40. nhererore any cfl:iU€ created by a fine of Icnk. Cen:. that 32'- Chap. IX. that kind will be good againfl the iflue is tail. 289. Although a fine levied by a tenant in tail may be defeated by a perlbn clainrv- ing fome particular eftate in the lands of which the fine is levied, yet it will dill continue to be a good bar to the iflue in tail. 1 And. 43. A tenant in tail difcontinued in fee, af- 3 Rep. 91. a. terwards difleifed the difcontinuee and Com. Rep. , . 1 jT 216. levied a fine with proclamations j the oil-' continuee entered on the land, and avoid- ed the eilate, which pafled by the fine as to himfelf. The queftion v/as, Whether the heir in tail was remitted or not, and the Judges were unanimous, than the heir in tail was not remitted, but was barred by the flatute 32 Hen. Vlli. akho' the eitate which pafled by the fine v/as avoided. The fame point was determined in the cafe of Huj7t v. King, which was ftated in <"• 274- the preceding part of this chapter. 290. Although no fine is a bar to an eftate-tail, but a fine with proclamafiions levied purfuant to the ilatute 4 Hen. VII. yet as foon as a fine is levied, and before o all irinc0. all the proclamations are paft, it is a good bar to an eftate-tail, provided the procla- mations are duly made, and the ilTue in tail cannot fave his right by entering be- fore all the proclamations are made. This point was formerly much doubted, and in the cafe of Smith and Stapletotiy PJowd. 434, 15 EUz. it was contended by the counfel, that in confequence of the words in the ftatute 4 Hen. VII. '' and the faid procla- " mations fo had and made, the faid fine " to be a final end, and conclude as well " privies as ftrangers, i^c." And alfo the words in the ilatute 32 Hen. VIII. " afcer " the fame fine levied, ingrofied, and " proclamations made, ^c." A fine was no bar to the iffue in tail, if the anceftor died before all the proclamations were made: and Brooke feems to have been of j^"""- ^^- ^'^* the fame opinion; the contrary, however, was determined in the following cafe : Fine, 109. ^29 1- Sir George Bhiint being tenant in Purflow's tail of feveral manors, and having ifTue a , Rep. 00. daughter, levied a fine and foon afterwards died. The daughter immediately brought a formedon for the recovery of the eflate- tail, pending which, all the proclamations were were made. It was unanimoufly deter- mined, that the daughter was barred by this fine, although her anceftor died, and fhe commenced her aftion, before all the proclamations were made. Sir Edward Coke makes four obfervations on this cafe. ill. That although, after a fine is levied, a right to an eftate-tail defcends to the jfi'iie, yet as foon as the proclamations are made, the right which thus defcended is barred by the fine. id. Although a formedon is brought and purfued, yet, if the proclamations are all afterwards duly made, the fine will then be a good bar. 3d. When tenant in tail levies a fine, and dies before all the proclamations are made, the ififue in tail is not within any of the favings of the 4 Hou VII. for, if he were, then the bringing his formedon before all the proclamations were made, would avoid the fine. /4.th. That the proclamations ferve no but that of diftinguilViing a fine fine levied purfuant to the ftatute 4 Hen. VII. from a fine at common law. 292. So where a tenant in tail levied 3 Cafe of fine?, fine and died before all the proclamations 3 ^^P- ^4- were made, leaving a fon, who was be- yond fea, who returned after all the pro- clamations were made, and claimed the land. It was refolved by all the Judges, that although a right of entail defcended to the fon on the death of his father, in confequence of his dying before all the proclamations were made^ yet, when all the proclamations palled, the right which defcended to him was for ever barred, and the ifTue could not have faved it by any claim, 293. We have feen that fines may be Ante f. 133. levied in courts of ancient demefne, and other inferior courts j but they have only the operation of fines at common law which is to create a difcontinuance, when Com. Rep. levied of an eftate-tail, and do not bar the ^^+* iflue from bringing a formedon -, for no fine unlefs it is levied with proclamations, purfuant to the ftatute 4 Hen. VII. has the effeft of barring an eftate-tail, without a particular cuftom. Vol. I. O 294. There iffnc*?. 294. There is one fpecies of eflate-taii which is proteded from the operation of the ftatutes 4 Hen. VII. and 32 Hen, VIII. that is, an eftate-tail given or procured to be given by the crown as a reward of fcr- vices, where the remainder or reverfion is veiled in the crown j of which notice will be taken in a fubfequent chapter. ilnft.223.b. 295. The privilege of levying a fine "°'f ^' Durfuant to thofe flatutes, is an incident fo 1 Vent. 321. r 2 Vern. 233. infeparably annexed to an cftate tail, that any condition or provifo rcftraining or pro- hibiting it, is held to be repugnant to the nature of the eftate, and therefore void. But a tenant in tail may be reftrained from levying a fine at common law, becaufe that is a tortious aft, and only operates as a dif- continuance to the iflue, 296. Before we quit this fubjc6l it may be proper to obferve, that the operation of a fine is merely to bar the eftate tail, but not the remainders or reverfion which de- pend upon it : for a fine levied by a tenant in tail in poflfefiion, only difcontinues the etlate tail, and gives the cognizee a bafe fee, that is, an cftate to him and his heirs, as long as the tenant in tail has heirs of his bodyi \ fincsf. body i but does not bar the rights of the pcrlbns in remainder or revcrfion. 2Q7. Where the tenant in tail has the •^l'T-37«- . . - - , 4 Mod. 1. ionnncdiate rcverfion in fee in himlelf, he may make a good title by fine only -, for ia that cafe the operation of the fine will be to merge the eftate tail, and bring the re- vcrfion in fee into immediate poflefiion : it being deternained that a fine takes away the proteftion given to eftatei tail by the ftatute dedonisy and they then, like all other particular eftates, become fubjedt to merger and extinguifhment, when united with the abfolute fee. This method, however, of barring an eftate tail, is attended with one confidera- ble inconvenience, which will be mention- Infra. ed in a fubfequent chapter. 298. There are two claufes in the ftatute S. 3 S: 4. 32 Hen. 8. c. 36. by which it is enafted. That it fhall not extend to any fine levied of any lordlhips, manors, &:c. the owners whereof, by any exprefs words contained in any fpecial aft of Parliament made fince the 4 //^«. 7. are reftrained from aliena- tion i nor to any manors, lands, tenements, O 2 ace. Sim- tec, then in fuit, demand, or variance in any of the King's Courts, or whereof any charters, evidences, or muninients, were then in demand in the Court of Chancery, &c. but all fuch fines fhould have the fame force and effed as if that ilatute had not been made. iTincjcf. 397 CHAPTER X. Of the Force and EfFed of a Fine in barring particular Pcrfons, Eflates, and Interefls. 299. fJ^ H E obje6l of the ftatute 4 // f^^ ^'"'^ continuance or his eftate in his Abr. 4|8. name and family, made a leafe for 500 vears in trull that he himfelf fhould receive the profits during his life, and that after- wards his brother fhould receive them. Some time after, the lefTor being in polTef- fion according to the trufl, covenanted with other ifinesf. 217 other trudees for the fame confiderations, Chap. X. to (land feifed of thofe lands to the ufe of **-— v"*-* himlVlf for life, remainder to the ufe of his brother, &c. And that the faid leafe, and all other eftates made or to be made by him, fhould be and enure to the fame ufes, and then levied a fine. A queflion arofe, whether the term for 500 years was barred by the fine and non-claim. Sir Matthew Hale obfervc-d, that nothing had been done in this cafe whereby the eftate of the ]eir<;e was develted ordifplaced; for the ledor continuing in polfefTion, by permifTion of the lefiees, as muft be prefumed, he was only tenant at will to the leffees, and there- fore his fine had no operation : befides there was a privity between the leflbr and lelfee, which prevented the fine from ope- rating as a bar to the term. No judgment appears to have been piv- Corbett v. , . ^ , . , 1 • 1 Stone, Sir T. cn in this cafe j but in another which was Ravm. i •©. exa6lly fimilar, it was determined that a fine was no bar to a term of this kind. 327. If a perfon who has made a leafe to truftees, and has dill continued in pof- felTion, makes another leafe of the fame lands, and levies a fine to confirm it, the lirft firfl leafe will be devefled by the fccond ; i'o that it will then be barred by the fine and non-claim. Freeman v. The Marquis of Winchefter made a leafe Ver.'^' c' for a hundred years, in truft to attend the I Lev. p. I, inheritance, and the leiTee entered. The ^70. 1 ac, jyjojquis afterv/ards made a leafe for fifty- Ad. 449. ^ -' four years, and, to confirm it, levied a fine with proclamations. The leflee for 54 years entered j and the le (Tee for 100 years being out of pofTeffion, afiigned his term to the plaintiff. The queftion was, v*'hether the fine and non-claim barred the term of 100 years ? It was adjudged that the Marquis, when he entered after he had made the leafe for 100 years, was tenant at will; but that he had devefled that term by making the fub- iequenc leafe for 54 years ; for it was in the power of the Marquis either to deveft the term of 100 years or not, and he had made his election by levying the fine ; fo that the t^rm for 100 years being thus devefted by the leafe for 54 years, was barred by the fine. But in this cafe all the Jud^res agreed, that terms for years, kept on foot by Simt0. 219 by purchafcrs to protc6l their edaces, fiiould Chap. X. not be barred by a fine and non-claim. v^-v-^^ 328. Eftates held by flatute merchant, EflausheUby flatute -ftaple, and elegit, are comprehend- ^,^^^^^ ^^^ cd within the flatute 4 Hen. 7. and may 210(1.517. therefore be barred by a fine and non- ^ " ^^' ^^' claim, provided the lands be extended. Thus upon a trial at bar, the Court de- 92"f '] ^: ' . Lord Arli5g- livered it as law to the jury, that where ton, 1 Mod. lands were aflually extended on a writ of ^*7' elegit, the tenant by elegit might be barred by a fine and non-claim ; and that if an in- quifition upon an elegit be found, the party has the polTefTion before entry, and may bring an ejeflment or aflion of trefpafs. So in the cafe of Deightcn v. Grcnvilky which will be flated in the next chapter, all the Judges agreed, that although the cog- nizees of flatutes merchant did not enter, yet that they had pofTeffion in law, in con- fcquence of their extents and liberates^ which gave them a right of entry, and therefore they might be barred by a fine. 329. The eflate of a devifee may be bar- D.-vifus. red by a fine and non-claim, if the devifee has not entered. Thus Cro. Car. 220 linc0. Chap. X. Thus where John Metcalfe devifed lands vj , to lohn Gallant, an infant of the age of Keylock, three years, in fee. The fon and heir of John Afetcalf cntertd on the lands, and le- vied a fiP.e of them. John Gallant the in- fant died before he attained, his full age, leaving a filler, who was then married. The Court were of opinion that the filter muft make her claim within five years af- ter the death of her hufband^ otherwife the fine would bar her. Executors to 330. Executors to whom lands are de- •xzhcmlamh -^'^{^^ for payment of debts, may alfo be ert given for ^ • i /• 1 i j l fayrnentof barred by a fine kvied of the lands thus debts. . devifed, if they do not make their claim in 5 Rep. 124.3. •' due time. A title of en- 33?. A title of entry for a condition try pr a eon- broken, may be barred by a fine levied mtiQH broken. . . by the grantee or devifee of the condition- al eftate. Mayor of Thus, where lands were devifed to truf- Londonv. j.^^^ ^jj^j ^l^gjj. heirs, upon condition that Car. 575. they mould pay a certain lum or money 1 W. Jones, every year for the fupport of a fchool- ^^ ' mailer, &c. and, on non-performance of the truftsj the lands were devifed over to other irine0. *2i other perfons. The truflees negle(5led to Chap. X. perform the trufts, and levied a fine of the lands. It was determined that the fine was a good bar to the perfons who had a title to enter on breach of the condition. 332. A title of entry for a cpndlcion Shcp. Toa. broken may alfo be barred by a fine levied '^'^* by the'grantor of the conditional eftate : as if a perfon makes a feoffment on condition, and before the condition is broken, the feoffor levies a fine of the fame lands, either to the feoffee or to any other perfon, the condition will be thereby difcharged for ever. But if the fine was levied for the purpofe of corroborating the conveyance by which the condition was created, it will not deftroy the condition j for in that cafe the fine and conveyance will be conflrued ^^^J^^lie^ together, and will operate as one alTur- 69. ancc, 232' ^^ feems that a right or title of en- try on any other account may alfo be bar- red by a fine. Thus, where Humphrey Mackivorth was Thomafm v. feifed to him and his heirs, provided ttiat c^j-tcr -5. if 100/. was not paid within three months after 211 ffllEgl. Chap. X. afcer the birth of a child, the truftees fliould enter. The money was not paid ; fo that the eftate of Humphrey being with a quouf- qusy ceafed, but the truftces did not enter. Humphrey conveyed away the lands by leafc and releafe, and levied a fine ; after which five years paffed. Lord Chief Juftice Bridgeman delivered the opinion of the Court, that the entrv of the truflecs was barred by the fine. A power ap- Z3A' ^ power appendant, or in grofs, petidant, or In ^^y j^^ barred by a fine levied of the lands "110(1.237.3. to which the power relates, by the perfon 3 Rep. 83. a. to whona. fuch power is referved ; becaufe by the fine, the perfon acknowledges all his right and interefl in the lands to be veiled in another ; and therefore it would be re- pugnant to that acknowledgment that he Ihould ever afterwards claim any power over thofe lands. Befides a power ap- pendant or in grofs, being part of the old dominion, is confidered as an interefl: which may be releafed. Dlgges's Chrijlopher Digges being feifed in fee, cafe, 1 Rep. covenanted to ftand feifed to the ufe of himfelf for life, remainder over, referving to himfelf a power of revocation, by deed indented »73- indented and inroiled. Chrijlopher Digges revoked the ufes, but, before the deed of revocation was Inrolled, he levied a fine. It was refolved that the fine being levied before the inrollment of rhe deed of revo- cation, until which time the revocation is imperfeifl, had deftroyed fhe power. 335. A power of revocation may alfobe i Inft.zi^.a. deflroyed in parr, by levying a fine of part '^"^' ■^°*" of the land, and yet the power will conti- nue good as to the refidue. 336. If a p^rfon who ha:*; a power ap- pendant, or in grofs, levies a fine of the lands to which the power relates, and after- wards by deed declares that fuch fine fiiall enure as an execution of his power, the fine and declaration of ufes will in that cafe be confidered as one alTurance, and will not deflroy the power. Sir y. JVilliams being feifed in fee, made Hening r. a voluntary fcttlement to the ufe of him- ^'"cwn, fclf for life, remainder to his brother Sir i v^ent. 36^. liL IVilitams in tail, referving to himfclf a ^'^^^^- 21. c . ^ . - Comb. II. power ot revocation. Some time after- skin. 184. wards, Sir J. //-^////^y.-j levied a fine, and » F^eir.^id. by a deed made between him, his brother Sir Sir M. Williams and others, bearing date a month after the fine was levied, reciting the fine, it was declared, that at the tinne of levying the faid fine, the agreement of all the parties to the deed was, that it fhculd enure to the ufe of Sir J, WiUiams and his heirs. It was objeded that Sir J. JVilliams by- levying this fine, without any precedent declaration of the ufes to which it fliould enure, had deftroyed his power of revoca- tion, and forfeited his eftate for lifej for the deed being fubfequent to the fine, was ineffeiflual, becaufe there v;as an interme- diate time between the levying of the fine and the execution of the deed, in which the forfeiture attached, and the power was deftroyed ; fo that no fubfequent ad could purge the forfeiture v/hich once attach- ed, nor revive the power which was deftroyed : for thefe reafons, and upon the authority o( Diggss's cafe, it was adjudged in the Court of King's Bench, that Sir J. Williams had, by levying the fine, deftroy- ed his power of revocation, and therefore that the fubfequent declaration of ufes was void. On irinc!&*. On a writ of error to the Exchequer Chamber, this judgment was reverfed by the opinion of fix Judges againft two j it being determined that the fine and decla- ration of ufes were to be confidered as one and the fame conveyance, and operated as an execution, and not as an extinguifh- ment of the power. It was agreed that a fine alone, without a deed to declare the ufes of it, would have extinguifhed the power, but that it was otherwife where there was a deed declaring what the inten- tion of the parties was when the fine was levied ; and although the date of the deed was fubfequent to that of the fine, (for no other reafon, perhaps, but becaufe the fine was levied in the vacation, and was dated as of the preceding term) ftill it was pofii- ble that the deed was executed at the time the fine was acknowledged j fo that it would be unreafonable to make a forfei- ture or extinguifliment of a right merely by relation, which is but a fidlion of law. This do6trine has been confirmed by the Court of King's Bench, in the cafe of Doe, on the demife of Odiarne v. IVhite- ^-^^S^-MS- o. r. heady which will be flated in a fubfequent chapter : fo that now whenever a fine is Vol. I, Q^ levied. levied, and a declaration of the ufes of it is afterwards executed, the fine and decla- ration of ufes will be confidercd as one af- furance. But not a 337. A power collateral to the land, fotver collate- ^j^jch is not joined with an intereft, can- not be deftroyed by a fine, levied by the 1 Inft. 237.3. perfon to whom fuch a power is referved ; becaufe it is confidered but as a bare and naked authority, which cannot be releafed or devefted. iRep.i74.a. Thus it is faid by Lord Chief Juflice Pophamj in Digges's cafe, that if a feoff- ment was made to yf. in fee to divers ufes, with a provifo that it fhould be law- ful for B. to revoke thofe ufes ; B. could not in that cafe revoke his power, nor ex- tinguifh or deftroy it by a fine, becaufe it was a collateral power j for the land did not move from him, nor would the party have been in by him, if he had exe- cuted the power. 338. It follows from the fame princi- ples that a collateral power cannot be bar- red by the fine of a flrangen Thus Thus where a perfon by a provifo in his marriage-fettle ment gave his wife a power to difpofe of ICO /. to fuch perfons as flie ^olrlH* fhould appoint, to be paid within one year i Atk. 474. after his deceafe -, and in default of pay- ment, one John Moreton was empowered to make a leafe of certain lands to raife that fum i the wife, in a year after the death of her hufband, made an appointment of the 100/. but it was not paid j the heir of the hufband levied a fine of the land, and five years pafled, and afterwards the appointees of the 100/. brought their bill to be paid that fum. Lord Hardzvicke obferved, that though by the feveral ftatutes relating to fines, all right, claim and intereft which flrangers had were barred by a fine, yet that fuch a ftran- ger as John Mcretcn^ who had no incerefl:, but only a bare naked power, and who could not have made an entry, was not af- fedled by it. 339. A fine and non-claim is a good bar jjy^^ ^^^,.^^^ to a writ of error, in conlequence of the Bartholomew word aofions in the fecond faving of the flat. v. Belirieid, 4 Hen. 7. and a fine is alfo a good bar to a "^o-jac.jsj. writ of error toreverfe a common recovery. 228 Jr(ne0. CHAPTER XL Of the different Savings in the Sta- tute 4 Hen. VII. and the Excep- tions in Favor of Infancy, Cover- ture, ^c. nf h f; ff 34^' 'T^HE great inconveniences which favin£. X arofe from the flatute of Non- claim, were removed by the flatute 4. Hen. VII. and a proper medium was eftablifhed between the unbounded latitude given by the former of thofe ftatutes, and the rigor of the common law ; for the do6lrine of non-claim was reftored, but the time al- lowed for making the claim was extended from one to five years. The words of this claufe which is called 4Hen. 7. the firfl faving are " and faving to every c. 24. f. 3. « perfon and perfons, and to their heirs, " other than the parties to the faid fine, ** fuch right, title, claim and interefl, as " they have to or in the faid lands, tene- " ments or hereditaments, at the time of " fuch fine ingrolTed, fo that they purfue " their title, claim, or interefl by way of " at^ion filter. " aclion or lawful entry within five years " next after the fame proclamations had " and made." 34r. In confequence of this claufe, it Shep. Tou. follows that all thofe who have any prefent 3°- right or claim to lands whereof a fine is levied, are allowed five years, to be counted from the day on which the laft proclamation was made to make their claim, and although there be no tranfmu- 2 Wllf. Rep. ration of poffeflion, and the cognizor be in '9- of the old ufe, yet after five years it will operate as a bar to all claims whatever. If therefore a tenant in tail is difleifed, and the difTeifor levies a fine with proclama- tions, the tenant in tail having a prefent right, may defeat the fine at any time within five years after the laft proclamation has been made. But if he negledls to make his claim within that time, he will be for ever barred by the fine ; and if the tenant in tail dies before the five years are expired, his iffue will not be allowed a new period of five years to make his claim, but only fo much of the five years as was Shep. Ton. not paflfed in the life-time of his anceftor. ^°Rpp^ g^. With refped to the mode of avoiding a b. fine within the term prefcribed by the 0^3 ftatutc ftatute it will be pointed out in a fubfequent chapter. Of the fecoiid 342. By the common law perfons in jo-^ing, remainder and reverfion were frequently barred by the negled of the particular tenant to make a claim within a year and Ante C 25 7. a day after the fine was levied ; and this is commonly affigned as the only reafon for making the ftacute of Non-claim, but cafes of this kind are particularly provided for by the following claufe in the ftat. 4 Hen, VII. which is ufually called the fecond 4Hen. -. Saving: "And alfo faving to all other c. 24. f. 4. " perfons fuch adtion, right, title, claim, " and intereft in or to the faid lands, tene- " ments or other hereditaments as fhall *' firll grow, remain, or defcend, or come " to them, after the faid fine ingrolTed and " proclamations made, by force of any *' gift in tail, or by any other caufe or *' matter had and made before the faid " fine levied, fo that they take their aftion, " or puffue their faid right and title ac- " cording to law, within five years next " after fuch adtion, right, claim, title, " or intereft to them accrued, defcended, "fallen or come, 343- Ifi JFincisf. ^43. In confequcnce of this claufe all thofe to whom a right firft accrues, at any time after a fine has been levied, are allowed five years, to be computed from the day on which their right firfl accrued to make their claim. Thus if a tenant in tail makes a feoff- 3 Rep, 87. : ment, and the feoff^ee levies a fine, the S; , ' Plowd. 374. iffue in tail is within the fecond faving, and (hall have five years from the death of his father to make his claim and avoid the fine ; becaufe he is the firft to whom a right accrued and defcended after the fine was levied, for his father could not enter againft his own feofi^ment. In the fame manner if a tenant in tail Penyfton v. baro;ains and fells his eftate tail to a ftranger Lyfter, in fee, who levies a fine or it with procla- §q6. mations, the iffue in tail is within the fe- cond faving, becaufe the right firft accrued to him, as his father could not enter againft his own bargain and fale. 344. No perfon however is within the fecond faving, but he to whom, the right of avoiding the fine firft accrued, fo that thofc who claim under the perfon to whom 0^4 fuch fuch right accrutd, are only allowed fo much of the five years, as have not elapfed in the life-time of their anceftor. Plowd. 374. Thus it is laid down by Dyer and Catline 3 Rep 87. b. j.j^^j. j^^ tenant in tail be diffeifed, and the Cro. El:z. .... . 8cj6. difieifor levies a fine, the right of reverfing the fine firft accrues to, and attaches in the tenant in tail himfclf, fo that if he lets five years pals without impeaching the fine and then dies, his iffue will be for ever baried, for they are not within the fecond faving, becaufe the right firft accrued to their an- ceftor and not to them. The Tuft ices South cote and Weft on dif- fented from this opinion, and contended that every ilTue in tail fhould have five years, as a new right came to every one of them -per formam doni, which right, as they took it, the makers of the A61 in- tended to preferve, and to this purpofe the words, by force of any gift in tail, were put in the fecond faving. But this opinion was utterly difallowed by the faid chief juftices, who faid that the word /ry?, which ought to be added to the word dejcendy and then it would be, jhall firft dejcendy will not fufFer every defcent to have five years. Z i 345- I^ I iFfiieiff. ^-33 345. If a tenant in tail either of a legal Chap. XL or a truft eftate levies a fine, and five years '^^ — •-*-' pafs, and afterwardb the tenant in tail dies x°Ravm'^ without ifllie, the pcrfons in remainder or 151. reverfiori are within the fecond faving, and have therefo-e five years to make their clairi!, from the death of the tenant in tail without iflue, becaufe their right did not accrue until the determination of the eftate- tail. 346. If a tenant in tail difcontinues his Shep. Tou. eftate referving a rent, and dies, and the 33« iftue in tail accepts of rent from the dif- continuee, who afterwards levies a fine with proclamations, the acceptance of the rent by the iflue in tail, bars him from claiming the eftate-tail : but upon the death of the ilTue in tail, his iflue will have five years to avoid the fine, in confequence of the fecond faving, becaufe he was the firfl perfon to whom the right of reverfing the fine accrued. 347. In confequence of the ftatute Ante f. 19S. 32 Hen. VIII. c. 28. which has been fl:ated in a former chapter, a fine levied by a huf- band alone, of any lands which are the freehold and inheritance of the wife, fhall not 2J4 line^. Chap. XI. not make any difcontinuance, or be pre- *'*'^~ judicial to the wife or her heirs, but fhe or they may enter on the lands and defeat fuch a fine. Although the words of this 8Rep. 72. l\ A 61 are very general, yet if the hufband levies a fine with proclamations, and five years pafs after his death, without any entry or claim by the wife, fhe will not only be barred of her entry but alfo of her right ; for the objeft of the ftatute was only to provide againft the difcontinuance, which was a grievance peculiar to married women, but not to invalidate fines duly levied, as to miarried women, they having a remedy in common with others by entry or claim to avoid the fine. Befides though the words of the ftatute are general " that " fuch a fine fhall not be prejudicial to the " wife or her heirs", yet the following words, I'iz. *' But that llie may lawfully " enter according to her right and title " therein, are explanatory, and allow her *' an entry only in fuch cafes where Ihe had " a right before the ftatute." 348. If a married man levies a fine of his own inheritance, and five years pafs, his wife is not thereby barred of her dower, but is within the fecond faving of the ftatute. fines. fJatute, and will be allowed five years from the death of her hiifband to make her claim, becaufe her title to dower did not accrue until that period. Plowden was of opinion that in a cafe of PIo«-. -^73. this kind the wife was not bound to make "'^'■'" her claim within five years after the death of her hufband, but might claim her dower at any indefinite period of time; Sir Ed- 2 Rep. 93. a. ivard Coke fays the contrary was exprefslv Dnmpnrtv. determined in 4 Hen. VJII. and that deter- Dv-^r =20.. a. mination has ever fince been held to be 9 ^ »'^- '■^^• good law. 245 ■ 349. If the wife's title to dower does not accrue at the death of her hulband, but commences at a fubfequent period, flie will be allowed five years from the time when it accrued. A married man levied a fine with pro- Menvlll's clamations, and was afterwards indided '^^^^-^ ^^ and outlawed for hi^h . treafon. Some z tlawk. years after his death his heirs reverfed i\iz J*-^-c-49- f. 44. outlawry by writ of error, and then the wife claimed her dower. It was refolved that although more than five years had elapfed fince the death of the Chap. XL the hufband, yet the fine was no bar to *" ' ' her, becaufe as long as the attainder for treafon flood in force fhe could not claim her dower ; but as foon as the outlawry- was reverfed, a title to dower firil accrued to her, and therefore fhe was within the fecond faving, and had five years from the reverfal of the outlawry to purfue her rishr. 'b 350. If there be no perfon who has a ri^ht to make a claim, at the time when a fine is levied, and afterwards fome per- fon does acquire fuch a right, he will be a allowed five years from the time when he acquired the right of avoiding the fine to make his claim. Stanford's Thus where a perfon who was entitled «afe, cited j-q a term for years in reverfion expeiflant 10. >ac. I. Qj^ jjj^Q^j^jgj. j-ej^pj^ for years died; the firft term expired, the lefibrs entered and le- vied a fine with proclamations. Five years paflTed before adminiftration was granted of the efFeds of the perfon who had the reverfionary term. Ic was refolved that the adminiftrator was within the fecond faving of the flatute, and fliould have five years to purfue his right from the time ad- miniftration was granted, becaufe until then finciS. 237 T"hen there was no perfon who could Chap. XL claim. 351. Strangers to fines, having feveral ofpnfiK^ diftinai rights, by feveral tides, accruing Wv,^,-^- at different times, fhail have leveral pe- "s^ep y^j„^ riods of five years allowed theni to avoid 34, a fine ; that is, five years after the accru- ing of each title, fo that if a right accrues to aftranger when a fine is levied, which he negleds to purfue within the limited time, and another right accrues to the fame ftranger at any time after, he is then comprehended within the fecond faving of the ftatute, as to the new right, upon upon the principle that, quando duo jura in una perfona concurrunt ^quum eji ac fi ejfent in diverfis. This conftrudlion is certainly not con- 9 Rep. 105, fiftent with the letter of the ftatute, for \- . i lowd. ^7-. in confequence of the v/ords " other per- ** fons" it appears clearly to have been the intention of the ftatute, that no per- fon who was comprehended in the firft faving, fliould take advantage of the fe- cond i and in the cafe oi Stowell v. Zotuh, Dyer contended that this was the true con- ftru<5tion of the ftatute, but however the law 238 SfUU0. Chap. XI. law has always been held to be other- wife. T , Tenant for life levied a fine to a Tucker, ftranger, and the perfon in reverfion ne- Cro. IlIiz, ple61:ed to enter within five years after the 254. *^ , ■' 3Kep. 78.b. fine was levied, afterwards the tenant for life died. It was deternnined that the re- verfioner Ihould have another period of five years from the death of the tenant for life, to make his claim, for in this cafe two diftinft rights accrued to him., the firft upon the forfeiture which the tenant for life committed by levying the fine, and the fecond upon the death of the tenant for life. 9 Rep. 10-, 352. It Js laid down by Sir Edward b- Coke, that if a lefTee for years is oufted, and the perfon in reverfion difleifed, and the dilTeifor levies a fine with proclama- tions, both the leflbr and leflee are barred, if they do not make their claim within five years after the fine has been levied, and the leiTor will not be allowed another pe- riod of five years after the expiration of the term, to make his claim j becaufe the lefibr mfght have brought an afllze or other real aftion, immediately after the * 2 fine ffneef. 239 tine was levied, and being thus compre- Cliap. XI. hended within the firfl; faving, he cannot ^'-"'Y"**^ take advantage of the fecond. This doc- trine has however been fince contradifted and is not now held to be law. A lefiec for 21 years, who was feifed in FennGr's fee of .other lands in the fame manor, caO*, made a leafe for life of all the lands, and ^ '5^^^,' "^J'r levied a fine with proclamations of as many Jcak. 253. medLiages, Sc as comprehended not only the lands whereof he was feifed in fee, but alfo the lands which he held for years ; the leflce continued in pofTcfnon and paid his rent. Upon the expiration of the term, the lefiee claimed the inheritance of the land which he had held by leafe and would have barred the leflbr, by means of th-i fine and non-claim, but it was determine^ h^ all the judges that the leflbr fhouki have a new period, of five years from the expiration of the term, to make his claim and avoid the fine. 353. This determination is faid by Sir . v-n. -■, J ^ V (.ill* ^3*^ Edward Coke to have been founded on the circumftances of fraud which appeared in the cafe, the principal of which was that the leflce continued in pofleflion after he had had levied the fine and regularly paid his rent, fo that the leflbr could have no no- tice that a fine had been levied of his lands. But in other books the judgment I Vent. 242. is faid not to have been founded on the fraud which appeared in the cafe, but upon the conftru6lion of the ftatute; and the do6trine that where a IclTee for years makes a feoffment and then levies a fine, the leflbr need not make his claim within five years after the fine has been levied, but is allov/ed another period of five years from the determination of the term, was finally eftabliflied in the following cafe. Wlialey v. ^ leflee for years made a feoffment, and Tancred, then levied a fine j five years paffed, and 24./"^ the queflion was, V\^hethcr the leffor was T. Raym. barred by his non-claim during the five ^ Atk '71 years which elapfed immediately after the S. P. fine was levied, or fhould be compre- « hended within the fecond faving of the fta- ^ tute 4 Hen, VII. and be allowed another period of five years from the expiration of the term. The Court refolved that the leffor fhould have five years from the expiration of the term to avoid the fine, in the fame manner as if a lelfee for life had levied a fine ; the cafes being exaflly fimilar. 354. No 2^4. No per fen who is within the f.r'}. faving of the ftatiite ^ Hc?i. Vll. can be connprehended within the fecond Hwing, unlefs the fecond right which accrues to him is different from the firft, for if it is only the fanne right which accrues a fecond time, the non-claim for five years after the right firft accrued will be a good bar. A tenant in tail made a leafe for three lives, which was not warranted by the ftatute 31 Hen, VIII. c. 28. He then levied a fine and died without iflue. Five years pafled without any claim, but on the expiration of the leafe, the perfon in re- mainder entered. The Court refolved that he was barred by his non-claim dur- ing the five years which elapfed immedi- ately after the fine was levied, and fhould not have a new period of five years after the death of the leflee, becaufe he had no other title after his death than he had be- fore, for his title arofe upon the death of the tenant in tail without ilTue, when he might have brought his formedon. Salvin V. Cleric, Cro. Car. 156. W. Jones 211. 355. If lands are extended on two fta- tutes, and the perfon who is feifed of the land levies a fine, it devefts the eftates of Vol. I. R the Ii'ne0. the cognizees of fuch ftatutes, and the cog- nizee of the firfl flatute miift make his claim within five years after the fine has been levied, otherwife he will be for ever barred. But with refpecSt to the cognizee of the fecond ftatute, he need not make his claim until fatisfadlion has been entered upon record on the firft ftatute, becaufe that is the only proper determination of an extent, fo that he will have five years al- lowed him from that time to avoid the fine, by the fecond faving in the ftatute 4 Hen. 7. becaufe until then his right did not accrue. Dcigliton V. Thomas Lezvis being feifed in fee of the - Vcnt.r-. P^'C^^J^^s ^" queftion, acknowledged a fta- T Show. 36. tute for 1200/. to Jf'^illiam Knight ; he af- i Skin. 2 o. j-g^Y^^j-^js acknowledged another ftatute for 1 000/. to Richard Gerrard^ and another for 5000 /. to Sir James Ehves and Richard Burroivs ; execution was iued out on all thefe ftatutes, and the lands were extended. Thomas Lei'Sis, being in ai5lual pofTeflion, fold the lands for 4000 /. to John Lewis, and levied a fine of them with proclama- tions. John Leivis devifed the lands to his brother Edivard Lsivis, and the heirs male of his body, and for want of fuch ifi'ue to his his own two daughters. John Lewis died, and Edward Lewis being in adlual pofief- fion, levied a fine with proclamations, to the ufe of himfelf and his heirs, and died ■without ifTue, whereby the lands defcended to the two daughters of John Lewis, who entered, and having married the Earls of Huntingdon and Scar/dale, they alfo entered, and were feifed in right of their wives. Adminiftration to Burrows, the furviving cognizee of the laft ftatute, was committed to Ann, wife of the defendant Grenville, as to that ftatute and the extent thereon, and Grenville and his wife, who was alfo adml- nlftratrix to Gerrard the cognizee of the fecond ftatute, having acknowledged fatif- faftion upon it, and caufed it to be vacated, entered upon the Earls o( Huntingdon and Scarfdaky as adminiftratrix to Burrows, in whom the laft ftatute was vefted, and claimed the money due on it, whereupon the faid Earls brought an ejeftment in the Court of King's Bench in the name of Deighton, for the recovery of the lands. The queftion was, whether Grenville, a reprefentative to Burrows, the cognizee of the laft ftatute, which was a reverfionary intereft to commence after the determina- R i tiwn iTiiiciei. tion of Gerrard's extent, was barred by the fine of ^Thomas Lewis and five years non- claim, or was within the fecond faving of the ftatute 4 Hen. 7. and fhould be allowed five years to make his claim from the time when fatisfadlion was acknowledged oa Gerrard's flatute. The cafe was argued feveral times in the Court of King's Bench, and in ^Jac, r. judgment was given for Crenville, that Burrows's interefl was not barred by the fine. A writ of error was brought in the Exchequer Chamber, where the cafe was alfo feveral times argued. Mr, Juftice Vide 2 Vent. Vsntris contended that there was a very 333' great difference between this cafe and the cafe of reverfions on eftates for lives or years, ill, Eecaufe in thofe eitates there was either by an exprefs limitation of the parties or the operation of law, a certain end of the eftate beyond which it could nor Jad, and until which it was not properly determined, which an eftate held by extent has not. -id, Becaufe if a perfon who has a reverfion after an eftate held by extent, was allowed five years to make his claim after the extent was determined by a per- ' ception of the profirs, or an acknowledg- ment I ment of fatisfaflion on record, then a claim was Ice in after an cflate which no nnan could fee the end of, for no perfon could tell when an extent would be fatisfied by a perception of the profits, and much lefs whether fatisfaftion would ever be acknow- ledged ; whereas other eftatcs have a known and certain determination, fo that it would be impoffible to tell within what fpace of rime a poflcITion could be quieted, and thus the great end of the ftatute of fines would be defeated. 3d, Becaufe it would be in the power of the party who had the extent, to protraft the time as long as he pleafed, for until he thought proper to bring a fcire facias ad compulandumy the ftatute would never be fatisfied, fo that it would be in the power of a liranger to make the eftate of a perfon who was in poffeflion un- der a fine, liable to a future claim as long as he pleafed. The judgment of the Court of King's Bench was reverfcd by a majoriiy of fix Judges againft two. Bur that Court re- fufcxl to award execution, becaufe there was a miftake in the writ of error, upon which a nev^ wiit of error was brought, whereon the judgment Vv'as affirmed for G'^'eirSillcy R 3 there jffnC]S(. there being three Judges for reverfing, and three for affirming, and a majority be- ing required to reverfe the judgment, it W4S of courfe to Hand. .y. S. cafes m ^ ^j-j^ of error was then brous-ht in the tbe Ho.:/e oj- . ^ lords, Houfe of Lords, where it was contended on the part of the plaintiff, that Mr. Gren^ mile could not, by acknowledging facisfac- tion on Gerrard's ftatute, gain any new right to enter to avoid the fine levied by Edward Lewis above nine years before, by which, and by five years non-claim, her intereft in the laft extent was barred, becaufe an en- try might and ought then to have been made into the extended eftate, and the con- trary opinion would tend very much to weaken the fecurity of a fine and non- claim, which is the highefl and belt fecuri- ty in the law for quieting people in their eftates, and preventing fuits ; and it would therefore be of very pernicious confequence to all purchafers and owners of eftates, if fuch old dormant incumbrances were fet up againft a fine and non-claim, and fup- ported by fuch a method as the vacating a Itatute long before extingiiiflitd, for there- by eitaces might be incumbered, which ha(i had been long enjoyed without Interrup- Chnp. X[. tion. On the other fide it was argued for the defendant, that it was not neceflary to make any claim upon Burroivsh flatute, until Gerrard's ftatute appeared upon re- cord to be fatisfied, and fo a claim made by the defendant by entry upon the premi- fes, within five years after fatisfaflion enter- ed upon record, on Gerrard's ftatute, was fufficient to prevent Buitows's extent from being barred by the fine. That this cafe did not differ in reafon from the common and known cafe where yl. tenant for life, remainder in fee to B. is difTeifed, and the difleifor levies a fine, and there is five years non-claim, though the eftate of tenant for life be barred by this five years non-claim, and the remainder man may if he plcafe enter upon the five years non-claim by tenant for life; yet he may waive fuch en- try, and will have a new period of five years after the death of tenant for life, to make his claim ; lb although Biirrozvs might, if he had pleafed, have entered upon the five years non-claim by Gcrrnrdy yet he might itay and expect until faiisfaftion was enter- ed upon the record of Gerrard's ftatute : R 4 for for as the death of the tenant for life is the properand natural determination of an eftate for life, fo the entering fatisfadion upon re- cord, is the proper and natural determina- tion of an extent upon a ftatute, and in the one cafe as well as the other, before fuch determination, the remainder man or re- verfioner is not compellable to m.ake his claim to avoid the fine. 26tli ApvU, The judgment of the Court of King's 1699. Lord.' ^^^ch was affirmed (a). Journals, vcl. p. 45+. Althoue;h the ftatute 4 Hefi. 7, i'lowd. 538. , ^ . u r- rr cJ^ does not extend to the pofiefnons of the church, yet in cafe abifnop, dean, vicar or prebendary, fliould negled: to make his claim within five years after a fine was le- vied of an eftate to which he was entitled, in risht of his biihoorick, &;c. he will be barred during hh life, but his fuccellbr will be allowed five years to avoid the fine, from the time of his becoming entitled to the lands. Idem. 357. In the fame manner, all thofe who have offices for life, to which lands and te- nements are annexed, muft make their (a) This appeal to th.eHouie of Lords is not men- tioned in any of the Reporters. claim claim within five years after a fine has been Chap. XI. levied of fuch lands and tcnennents, other- '»-''V"*»^ wife they will alfo be barred during their lives. But each fuccelTive officer will be allowed five years to avoid the fine, from the time when he becomes entitled to the lands. 358. If the ellate which paflTed by a fine P)ovvd.358. is at any time afterwards defeated, the fine ,^/"f' 5'^" ^ Weft. Symb. will by that means lofe all its force and ef- p. 2. 73. a. fedV, not only with refpeft to the perfon wh* avoided it, but alfo with refpeft to all other perfons, except thofe who claim by force of an intail. Thus it is faid in the piowd. 359. cafe of Sto-zi-eli v. Zotfcb, that if there be tenant for life, remainder for life, remain- der in fee, and the firfl: tenant for life aliens, and the alienee levies a fine,.the per- fon in remainder for life may enter and defeat the fine, in which cafe it will not bar the remainder man in fee. 359. By the common law, and alfo by Ofthrexcep- the ftatute de mcdo levandi fines, all thole or'^lfavcnSc. •who laboured under certain difabilities at i>aa. ). 5. c. the time when a fine was levied, were not i?^'^^^\' (^ <._ afi^efled by it; but they or their heirs 54 2 Inil. might avoid it, at any diftance of time. 5' • This 2 50 Imeis. Chap. XL 'j-j^jg (jo(51:rIne was altered by the following claufes in the flatute 4 Hen. 7. — " And if the fame perfons at the time of fuch ac- tion, right and title accrued, defcended, remained or come unto them, be covert de harcn, or within age, in prifon, or out of this land, or not of whole mind -, then it is ordained, &c. that their a(flion, right, and title be referved and laved to them and their heirs, until the time they come and be at their full age of twenty-one years, out of prifon, within this land, un- coverr, and of whole mind; fo that they or their heirs take their faid adions, or their lawful entry, according to their right and title, within five years next af- ter that rhey come and be at their full age, out of prifon, within this land, un- coverr, and of whole mind j and the fame actions purfue, or other lawful en- try take, according to law. Sea. 6. ''^ And alfo it is ordained, &c. that all " fuch perfons as be covert de haron^ not *^ party to the fine, and every perfon being " within the age of twenty-one years-, in " prifon, or out of this land, or not of " whole mind, at the times of the faid fines " levied and ingroffed, and by this faid adl •' afore " afore except, having any right or title, Chnp. XL " or caufe of aiSlion to any of the faid lands ' " ' *' and other hereditaments, that they or " their, heirs, inheritable to the fame, take •* their faid adions, or lawful entry, ac- " cording to their right and title, within ** five years next after that they conne and " be of age of twenty-one years, out of " prifon, uncovert, within this land, and of " whole mind, and the fame adions fue, or " their lawful entry take, and purfue ac- ** cording to the law ; and if they do not " take their a6lions and entry as is afore- " faid, that they, and every of them, and " their heirs, and the heirs of every of " them, be concluded by the faid fines for ** ever, in like form as they be that be par- " ties or privies to the faid fines." 360. In confequence of thefe two claufes, all thofe who labour under any of the difa- bilities therein fpecificd, either at the time when a fine is levied, or v/hen a right to lands whereof a fine has been levied firft accrues to them, are allowed five years from the removal of tlieir difabilities to make tlieir claim. 36^- ^^ ■2 $2 jrinc0. Chr.p. XI. 361. If an infant be in his mother's '^^^''^ womb when a fine is levied, he will be al- Plowd. 3fcb. jQ^ygf] ^yg years from the tinne he attains his full age to make his claim : for altho' he is not comprehended within the letter of the zct, which only mentions infants un- der the age of twenty-one years, and there- fore does not extend to thofe who are un- born, yet they are within the intention of the ad, and will be aided by the excep- tion. P!owd.375. 562. If a perfon labours under feveral 1 Leon. 215. (jifabilities at the fame time, as if a woman is covert, under age, of infane mind, and in prifon at the time when a fine is levied, or when a right to lands whereof a fine has 2 A'k. 614. been levied accrues to her, and one or more of thofe difabilities are removed, ftill the five years given by the flatute will not commence until after all her difabilities are entirely removed. PJowd. :y66. 363. It is ftated by Plowden^ in his re- port of the cafe oi Stowellv. Zouchy that it Vv'as afllrmed by many of the juftices, and denied by none of them that he heard, that although the perfons comprifed in the ex- ceprion were not under fuch defefts or im- pediments iFinc0. 253 pediments at the time of the tine levied, chnp. XI. but became To againft their will, after the v.-'^v-^*-' fine levied, and before the laft proclama- tion, and v/ere in fuch degree at the time of the laft proclamation, they iliall not be bound to five yeais next after the laft pro- clamation, but they fhali have five years next after their impediments or imperfec- tions removed. 364. It was alfo faid in the fame cafe Plowd. 3.C6. by Brown and Saunders, that if a ilranger to a fine who is of found mind, becomes non fana memorue, or is imprifoned the third year after the proclamations made, and fo continues until the five years are ex- pired, and afterwards he becom.es of found mind, or is out of prifon, he Ihall not be concluded by the fine -, for laches in pro- fecuting his right cannot be imputed to him who v/ants liberty or memory, and therefore fuch perfon is not comprehended in the intent of tlie ftritutr. But in this cafe if a ftranger to the fine in the third year had gone beyond fea, or had taken hulband and fo had continued, until the five years were pafied, there he fhould be bound ; for the going beyond fea, or rak- ing hufband, are voluniary ;ids, but infani- ►4 ^^' ty of mind, or Imprifonmenr, are againft the will of the party. Vide Doe ex 365. The doftrine laid down in the laft: fecftion has been exploded by two modern , T-» cafes, in which it has been laid down as a V. Jnnes. rule, that when once the five years allowed 47crni Rep. j.^ perfons labourino; under difabilities, to B. R. 300. ^ , . , . avoid a fine begin, the time continues to run, notwithftanding any fubfequent difa- bilitv. Plowd. 375. 366, It is faid by feme of the judges in the cafe of Stoivell v. Zotichj that if a perfon whofe defeds or impediments are once re- moved, falls within a month afcer into the fame defecfts or impediments again, and continues fo all the five years, or at the end of the firft month of the five years dies, his heir within age, the five years before commenced fliall proceed, and non-claim within the fame five years fhali bind the party and his heirs, as well as if he had been void of all defers or impediments during the whole five vears. Plowd 366. 367. Akhough the ftatut^ 4 J/*?;?. VII. 1 Leon. 215. ^]1q^vc; infints five years after they have at- tained thc'ir full 3ge, to make their claim, yet yet an Infant nnay if he pleafes, make his clainn before he attains that age. 368. The privileges of infancy, cover- ture, &c. are only given to thofe to whom a right firft accrues, and in whom it firft attaches; for if a perfon to whom a right firft accrues dies before the expiration of the firft five years which are allowed him to make his claim, and fuch right defcends upon his fon or heir at law who is then under age, or labours under any of the other difabilities mentioned in the a6t, ftili fuch fon or heir muft- make his claim be- fore the five years are expired, which com- menced in the life-time of his anceftor, otherwife he will be for ever barred, be- caufc the right did not firft accrue to him, but to a perfon who was not under any difability. John Stoivell being fcifcd in fee, was dif- stowell v. fcifed by John Zcnch^ who levied a fine ^f^^ch. with proclamations. Three years after the jenJ!, ^^nt. fine was levied, John Stoivell died, without 6» cafe 74. having made any entry or claim to avoid the fine, leaving his grandfon and heir at law, Thomas Stowell, the demandant, an in- fant of the age of fix years, who made no claim 25^ ^U\t0* Chap. XI. claim during his minority, but entered on the lands within one year after he had at- tained his full age. It was determined by a great majority of all the judges in the Exchequer Cham- ber, after many folemn arguments, I. That 'Thomas Stowell being a ftranger to the fine, was clearly barred by the body of the a(5t, unlefs he would take advantage of the exception in favour of infants, &c. and that he was not within the exception, becaufe it only extends to fuch infants, &c. to whom a right accrues at the time when a fine is levied : whereas in the prefent cafe, no right accrued to Thomas Stowell at the time when the fine was levied, his grandfather being then living. "2. That Thomas Slo-ivell was originally within the firft faving of the ftatute, as heir to his grandfather, to whom the right firft accrued, being included in the words *' favinp^ to every perfon and perfons, and " CO their heirs ;" but not having purfued his remedy within the time prefcribed, he could nor now take any advantage of the firft faving: and, with refped to his infancy at at the time of his grandfather's death, it could be of no fervice to him, becaufe the llatute only gives the privilege of infancy to thofe to whom a right firft accrues : but where a right firfl accrues to a ftranger who is of full age, and the five years begin to run, if fuch ftranger dies before the ex- piration of the five years, leaving his heir under age, the heir can have no privilege of infancy, but muft make his claim be- fore the expiration of the five years, which began to run in the time of his anceftor. 3. That Thomas Stowell was not within the fecond faving, which preferves to all other ferfons fuch right, title, &c. as fhall firft grow, remain ordefcend to them after the faid fine ingrofTed, for feveral reafonsj I ft, Becaufe, in confequence of the words other ferjons^ this faving only extends to thofe who are not comprifed in the firft, and it was not the intention of the afl to aid thofe perfons in the fecond faving who are comprehended in the firft. 2d, The words, firft grow, remain, or defcend, only extend to the perfon in whom the right firft attaches after a fine is levied; whereas no new right accrued to Thomas Stowell after the fine was levied, his only title being as Vol. L S heir filter. heir to his grandfather, in whom the right attached when the fine was levied. Cftfe of per- ^g^. \( a Derfon to whom a right accrues fans dyin% uti' 111 /• ,- 1 i 1 • 1 der their difa- ^^ lands whereof a fine has been levied, hilities. labours under any of the difabilities, fpeci- fied and excepted in the ftatute4Ht'».VII, and dies before his difabilities are removed, it feems to be a doubtful point whether the heir of fuch a perfon be obliged to make his claim within five years after the death of his anceftor, or be allowed an in- definite period of time for that purpofe. zlnft. 519. This doubt arifes from a difference cf I Leon. 211.* opinion between Sir Edward Coke and An- Sav. 128. derfon-. Sir Edward Coke^ in his report of the cafe of Sunie v. Howes, ftates that Tho- mas Cotlon being tenant in tail of a moiety of certain lands, and tenant for life of the , other moiety, with remainder to IVilliam Cotton, his eldeft fon in tail, William Cotton went to Antwerp. Thomas Cotton levied a fine with proclamations of all the lands, and William Cotton died foon after at Ant- "Lverp,^ without having ever returned to England, leaving a fon under age, who en- tered on the lands. It was adjudged, that as to the moiety Y/hGrto( Thomas Cotton was tenant tenant in tail, IVilliatn the fon of William was barred by the flatute 4 I^en VIT. But as to the other moiety whereof Thomas Cotton was only tenant for life, the entry of William- the grandfon was lawful, and avoided the fine j for although William the fon could not take advantage of the claufe which faves the right of thofe who are be- yond fea, provided they make their claim within five years after their return, becaufe William the father never did return, yet as perfons who are out of the realm at the time when a fine is levied, having a pre- fent right, are excepted out of the body of the aft, which makes the bar, therefore where a perfon was beyond fea at the time when a fine was levied, and never return- ed, he was within the exception made in the body of the ad, and his heirs might make their claim at any diftance of time. That it was the fame where an infant, not being a party to a fine, and having a pre- fent right, died during his infancy, his heirs might make their claim at any diftance of lime. That the fame doctrine took place with refpe6t to a man non compos^ who died in that fituation, or a man in prifon who died before he had recovered his liberty, or a married woman who died in the life- time of her hufband ; for all thefe were within the reafon adjudged, of a perfon^whe was out of the realm, and never returned. It is alfo laid down by Sir Edward Coke, 4 Rep. 1 25. b. ifi Beverley ^ cafe, "^hat if a man levies " a fine with proclamations, and at the ." time of the iine levied, he who has a ** right is 7ion compoSt and afterwards he re- " covers his memory, in this cafe he ought ** to purfue his a6lion, or make his entry, r " within five years after he becomes of ** found memory ; and in fuch cafe, in ** pleadinpr, he fhall (hew, that, at the time " of the fine levied, he was non compos men- " tiSi and all the fpecial matter: but if he who '^ has fuch right is an ideot, or non compos *^ mentis^ and never recovers his memory, " the heir may have his aflion, or make his *' entry when he will ; for he is excepted " out of the body of the adt, and is not ** bound to make any entry, or bring his " aftion within any time : but the party " himfelf, if he recovers his memory. The *' fame law, if he who is beyond fea at the ** time of the fine levied, and dies, there " his heir may enter, or bring his ad:ion " when he will." Coron'3 In Leonard's report of CcttorCs cafe, it j' Leon. 2 i I. was held; that as to the moiety whereof Sir Thomas Thotftas Col/on was tenant for life, the fine was no bar, but that IVilliam the grandfon might enter at any tinne within five years after he attained his full age, for TVilliam his father was not bound by the flatute 4 Htn, VII. becaufe he was beyond fea at the time when the fine was levied, and never returned ; but that, by the equity of the ftatute, his iflTue ihould be allowed five years to make his claim, from the time he attained his full age. And Jnder/ony Chief i Leon. 215 Jullice, is reported to have faid, that al- though IVilliam the father died beyond fea, yet if his Ton did not make his claim within five years after the death of his fa- ther, being of full age, and without im- pediment, he fhould be for ever bar- red («) . I have not been able to find any other cafe in which this point has arifen, exceft that of Hulm v. Heylock, which has been already dated, where the Court concurred Antef 319. in opinion with Anderfon: but as that cafe (^) It is obfervable that Amlerjon himfelf has re- ported Cpttonh cafe, (part i. page 264,) but no fuck didum is mentioned by him. S3 was ^6i ^inz0> Chap. xr. was determined without being argued, *" — ' — ^ it cannot be much relied on as an autho- rity. 370, As the opinions both of Sir Edward Coke and Anderjon on this point were deli- vered ohiter and in the courfe of argument only, and as this queltion has (I believe) never been judicially determined, it may not be improper to add fome obfervations on it. In the firft feftion of the ftatute 4 Hen, VII. it is enadled, " that a fine fhall con- ** elude as well parties as ftrangers to the " fame, except women covert (other than *' be parties to the faid fine) and every per- *' fon then being within the age of 21 ysars, " in prifon, Sec." And by the fixth fedion : of the fame ftatute it is enaded, " That all " fuch pcrfons as be covert de barony i^c, •' at the time of the faid fines levied, &c, " having any right or title, &c. That they " or their heirs inheritable to the fame '* take their faid a6lions, &c. within five *' years next after they come and be ©f the " age of 21 years, out of prifon, &c. And " if they do not take their adions, &c. as " is aforefaidj then they and every of them " and . ifinessf. 2£^ " and their heirs be concluded by the faid Chap. xr. " fines for ever." ^^ ^ u To fupport the opinion of Anderjon the words '' that they or their heirs inheritable " to the fame take their faid adions, ^f." and the words " if they do not take their ** anions, tf^." muft either be conftrued to extend to the heir of an anceftor who dies under his difability, or elfe it muft be admitted that this is a cafe not provided for by the ftatute. Upon the latter fuppofition the only ar- gument that can be urged is that as the original object of fines was to prefcrve the peace and quiet of the kingdom by extin- guifliing all dormant titles, and as the in- tention of the ftat. 4 Hen. VII. was to re- vive the dodrinc of non-claim, that fta- tute ought to be conftrued in fuch a man- ner, as to render a fine a compleat bar to every right and claim which is not profe- cuted within five years after it accrues, and fo as not to allow in any cafe what- ever the exiftence of a right to avoid a fine, ai an indefinite period of time. On the other fide it may be faid in fup- port of Sir Ed-jcard Coke\ opinion that the S 4 ftatucc ftatute 4 Hen. VII. being in fad a ftatute of linnitations ought to be conftrued ftridt- ly J that if no faving had been added to the ftarute, ic is clear that all thofe who had a right at the time when a fine was levied, and who were then under cover- ture, infants, &c. would have been com- prehended in the exception contained in the firft fedion of that ftatute and there- fore would not have been at all affedled by it. That the words, they and their heirs, in the fixth fedion, were inferred merely with a view to the cafe of perfons whofe difabilities fhould be removed, but who fhould die before the expiration of the five years allowed them for making their Vide Stowell claim, in order to confine their heirs to V. Zouch, ^^ much only of the five years as was not expired in the life- time of the perfons whofe difabilities were removed, and to prevent them from claiming a new period of five years (^). {a) In a colledion of opinions lately publlfhed is one given on this point by the late Mr. Booth, in which he concurs with Sir EJivard Coke in maintaining that where a perfon dies under his difabilities, his heir may enter at any indefinite period of time. Cefes fad Oj^wions Vol. I. p. 423. Judge Judge Jenkins appears to have agreed Chap. XT. with Sir Edward Coke on this point, for ^-**V"*' . ^ ■ r r I , Cent. 4. ca. he lays " an infanc or a perlon beyond the 07. " fcas or in prifon is difieifed, and the *' difleifor levies a fine of the land with ** proclamations and five years pafs after- " wards ; they being beyond fca, within *' age or in prifon, and dying under thefe " innpediments refpeftively j during thefe ** impediments their heirs are not bound " by the fine, for they are excepted, and ** there is no provifion made in the ex- ** ception that the faid heirs fhall enter, or " claim, or bring their a(5lion within five " years after the full age or liberty of fuch " heirs. See the provifion in the cafe of " the limitations of a<^lions by 21 Jac. i, " c. 16. for this poinc," The general intention of the flatute of Limitations is precifely the fame with that of the ftatute 4 Hen. VII. In both, a non- claim for a certain number of years, is de- clared to be a final bar, and the fame ex- ception is made in favor of perfons under age, t^c. But in the claufe whereby per- fons thus excepted are direfled to make their claim within a certain time after the removal of their difabilities, the flatute of Chap. xr. of Limitations runs thus : " So as fuch » — , — I " pcrfcn and perfons, or his* and their heir " and heirs fhall, within ten years next " after his and their full age^ difcoverture, " coming of found mind, enlargement ©ut " of prifon, or coming into this realm, or " deaf h J take benefit of, and fue for the " fame, and at no time after the faid ten " years. To this claufe Jenkins evidently alludes in the pafTage above quoted, and from the difference which is obfervable between the two flatutes, by the infertion of the words " or deatb'\ in the ftatute of Limitations, he feems to have formed his opinion, and agreed with Sir Edzvard Coke ; the infer- tion of thefe words {hews that the Legif- lature were aware of the difficulty in the ilatute 4 Hen. VIL where the perfons ex- cepted out of the body of the Afb died under their difabilities, and took care in the ftatute of Limitations to guard againft it, by exprefs words (a) {a) The flatute lo & 1 1 W. 3. which enai^s, that ro writ of error fhall be brought to reverfe a fine af- ter 20 years has a faving for infants. Sec. in which is inferted the words ^* or death''^ in the fame manner 7» ill the ftatMts of Limitations. Vide infra. JFfllCSj. 267 CHAPTER XII. Of fome other EfFecfts of a Fine. 371. rr^HE operation of a fine Tre- Af.ne/ime- A quently depends on the parti- ^''''" '^/"l"' cular fituation of the cognizor or cognizee, refpefting the property of which ic is levied. Thus if one joint-tenant levies a fine to his companion it will operate by way of releafe. John Stile and Sufan a feme fole v/ere Euftace v. ioint-tenants for life, Sufan married, and 5"^^"' Ihe and her hufband granted by fine to 696. John Stile tenementa pr^edi^a et totum et qiiicquid hahent fro termino vita fradi^l^e Siijany i^c. The queftion was, whether this fine fliould enure by way of grant, or releafe, and it was refolved that it lliould enure by way of releafe. 372. If one co-parcener in tail levies a 1 ln.1. zoo. fine to another//^r cognizance de droits i^c. it docs not enure by way of releafe, but by b. n. I. JFineg?. by way of grant j and it will be a difcon- tinuance and alteration of eftate, without execution, becaufe one coparcener may enfeoff another, and a fine is a feoffnaenc of record. Confirmation. ^'] 2- A fine may alfo operate as a con- firmation of a former eftate, which was before defeafible, Seymour's Thus if a tenant in tail bargains and fells ' "^ ' his eftate-tail in fee, and then levies a fine to the bargainee, the fine will operate as a confirmation of the edate which paffed by the bargain and fale. So if a tenant in tail makes a leafe not warranted by the ftatute, confefles a judg- j Ab. Eq. ment, makes a mortgage, or incumbers ^'^"^sT- Ak his eftate in any other manner, and after- 19 V in. Ad. J ' 558. wards levies a fine, it will operate as a ^ '^^' " ' confirmation of all his prior charges and 3 '4- . , *^ ° incumbrances. Holbeachv. In the fame manner where a tenant for ;mi eacii, jj^ ^^^ j^^ remainder-man in tail join in Winch. 102. ^ J granting a rent-charge in fee out of the land, and afterwards join in levying a fine to another perfon ^ the rent which was was before determinable will be confirmed Chap. Xir. by the fine. * ' ' 374, The operation of a fine levied by Afmrlctsm a tenant in tail who has the immediate re- '''^^ /"','>« and makes it verfion in fee in himfelf is to merge the UabU topiior eflate-tail, and bring the reverfion in fee '«"'''^'^«^^^- into immediate poflefilon, by which mean»s it will become liable to the incumbrances of all thofe who were feifedof it. So that i Atk. 5. if a tenant in tail with the immediate re- verfion in fee in himfelf, makes a leafe, acknowledges a judgment, or incumbers his eftate in any other manner, and his heir levies a fine, it will op-^rate as a con- firmation of the leafe or iudf^ment, A perfon who was tenant in tail, with S\'monds v. remainder to himfelf in fee, made a leafe Cudmore, to commence in futuro, and died before ^ i;.l\^' Hii' the time when it was to commence, leav- 4 Mod. i. ing iffue a fon, who feme time after the death of his father, and before the com- mencement of the leafe, levied a fine. It was agreed by the whole Court, that the remainder in fee was chargeable with the leafe, and that it would have been a good charge on the remainder in fee, in cafe the tenant in tail had died without ifili". In 2/0 ' jfincK?. Chap. XII. It was alfo held, that the eftate-tail was "^ ^ ' extinft by the fine, as much as if the te- nant in tail had died without iffiie. i. Be- caufe two eftates in fee immediately ex- pe<5lant one upon another cannot fubfift in the fame perfon. a. Becaufe by the ftatute 32 Hen. Vill. a fine is declared to be a bar and difcharge of the .eftate-tail. 3. Be- caufe the ftatute of JVefim. 2. having made eftates-tail a kind of particular eflate, when the protedtion of the ftatute is taken away by the fine, they are, like all particular cftates, fubjed to merger and extinguifti- menr, when united with the abfolute fee. 375. Where a fine operates fo as to bring the reverfion in fee into pofleffion, it will not only fubjecl fuch reverfion to the debts and incumbrances of the perfon levy- ing the fine, but alfo to the debts and in- cumbrances of all thofe Vv'ho were intitled to fuch reverfion prior to the perfon who levies fuch finej becaufe a reverfion is afiets whenever it comes into pofleffion. Earlof^h-I- Chrrrks Lord Shelb urn e, being tenant in burne V. tail-male of the laods in qucftion, wirh re- Bidtmiph, niainder to his brother Henry in tail-male, 4 brown . . -^ . 59-f. rem.aindcr to his own right heirs J demifed them riiem for three lives, with covenants for perpetual renewal. Charles Lord Shelburne died without Iffue, by which means his brother Henry became intitled to an eliate in tail-male in the premifes, with the reverfion in fee in himfelf. In the year 1697, Henry Lord Shelburne levied a fine ofthofe lands, and in confideration of his inarriage fettled them on himfelf for life, with remainder to his firfl: and other fjns. The lefiTees having claimed a renewal on the death of fome of the perfons for whofe lives fhe leafes were granted, Henry Lord Shelburne refufed to renew, alledging that as his brother Charles was only tenant in tail of the lands comprifed in thofe leafes, he had no power to make them, and that he was not bound by the covenants for renewal. The Court of Exchequer in Ireland dc- creed, that Henry Lord Shelburne fhouid renew thofe leafes. From this decree there was an appeal to the Houfe of Lords, and on behalf of the appellants it was argued, thac tenant in tail at law, independant of the ftatuce 32 Hen. VIII. had no right to make a leafe abfolutely to bind the iifue in tail. tail, and much lefs the remainder man: and that even by that ftatute, a tenant in tail has no power to grant leafes to bind thofe in remainder, and therefore the leafes in queftion were abfolutely void, as againft the appellant, who did not claim under Lord CharleSi or as iffue in tail, but as re- mainder man. That the eftate tail, out of v;hich the leafes firfl: arofe, being fpent, and the appellant not claiming under it, but by a diftind limitation to himfelf in tail male, his fine could not let in Lord Charles's leafes upon that eflatc, -which came in lieu of the Earl's eftate tail ; nor could it by confolidating the two efl:ates, lef them in upon the reverfion j both be- caufe the Earl acquired a new eftate, and becaufe the ufes of the fine were never de- clared to him in fee, but direflly to the ufes of the fettlement, by which, in confi- deration of his own marriage, the Earl had an eftate for life only, with remainder to his firft and other fons j and thefe eftates arofe and were granted out of the eftate tail which the Earl had before the fine, and not out of the reverfion. On the other fide, it was contended, that by the fine which Earl H{;mj levied in 1697, 1697, the eflate tail limited in remainder Chap. Xii. to him was barred and extinguifhed, in the fame manner to all intents and purpofes, ais if he. was dead without iiTue ; and the re- yerfion in fee which defcended to him as heir of Lord Charles y immediately took effe^l, in pofleflion. And as the new ufes in the marriage-fettlement of 1697 arofc out of that reverfion in fee, they were there- fore fubjedl to all antecedent incumbrances and engagements which could affeft that reverfion. That as this reverfion in fee, after it had taken effed in pofTefTion by means of the fine, was fpecifically bound by the covenants for perpetual renewal; and as fuch covenants are confidered as re- al agreements, and go with the land, fo they are in their nature proper for a fpecific performance, and would in equity affed the legal intereft of all thofe, who take the eflate with notice of them. That all thofe claiming under the fettlement of 1697 had notice of thefe Icafes and covenants, and were as much bound by an equitable lien upon the lands, as Earl Henry himfelf, efpe- cially in favour of leffees who had made very great improvements, and were there- fore to be confidered as purchafers of the right of renewal. After hearing counfcf Vol. I. T on on this appeal, the following queftlon was put to the Judges, viz. " Whether by the ** fine levied by the appellant the Earl of " Shelburnei in Eajler Term 1697, the rc- ** verfion in fee of the eilate in queftion " was let in, fubjeft to the leafes in quef- *' tion, made by Charles Lord Shelburne, «* and the covenants therein contained for '' a perpetual renewal ?" And the Lord Chief Juflice of the King's Bench having delivered the unanimous opinion of the Judges to this efFeft, viz. " That the ** leafes for lives now in being were good " and effedual, as being ferved out of the *' reverfion in fee, which Lord Charles had " when he made them, and which was now " in Lord Henry ; and that the covenants ** for renewal were binding on Lord Henry, " as a lien on the fame reverfion, which he " had let in by barring, difcharging and " extinguiflilng his eftate tail :" It was therefore ordered and adjudged that the appeal fhould be difmifled, and the decree therein complained of, affirmed. 376. In the fame manner where a per- fon is tenant for life, remainder to his firft and other fons in tail, with the reverfion in fee in himfelf, and becomes indebted by bond. bond, or incumbers the eftate In any other manner : if, after the death of fuch a tenant for life, his fon levies a fine, it will let in the reverfion in fee, and make it li- able to his father's incumbrances. I'homas Belahay on his marriage fettled Kinadon v. his eftate on himfelf for life, remainder to ^'T'f' his wife for life, remainder to his firft and other fons in tail male, remainder to him- felf in fee. There was ifTue a fon. 'Thomas the father died, indebted by bond, and the ioa afterwards died without ifTue. The queftion was, whether the reverfion in fee, which was come into polTefTion, fhould be afTets to pay the bond debt of the father. Lord Hardwicke was of opinion that this reverfion was affets, and his Lordfhip faid, " indeed the fon might have fuffered a re- " covery, and barred the reverfion in fee, " and there the father's creditors would *' not have come in ; if he had levied a *' fine only it would have barred the eftate " toil, but the reverfion in fee would have " been liable." 377. A fine being a judgment obtained Ejleppcl. by confent in a fi(5litious fuit, and recorded * ^f'^^-S)^- «• in a court of juftice, all thofe whg are par- T a tics ties to it, and their heirs, are for ever con- cluded from averring or proving any thing againft it, and therefore it operates towards them as an eftoppel upon record. Shep. T. 14. Thus, although a fine levied by perfons who have not an cftate of freehold in the lands, is void as to all flrangers ; yet it will operate as an eftoppel againft all the parties to it. So if two perfons are feifed in fee, and a ftranger levies a fine to them, and to the heirs of one of them, the other will be thereby eftopped from claiming any thing more than an eftate for life in the lands, 378. A contingent remainder may, be- fore it vefts, be barred by a fine, which will operate as an eftoppel, fo as to bind the in- tercft that may afterwards accrue by the contingency. Weale t. Lower. Pollexf. 54. Fearne 287. A. made a feoffment to the ufe of him- felf for life, and after the death of himfelf and M, his wife, to the ufe of B. his eldeft fon for life, and after the death of A. M. and B» to the ufe of 5. and the heirs males of his body ; and for default of fuch iflue, to the ufe of the right heirs of B. B. had i'ffue a daughter, and then by fine and deed t granted iffncier. granted the premifes to D. for 500 years, to commence after the death of J. B. died, M. died, and A. furvived. It was held that the eftate limited to B. was a contingent remainder, for the particular eftate was only for the life of A. whereas JS.'s eftate was not to commence till after the death of A. and M. And although B, levied the fine for 500 years, and died be- fore the contingency happened on which his remainder was to arife, yet, when the contingency did happen, his heir was bound by the fine ; and the term for five hundred years limited by the deed to D. took place; for it was agreed, that the contingent re- mainder defcended to his heir, that the fine operated from the beginning by conclufion, and although it pafled no intereft, yet that it ftiould operate as an eftoppel, and bind the heir. 379, Lands were devifed to A. and C. Vick v. Ed- and the furvivor of them, and the heirs of Tr*'^'^'*' ^ ^* Wins 377, fuch furvivor in truft to fell ; the eftatt was V^-^'c Fearae decreed to be fold; and it being referred f/n^. , , to the Mafter to fee whether thf pirties a. n. i. could make a good title, the Mafter re- ported that the parties could not make a good title, there being no fee fimple in the T3 truftees; jfitteisf. truftees ; for the remainder In fee was con- tingent, it being uncertain which of the two truftees would be the furvivor. Ex- ceptions being taken to theMafter's report, the Lord Chancellor held, that the truftees, by levying a fine, could make a good title to a purchafer by eftoppel ; and his Lord- Ihip cited the cafe of Weale v. Lower, where a fine was adjudged to pafs an eftate not vefted by way of eftoppel, and to con- vey an intereft which accrued afterwards. Forfeiture, Z^o. Whcrc 3 pcrfon who is only tenant I init. 251.5. fQj. jifg, levies a fine fur cognizance de droit Glib. Ten. c. • •„ r r • 38. Free, in conie ceo, osc. It will operate as a forfeiture Ch. 591. of his eftate, becaufe it is an attempt to create a greater eftate than he can lawfully convey, and a renunciation of the feudal connexion between the tenant and his lord. r Rep. 106. b. So ^^^ tenant for life accepts a fine/z/r cog" nizance de droit come ceo, ^c. it is alfo a forfeiture of his eftate for life, for it is a de- nial of the tenure upon two accounts j id. In admitting the reverfion to have been in a ftranger to convey j and, 2d, In accept- ing of it himfelf, to the prejudice of the perfon in reverfion. ^81. If 381. If a tenant fbr life of a rent or ad- ^^^^P- ^"; vowfon levies a fine, it will have the fame effedl, for although the fine being levied of J J'^?i„'^,Jb^' a rent pafles no nnore than it lawfully may, 374. yet being a publick and folemn renuncia- tion of the eftate for life in a court of re- cord, it is within the reafon of the law, and amounts to a forfeiture. 382. If y/. be tenant for life, with re- 2 Lev. 202. mainder to B. for life, and J. levies a fine f^belf/' to B. this is a forfeiture of both their Co. Read. 3; eflratesi for by their own a(5l on record, they have denied the reverfion to be in the lord, the one by giving, and the other by receiving it. 383. yf. was tenant for life, remainder Garrett v. for life to B. remainder in tail to C re- /j^oU-Abr. mainder in fee to B. and B. levied a fine 855. fur cognizance de droit come ceo^ i^c. to a ftranger. It was adjudged to be a forfei- ture of his remainder for life, fo that after yf.'s death, C. might enter, becaufe the fine conveyed a fee fimple in pofiefTion by eftoppel, againft which he could not aver that he only paffed an eftate for life in p.t- Jentij with a fee fimple expeflant on the death of C without iffue j becaufe the fine T 4 fuppofcs fuppofes a prior gift in ^ee fimple, which he could not lawfully make while the eftate for life of ^. and the intermediate remain- der of C. in tail were fubfifting. 384. But where the perfon who has the next eftate of inheritance joins with the te- nant for life in levying a fine/z/r cognizance de droit come ceoy i^c. it does not then ope- rate as a forfeiture. Bredon's cafe A. being tenant for life, with remainder 1 Vent '^ 160 in tail to i?. they both joined in levying a fine /'?/r cognizance de droit come ceOy i^c. to a ftratiger in fee. It was refolved that this was neither a difcontinuance nor a forfei- ture, but that each of the parties to the fine gave that which he might lawfully difpofe of, and that the law would conftrue it to be, firft, the grant of the perfon in remain- der, and afterwards the grant of the tenant for life. Pigottv. 385. A fine/z^r concejjit levied by a te- Sahfljury. ^^^^ ^^^ |j^ ^^^^ ^^y_ operate as a forfei- 2 Mod. 109. f , ture of hib eftate, becaufe it only transfers fuch an intereft as the tenant for life may lawfully pafs, without devefting or dif- placing filler. 281 placing the eflates in remainder or rever- Chap. Xir. fion. 3 3 6.. No fine levied by a cejlui que iruji 2 P. Wms. will be allowed in Chancery to operate as 3"^,^!!^, 729. a forfeiture, becaufe it cannot affe6l the lubfequent remainders ; and therefore fuch a fine will in equity operate at moft as a grant of the interell of which the cejlid que trufi has a power to difpofe. 387. If a copyholder levies a fine of his ^'^'^^'^- fo Co. copyhold, it will operate as a forfeiture, "P- ^i. n. and in fuch cafe no acceptance of the rent, or other aft done by the lord, Ihall be available to make the eftate again good. It is faid in a modern cafe that this doc- P°^ v- ^"^'^'- trine is too general, for unlefs there is a Rcp.B.R. change of pofTciTion the fine will be void '^-• as againft the lord. 388. A fine will in general operate as a Revocation of revocation of a prior devife of the lands '' -O^^:/'- whereof the fine is levied, becaufe it is an Tic. Dev^fc eftablifhed maxim, that any alteration of O. p. 3. the pofiefTion or eftate by the aft of the ^ * " '*^' devifor, after the publication of a will, amounts to an implied revocation of it, as Chap. XII. as fuch alteration is confidered as evidence •""^'''^ of a change of intention. 389. There are however fome altera- tions in the nature of an eftate v/hich do not operate as a revocation of a devife, and where a fine is levied only for the purpofe of confirming fuch an alteration, it will not in that cafe operate as a revo- cation. I«ther V. Dorothy Kirby by her will, taking notice Kirby, svin. that (he was tenant in connmon with ano- ' P w'tdo ^^^^ perfon, devifed her moiety to truftees upon feveral trufts. She afterwards by in- denture between her and the other tenant in common, covenanted to levy a fine of all the premifcs, and declared the ufes thereof as to one moiety to herfelf and her heirs, and as to the other moiety to the other tenant in common and his heirs, and 'the fine was levied accordingly. A queftion having arifen whether this deed and fine operated as a revocation of the will, the Lord Chancellor referred it to the Judges of the Court of King's Bench, who were unanimoufly of opinion that they were not a revocation, with which the the Lord Chancellor agreed, and decreed accordingly, 390. But where a partition is made and a fine is levied, not merely to cftablifh the partition, but alfo for another purpofe, and the eftate in the land is altered, it will then operate as a revocation of a former devife. Robert 'Tickner being feifed in fee of the Tickner t. eftate in queftion, which was held in Gavel- Tickner, cit. kindi died inteftate, and left two fons, Henry and Roberty who entered and became feifed in Gavelkind. Robert being feifed of an undivided moiety, made his will, and de- vifed it to his wife and her heirs. After- wards by deed of partition and fine between Robert and Henry, all the eftate which Ro- lert had devifed was allotted to him, to fuch ufes as he fhould by deed or writing appoint, and in default of appointment, to him in fee. After mature deliberation. Lord Chief Juftice Z.^^ held this tranfac- tion to be a revocation of Robert's willj and Lord Hardwicke fays of this cafe, that - i^^]^_ -.-. there was a new conveyance, and it did not 75°- reft upon the partition only, v9^- In 284 Jinc0. Chap. xri. 39T. In a ?i^t fur done grant ^ render y ^•^'^'i^'*^ the cognizec is but an inflrument, who has A^^tfurrlor:e a feifin only for an inflant, which is not fuf- prr.nt iy ren- r • • • 1 1 • t i i ivrgivesa ncieot to mtitle his wire to dower; how- rcw eftate. ever this fine operates as a feoffment, and " '" •^ ■ ' re-enfeoffment, and gives a new eftate. So that if a perfon, fcifed of an eflate ex farte jnaterna, levies a ^nt Jur done grant & render^ and takes, back an eftate to him- itli and his heirs, the nature of the de- fcent is thereby altered, and the eftate will thenceforth defcend to his heirs ex ■parte faterna. Price V. J. S. being feifed of lands ex parte ma- ^J""^°'' p' . terna, he and his wife levied a fine to 7. N. 1 hhow. Rep. * '> 92.Salk.337. and J. D. and they by the fanne fine grant- Carthevv 140. ^ ^^^ rendered the fame lands to the ufc ep. temp. oh 253. of the faid J. S. and his wife and the heirs of their two bodies, remainder to the right heirs of J. S. The hufband and wife died without ifTue, and the queftion was, whe- ther this remainder defcended to the heirs of the part of the mother, or of the part of the father. It was argued on the one fide, that this feifin of the cognizee was merely fiftitious; for if the cognizee had a term for years in the fine0. i^s the land, it would not be merged : that it cbap. XII. was like the cafe of a furrender of a copy- "-^"V*^ hold into the hands of the lord, who was thereby. only a mere inftrumentj therefore that nothing was altered by the fine, but the cftate remained as before. On the other fide it was contended, that the cognizee could not render the eilate unlefs he had it in him, and that the grant and render operated as a feoffment and re- enfeoffment. The Court held that the eftate was once in the cognizee, otherwife he could not give it back : that the grant and render was a conveyance at common law, and made the cognizor a new piirchafer, as much as a feoffment and re-enfeoffment ; fo that the remainder defcended to the heirs on the part of the father. It is obfervable that this is t!:e only fort of fine which gives a new eftate ; for if a perfon feifed ex parte materna levies a fine Jiir cognizance de droit come ceoy and eicher makes no declaration of the ufes of it, or declares it to be to the ufe of himfelf and his heirs, the lands will ftill defcend ex ^p^w.^^q. farte - Vv'iir. 19. iffne^. parte materna^ becaufe it is ftill the old ufe, which, confifhing in trufl and confidence, will follow the nature of the land, and will defcend as the land would have defcended, if no alteration had been made j and ic is totally immaterial whether the ufe be ex- prefsly declared upon a fine, or permitted to arife by implication* ifineief. 2S7 CHAPTER xiir. What Perfons Eftates and Interells are not barred by a Fine. 392. T^TOtwithstanding the great X^ force and efFefl of a fine, yec there are fome particular perfons eflatcs and interefts, to which its operation does not extend. By the common law no laches can be VaXit^. imputed to the King, and therefore no de- lay or omiflion on his part in making a claim will bar his right: from thence has arifen the maxim, nullum temp us occur it regiy for the law fuppofes his Majefty to be always bufied for the publick good, and therefore that he has not leifiire to afiert his right within the time prefcribed for other perfons. It follows from this prin- ciple that the King cannot be barred by a fine, to which he is not a party, and five years non-claim ; nor is his Majelty's pre- rogative in this inftance taken away by the ftatute ^ Geo. III. c. i6. by which the King is only difabled to fue for any ma- nors. a8S fint^. C -r Xiri. nors, lands or hereditaments v*here the right has not accrued to the Crown within fixty years. Sa lef.aftical corporalidtis. MagJaktie college caje. 1 1 Rep. 7S. b. 1 Roll. Rep. 151. Watf. Comp. In. 437, 393. Ecclefiaftical corporations, and in general all ecckfiafiical perfons, who arc feired in right of their churches only, and have not an abfolute eftate in their poffef- fions, being reftrained from alienation by fcveral pQfitive ftatutes, are not only pro- hibited from levying fines, but cannot even bar their fucceflbrs by their non- claim {a) . Thus in the cafe of Magdalene College y one of the points was, whether the mafter and fellows were bound by a fine and five years non-claim \ and it was refolved that the right of the college was not barred by the fine and non-claim, for the words of the ftatute i^Eliz, c, 10. which prohibits all \a) This agrees with the principles of the old law, as laid down by Brazen, lllud item tit 'uldetur ohfer- •vari dcberet de jure etfeodo ecclejia^ Ji re dor clameum lion oppofiierit, quod eccle/ja ncn prejudicatur, cum fungatur 'Vice ■mliioris, non magis quarii miner i Ji cujlos clameum non appcjutrit. Lib. 5. c. 29. f. 3. ecclefiaftical ifiiir0. ccclefiaftical corporations from alienation were *' that all leafes, gifts, grants, feoff- *' ments, conveyances, or eftates to be " made, had, or fuffered by any maflers " and fellows of any college, &c." So that when a fine was levied and no claim was made for five years, there was a con- veyance permitted and fuffered by the mafter and fellows of the college j and ic would have been of no effedl to have pro- hibited the mafter and fellows themfelves from making conveyances of their lands, Howlet v. if they were allowed to have a power by ^^^^Pf^"'^^''- their pcrmifTion and non-claim, to bar S. P. their fucceffors. A bifliop, dean, or vicar may however be himfelf barred by his own non-claim, as has been ftated in a former Ante f. 356. chapter. 394. Ic is laid down by Sir Edivard ^A'^^ «<" '^'^- „ , . . . , , 'vejlcd. Loke as a certain principle, that no fine will bar any eilare in poffefTionj reverfion or T^^p.aym.^"^' remainder, which is not devefted and put »49- to a right. This pofition is however too general, if the words " devefted and put " to a right" are underflood in that ftri(fl technical fenfe whicli the law annexes to them. The word " deveft" fignifies no- thing moie than a mere dc-privation of the Vol. I. U pofTsf- 293 ifi'ne^. Chap. XilL' poiTefiion (^0 j but the woids, " put to t * " ' *' I'igh:," have a much more extenfive fig- nification, for they mean, a deprivation not only of the poirefTion, but alfo of the right ofpofTclTioni fo that where an eftatc Is turned to a right, the owner has only the iComm.i9c. jiis poprietaiis, or mere light of property. If therefore S\v Edward Coki^ i^o^iiion be taken ftridly, it will appear to be unfup- ported by any authority ; for although it be neccflary that an eftate be devefted be- fore it be barred by a li.ie, yet it is by no means necelTary that an eftate Hiould be put to a right. /inte r. 363. Thus in the c^\z of Stc-iveU v. Zouch, when Siowdl was diirciicd by Zonch, his eftate wa§ merely devcfted, that is, he had only loft the adual polTefnon, but it was not turned to a right, for he ftill continued to have in him both the right of poiTefTion and the right of property, and yet all the judges an-reed that he was barred by tiie fine. (4 Dsvejl, tleif/Ure, is contrary to inveft, for as lnie/!ir£ {iguSi^s t>n/ifior.em fr^Jrc, fo Jcvejl:re ine;ui5 foJef^oKLm tiiifarc. CowcU'i; Dla. 1 lib. Fcad. tit. 7. This This cafe, and many others which will Chap. Xlir. be mentioned in the prefent chapter, clear- " ly prove the general rule to be — That no eftate or intereft can be barred by a fine unlefs ic is devefted out of the r°al owners either before the fine is levied, or by the operation of the fine itfclf, that is, unlefs the real owner is turned out of poffefllon of fuch eftate or intereft, and that while he continues in pofleffion, a fine will not affedb him. 395. The cafe in which this principle was laid dov/n, and Sir Edward Coke's expref- fion in ftating the refokition of the Court, iliews that this was the idea which he an- nexed to the Vv^ords " put to a right,'* for, fays he, " he who has the eftate or intereft 9Rep.io6.a. ** in him, cannot be put to his adlion, en- " try or claim, for he has thai which the " a<5lion, entry or claim would veft in, or *' give him:'' and in another place he ftates this principle in the following words : 5 Rcp.tjvb. ** No fine levied with proclamations fhall -^"^^-S^?* *' bind any but thofc who are put our of " pofteflion, and have but a right, for if *' their eftate or intereft be not devefted " out of them, but remains in them as it ** was ai/ initioy they need not make an U 2 *' entry 29^ mim> Chap. Xlllo " entry or claim to that which never was ' '—"V—' « devefted." Thefe padliges fully prove Sir Edward Coke's meaning to have been, that no per- fon could be barred by a fine, nnlefs he was firft turned out of pofieffion, and had only a right of entry or aftion left in him j for if a perfon continued in pofTefilon, after a *■ • fine had been levied, he could be under no necefTity of making his claim or bringing his aflion J becaufe being fiill in poffeflion, and not difturbed by the fine, he had alrea- dy all the advantages which thofe remedies could procure him, and therefore it would be unnecefiary to purfue them, ^^6. It foUov/s from this principle, that a future right cannot be barred by a fine; becaufe a perfon cannot be difpoffellcd of it. Ante r. 323. Thus, in Safins, cafe, it was agreed, that jRep.izA.D. aitjioygfi a term for years might be barred by a fine, if the leffee were, or might have been in poflefiion, yet that fo long as a leiTee for years had only an bitereJJ'e termini, he was not afi'efl'ed by a nne 5 becaufe a man canBOt be difpoiTefied of an interejfc termini^' finC0. 293 termini. But when his term commenced. Chap. XIII. and he acquired a right to enter on the ' ' ' land, he then had fuch a prefcnt eftate as might .be devefted, and which he might reveft by his entry; fo that his non-claim for five years after the commencement of his term, barred him ; becaufe from that time he was out of poflefiion. So in the cafe of Ccrhett v. Stone^ a term -"^"te f. 326. for years was adjudged not to be barred by a fine, becaufe the perfon in whom it was • veiled was not difpofieired cf it. 397. A man fettled lands to the ufe of E^^wards v. r \c r 1-r i-/-i n ii/- Slater, Hard* him felr for life, and if he mould fettle a ^lo. jointure on his wife, and make a leafe for thirty-one years, to commence after his death, that then the truftecs fliould ftand feifed to fuch ufes. He made a leafe ac- cordingly, and then he and his wife levied a fine. It was refolved that the leafe was not barred, becaufe being a future intc- refl, it was not develted or difplaced by the fine. 398. The interefi of tenants by ftatute- i Mod. 217. merchant, (latute-fiaple, or elegit, cannot Ancef. 32S. be barred bv a fine until they have extend- U3 ed ed the lands, or purfued their rights in fome other manner ; for until then, they have no right to enter on the lands, and therefore cannot be put out of pofTefiion. 1 Cha. Ca. 399. So where a man has a judgment ''^^* for debt, and the debtor before execution ihrecm.zii. , , ^ , n r 1 aliens by fine, and five years pals, yet the creditor may ftill fue out execution. u^ rent, right ^qo. Although the owner of a rent may %-:Zm! ^" ^^^ '^^ by ^ ^"^> y^^ ^ ^^^^ ^" ^'^^ polTefllon of a third perfon cannot be fo barred. It is the fame of a right of way, or com.mon ; im^Ab^th t)^c^u^^ chcfe being merely contingent Fine pi. 123. rights, collateral to and ifTuing out of lands, Cn/iac*6o' they cannot be dcveftedi for although a T. Raym. perfon who has a rent, right of way, or ^P' ^ common, out of lands, be not in the a6tual enjoyment of them, yet by non-njcr alone, he does not ceafe to have a veiled eftate or jntereft therein, fo that he ftill continues to be in actual pcfieiTion j fuch things bcin^ mere creatures of the law, and owing their Hawk. P. C. exiftence to the conftruiflion thereof, they gh. 64. f. 45. ai-e always confidered to be in the pofleffion of thofe whom the law adjudges to have a j-ight to fuch pofielilon. iTincjcf. a^jr It riioiild however be obferved, that a Chap. Xlli. rent may be devefted by a difTcifin ; the *— "v— ^ different modes by which a mnn might be diffeilvrdof a rent, are very accurately ex- plainedby Littleton^ becaufe when he wrote, I^ittlcton, an afTife was, in mofi: cafes, the only remc- ' '^ "^^' dy for the recovery of a rent, and it only lay where the party was difleifed i but dif- feifins of incorporeal hereditaments are only at the eleclion aud choice of the party injured, who, for the fake of more eafily trying the right, is plcafed to fuppofe him- felf difieifed ^ for as there can be no a^lual difpoflcfl'ion, he cannot be compulfively ioRep.9-. a. difleifed of any incorporeal hereditament. 3<-^^mni.i7o. 401. Thefe principles have been recent- ly confirmed by the Court of King's Bench, in their determination of the fol- lowing cafe. In an ejeflment for lands in Surry ^ the Mich. 2^ G. jury found a verdicSt for the plaintiff, fub^ S-Good.ighc je»fl to the opinion of the Court on the fol- iliie v lowing cafe. Board & Jones, M. S. Lord Bolinghrcke^ being feifcd in fee of the premifes in queftion, by indenture of Jcafe, dated the ill March 1765, demifed U 4 the the fame to William Stevens for twenty-one years, at the rent of loo/. which leafe, by mefne afllgnments, became vefted in the defendant Board. Lord Bolingbroke^ by abend dated 24th 7«/y 1770, with war- rant of attorney to confefs judgment, in confideration of 3000 2. became bound to the lefiee of the plaintiff in the penal fum of 6000/. conditioned for the payment to her of an annuity of 500/. during his own life j and by indenture of the fame date. Lord Bollnghroke^ in confideration of the faid 3000 /. and as a farther fecurity for the annuity, demifed the premiiTes in queftion to the leffor of the plaintiff for ninety-nine years, if his Lordfhip fhould fo long live, at a pepper-corn rent, with a provifo, that the leffor of the plaintiff fhould the next day re-demife the premi- fes to Lord Bolingbroke for ninety-eight years and eleven months, if he (hould fo long live, at the rent of 5C0 /. which was accordingly done. Lord Bolingbroke, by leafe and releafe dated the 9t:h and loth March 1773, con- veyed the premifes, for a fair and valuable confideration, to the defendant Jones in fee, who who had no notice of the annuity granted Chap. XIII. to the leflbr of the plaintiff. 'Jones being in poirefTion, levied a fine of the premifes, with proclannation in ^rinily Ternn in 1775, ^^ ^^^ "^^ ^^ \\\m- felf in fee. The annuity was in arrear from the 14th January 1774, and the ejectment was brought in Hilary Term 1782. Lord Mansfield. — We have looked into all the cafes, and have no doubt. It ap- pears that the lefibr of the plaintiff, and the defendant Jones, are both innocent; Jones is a purchafer for a valuable confi- deration, without any notice of the leflbr of the plaintiff's title ; the leffor of the plaintiff is not alleged at any time to have known of the conveyance to Jones, and there was no circumftance of notoriety at- tending the transfer to give her fuch no- tice y for the vifible poffeffion continued the fame after the fale as before it ; the leafe to IFilliam Stevens fubfifting, and the payment of rent to Jones, indead of Lord BoUngbroke, carried with it no notoriety in ^he country. At the time of the convey- ance. 29^ rnicts. Chap. XIII. ance, there was no arrear of intereft due to Mrs. HarCj and therefore Ihe had no right • to come upon the land in any fhape. If fhe was guilty of laches afterwards, there could be no mala fides in it with refpefl to Jones, as he is under no difadvantage from it : fo that it is a queftion of mere law be- tween two innocent parties, whether the right and intereft of the lelTor of the plain- tiff is barred by the fine and non-claim. This depends on one clear propofition, which is a general rule of law founded in good fenfe j and although it be difficult to find a rule without an exception, yet I know of none to this propofition. It is laid down in 9 Co. Rep. 106. a. " Re- *' folved per totam Curiam^ that no fine nor '* warranty fiiall bar any cftate in pofTef- ** fion, reverfion or remainder, which is not " devePied and put to a right." This ge- neral rule is illuilrated and applied to fe*-. veral cafes throughout the books j and hence it follows, that no collateral intereft can be barred by a fine 3 as a rent-charge, a right of common, &c. and the authority cited from Carter 24. that a rent-charge tr. ay be barred by a fine, is totally mif- takeni for, in looking into it, it appears to be thu'.- ; iiie owner of a rent-charge levied iTincsf. *99 levied a fine of the land ; the queftlon was, Chap^H- ■whether the rent-charge pafied by the fine; and a diftinftion was taken between a fine operating as a grant or as a bar. Here the fine operated as a grant, and not as a bar; the rule is univerfal, that a rent- charge in a third perfon is not barred by a fine and non-claim. Hence the parties to a fine, or one of them, mufl: be in of a feifin or poflefllon adverfe to that intercfl: which is to be barred; for, if it be con- fident with it, the fine does not deveft ir, and therefore is no bar. Now, at the time of the conveyance to "^Jones in 1773, Lord Bclinglroke had no adverfe poflef- fion ; he had paid all arrears, and as the leflbr of the plaintiff had no right to come en the land but for arrears, flie had then no title in her. At the time when the fine was levied, there was an arrear of a year and an half due ; but the leflor of the plaintiff was not bound to refort to the lands for her remedy. Hie had other fecu- rities ; befides, fhe could not enter on the lands, the leflee for years being in poflef- fion ; all fhe could do was by notice to the tenant under the flatute 4 & 5 Ann c. 16. which makes attornment unnectflary, ei- ther to diftrain or bring an adion for the rent. rent. In every fhape it is rnoft clear, that the leflbr of the plaintiff's intereft was not devefted or turned to a right ; and there- fore that it remained after the fine juft as it did before. Judgnnent was given for the lelTor of the plaintiff. The doftrine, that a rent cannot be de- vefled, feems to extend to the cafe of a rent in the poffefTion of a perfon who has no title to it j for it is faid by Lord Chief Glib. Ten. Baron Gilherty that if A. is feifed of a ^°+* rent-charge, and the tenant of the land pays it to B, this does not devefl A. of his right, becaufe the wrongful payment of the tenant cannot alter the right of the owner ; it is therefore a payment in his own wrong, and it {till remains in arrear. This feems the ftrongeft cafe that can be put on i\\t fubjed. ^ecejlty of an 402. It is not Only nccefiary that a perfon Mjefcffef. ^^quIjJ be out of poffefTion to be affefted by a fine, but it is alfo requifice that the party levying the fine fhould have an ad- verfc poflelfion inconfiftent with that of the perfon to be barred; fo that if the poifeiTion of the party who levies a fine is confident with that of any other perfon, fucH Jion Jfine0. :joi fuch other perfon will not be aflfedled Chap. XIII. by it, ' " — ' Thus-, it has been fettled, that the pof- pordv.Lord felTion of one joint-tenant is the poflelTion C^rey, of the other, fo as to prevent the effed of salk^a's'^!' the ftatute of Limitations, and that where there are two joint-tenants in fee, if one of them levies a fine of the whole, it does not amount to an oufter of his companion, but only fevers the jointure, though he is in of the old ufe again. 403. The pofTefTion of one tenant in common is the poffeflion of the other, nor does the bare perception of all the rents and profits by one, amount to an oufter of the other, fo as to make him liable to be barred by the ftatute of Limitations. Thus where one tenant In common re- Fairclaim v. ceived all the rents for 26 years, and in Shackleton, an ejeflment brought by the other tenant 2604. in conrtrtion for the recovery of his moiety, thfe'only queftion was, Whether the plain- tlft' was barred from recovering by the ftatute of Limitations. It was faid on be- half of the plaintiff that the ftatute of Li- mitations only runs againft thofe who are ouc 302 Jfiiie;^. Chap. Kill, out of ponefTiort; that coparceners, jolnt- tenants, and tenants in common have a joint poffeffion, and the pofleflion of one is the poIIelTion of both j that the percep- tion of the profits docs not amount to an expulfionj one tenant in common may indeed diifeife another, but then it muft be done by an adual diffeifin, and not by a bare perception of the profits only, and the itatute of Limitations never runs againll a man but where he is aflually culled or dirTcifcd. The Court laid it down that there muft be an adverfe poflef- fion in order to enable the flatute of Li- mitations to run; that there mufl be a difieifin fbidly proved ; that in this cafe there was no adverfe poffcfiion, no keep- ing the plaintifi'ouc ofpofiefiioni one te- nant in common had received the rent u'ithout accounting for it to the other j but th-re was noexpulfion, no oufler. Judg- ment was therefore given ror the plaintiff, A.OA. Notv/ithftanding the doctrine efta- bltthed in the preceding cafe, it has fince b,;-en determined chat .36 years fole and un- interrupted poueiTion by one tenant in common, witliout any- account, or de- mand ai:u.U', or claim ff t tip by his- com- pa.r-iicn, panion, was a fufRcient ground for a jury Chap. Xlir. to frefume an adual oufter of the co- * — - — ' tenant. Upon a rule to fhevv caufe why a new Doe v. P IT" trial fliould not be granted. Lord Mans- V,''^"^''' ^fc-/^ reported that from the year 1734 one tenant in common had been in the fole poflcfllon of the lands without any claim or demand, by any perfon or perfons claiming under the other tenant in com- mon j that no a6tual ouder was proved: but upon the circumftances his Lordfhip had left it to the jury to fay. Whether there was not fufficient evidence before them to prefume an a<5lual oufter, and luppofing there was an aflual oufter, in that cafe, the leflbrs of the plaintiff were barred by the ftatute of Limitations. The jury found that there was fufficient evidence to prefume an aftual oufter. After the cafe had been argued, Lord Mansfield faid, " It is very true that I told " the jury they were warranted by the " length of time in this cafe, to prefume " an adverje pofieftion and ov.ffc" by one of " the tenants in common of his compa- " nion; and I continue ftill of the fame '' opinion. " opinion. Some annbiguity Teems to " have arifen from the term a^ual oufier, *^ as if it meant fome a6l accompanied by " real force, and as if a turning out by the *^ fnoulders were neceffary. But that is *' not fo, a man may come in by a right- '' ful pofiefTion, and yet hold over adverfe- *' ly v/ithout a title. If he does, fuch " holding over, under circumftances, will " be equivalent to an a^ual cufter. For *' inftance, length of poffefiion during a " particular eftate, as a term of loco *^ years, or under a leafc for lives, as long *' a^; the lives are in being, gives no title. " But if tenant -pur autre vie hold over for *' 20 years after the death oi cefiid que vie^ *' fuch holding over \v\\\ in ejecflment be *■ a complete bar to the remainder- man or *' reverfioncr J becaufe it v/as adverje to *' his title. So in the cafe of tenants in ^* common, the poiTeflion of one tenant in *• common, ea nomine ^ as tenant in com- *' men, can never bar his companion; *' bc'cauf; fuch poffefiion is not adverfe to *' tlie right of his companion, but in fup- *' port of their common title; and by pay- ** ing him his fliare, he acknowledges him *^ co-tenant. Nor indeed is a refujal to ^^ fa'j of/Z/'^'.^fuScient, ivithoui dcuying his & '^' title. " liile. But if upon demaiul by the co- Chap. XI if. " tenant of his moiety, the other tieNies to ^ — ^ ^ " pavj and denies bis title, faying he claims " the whole and will not pay, and conti- *' nues in poflTenion, fuch pofiefHon is ad- *' verfe and cufter enough." The Court was of opinion, that an un difturbed and quiet poiTeffion for fuch a leno^th of time was a fufficient ground for the jury to prefume an actual oufter, and therefore the rule for a nev/ trial was difcharged. 40<. It is faid by Sir Edward Coke, that when one co-parcener enters claiming the j,^ whole land and taking the whole profits, I^^- 37.-^ file gains the moiety of her filter by abate- ment, which is tliereby devefted, and yet her dying feifed v/111 not take away the en- try of her filter; that when one coparcener enters generally, and takes the profits, this fliall be accounted in law the entry of them both, and will not deveft the moiety of her fifter; bu: if both co-parceners en- ter, the raking of the whole profits, or any claim made by the one cannot put the other out of poffefllon without an acflual putting out or dilTeifin ; from w'hich ic Vol. I. X follows. 3o6 iFinc0. Chap, xni, follows, that if one co-parccner enters gc- *^ ' — ' nerally, and takes the whole profits, and afterwards levies a fine of the whole, fuch fine will not bar her companion, becaufe there was no oufter, and of confequencc no adverfe pofTtflicn: for there is a drift analogy between the effeft of the ftatute of Limitations, and that of the ftatute of 4 He?!. VII. in this refpeft : both thefe fta- tutes enadl that a non-claim during a cer- tain period of time, is a complete bar to thofe who are out of pofleffion, that is, to thofe who are either oufted or difleifed, but with refpedl to fuch perfons who are in aflual pofTeffion, or whofe pofleffion is preferved by the pofleffion of fome other perfon on account of a privity of eftate, they are not barred. 406. This do6lrIne, however, is not fupported by any adjudged cafe refpeding the fine of one co-parcener, but the rule laid down by the Court in the cafe o( Ford V. Lord Greyj that the fine of one joint- Ante f. 402. tenant does not amount to an oufter of his companion, feems to be a fufficient autho- rity for concluding that the fine of one te- nant in common, or one co-parcener, would f fne0. 307 would not be confidered as a bar to his or Chap. XIII. her companion, as the principle is pre- * * cifely the fame in all thofe cafes, unlefs there were ads of ownerfhip from which an aflual ouller might reafonably be pre- fumed. In a writ of error from the Court of Davenport King's Bench in Ireland^ the cafe was, that ^'gi^Rep Maurice Tyrrell being a Roman Catholick, 675. died feifed of certain lands, leaving two fons, Richard and James. By the Irijh ftatute 1 AnnCy eftates in fce-fimple, or fee-tail, belonging to Roman Catholicks, defcended in gavelkind, but on the death of Maurice., his eldeft fon, Richard entered alone, and held the fame until his death, for 62 years, and in the mean time fettled the fame by fine and recovery, to which "James his brother was privy. On the death of Richard^ in 1766, leaving two daughters, James the leflbr of the plaintiff brought an eje(5tment againft his two nieces, for two thirds of the moi«ty of the lands whereof his brother died feifed, as co-heir in gavelkind with his brother, and recovered them by default. He then brought an ejectment againft the widow of Richard for the other third of the moiety, X 2 which which fhe claimed as her dower, and aifcj under the fettlement. On the trial the Judge direfted the jury to find a verdi(5t for the plaintiff, upon which a bill of ex- ceptions was rendered fctting out in fub- flance this cafe, which was returned into the King's Bench in Ireland, and there- upon the Court gave judgment for the defendant. A writ of error was then brought in the King's Bench at JVeJi- minjlery and it was argued for the de- fendant that 62 years fole pofTefllon, and the fine were a bar to this adion by com- mon law : that this was a queftion not be- tween joint-tenants, or tenants in common, but tenants in gavelkind, who arc male co-parceners J that the true flate of the law was this, i. If both enter there mufl be an adual oufter, to make a difTeifin; 1. If one enters generally, and takes the profits, this is no diffeifin; 3. If one en- tersfpecially, as in the prefent cafe, claim- ing right to the whole, and taking the whole profits, this is a dilTeifinj but after her death the filler may enter, unlefs barred by the ftatute of Limitations. 4. If after a fpecial entry, one by feoffment or fine, deftroys the co-parcenary, and takes back an eftate in fee and dies, the entry, of the jffncjEf. 309 the fiHer is barred. Here Richard enr:ered Chap. XIII. alone in 1704, took the whole profits, fettled the eftate in 1727, with the privity o( James, levied a fine, and died after 62 years poflefTion. The entry of James is therefore clearly barred, and he cannot maintain an ejeftment. The Court faid, that the ftatute 2 ylnncy made the lands of Roman Catholicks defcend in gavelkind, that was it's whole efFe6t, and then the ad- wtT^t poflefTion of one gavelkind tenant, would not operate as the pofTeffion of both. That was a qualified rule, and in the prefent cafe the afls of ownerfliip, fine, ^c. made an aftual oulier, the fta- tute of Limitations operated as an extin- guidiment of the remedy of the one, and not as giving the eftate to the other. 407. It is impofTible from thefe cafes to deduce any certain rule refpefling the operation of fines levied by joint-tenants, tenants in common, or co-parceners j for if we adopt the principle laid down by Sir Edward Cokcy no fine levied by a joint-te- nant, &c. will bar his companion, unlefs it * •^^'^- '^3'* be proved that fuch joint-tenant entered ipecially, claiming the whole; a fact not eafily afcertainable, and which can only be X 3 decided a. 310 iffncjE?. Chap. XIII. decided by a jury. But there is another * ^ ' paiTage in Ccke'?> Comment on Littleton^ 1 Inft. 374. where it is faid that " when one co-par- " cener entereth into the whole, and " make[h a feoffment of the whole, this '^ devefteth the freehold in law, out of the " other co-parcener." Now a fine where one of the parties to it has an eflate of free- hold has certainly as powerful an opera- tion in devefling an eftate, as a feoffment; and if this rule be adopted, it will follow, that a fine levied by one joint-tenant, \Sc» will devefl the eftate of his companion, and of confequence bar it, unlefs a claim is made in due time. A diftinftion may however be made between a fine levied of the whole eftate by one joint-tenant, i^c. without any declaration of ufe, and a fine levied of the whole eftate by one joint-tenant, l^c. for the purpofe of con- veying it to a purchafer. In the firft cafe it may be prefumed that the joint-tenant, l^c. only levied the fine in order to ftrengthen his own and his companion's title, but in the fecond cafe, the ad of levying the fine is fufHcient evidence of an intention of claiming the whole profits, and therefore the poffeffion muft neceffa- rily become adverfe from the time when fuch I fiich a fine is levied. And even in the Chap. Xlir, cafe where both the joint-tenants, dffc. have '^ """^^ entered and been feifed, the levying a fine ' ^^' by one of them to a ftrangcr, of the whole cftate, fcems to amount to an adlual put- ting out. 408. When fines became common af- ^fla'estailof furances of lands, the Judges would no ^^^'i^f ' more allow a fine to devefl: the intereft of the king, than any other conveyance, but preferved the king's remainder or rever- fion, altho' they allowed the fine to be a good bar to the eftate tail, on which the king's remainder or reverfion depended, for otherwife an eftate-tail, with a remain- der or reverfion in his majefty would have been unalienable; and if a fine was levied of an efiate of this kind, it only pafied a bafe fee, determinable on failure of heirs of the body of^the tenant in tail. But by a claufc in the ftatute 32 Hen. S. c. ^6. f. 4. it was pro/idcd that " that " ftatute fl:iould not extend to any fine le- ** vied by any perfon or perfons, of any " manors, lands, tenements, or heredita- *' ments before the tim.e of levying the " fame fine, given, granted or afllgned to X 4 " the Chap. XIII. " the faid perfcn or perfons fo levying the " fame fine, or to any of his or their an- " ceftors in tail, or by virtue of any let- " ters patent of the king, or any of his " progenitors, or by virtue of any a6t or *^ ads of Parliannent, the reverfion where- " of at the time of the faid fine or fines fo " levied, being in the king, his heirs or " fuccefTors : but that every fuch fine and " fines, fhould be of like force, ftrength " and efFe6l, as they were or fhould " have been if that ad had never been had *' or made." In confequence of this provifo the ope- ration of fines levied by tenants in tail, where there was a remainder or reverfion in the crown, depended on rhe ftatute , . 4 Hen. 7. and it was much doubted whe- 1 Itiit. 372. "^ ' b. ther the iffue in tail were barred or not. R'lyni- By[ on account of a ftatute made two years Sir T.Jones after, 34 £5? 35 Hen. 8. c. 20. it was re- '^ ■ folved that no fine, levied by a tenant in tail, of the king's gift, ^c. where there was a remainder or reverfion in the crown, fhould operate as a bar to the ifllie in tail or (liould afi^cd the remainder or rever- fion which was in the crown. With With refpecfl to the conftructlon of the Chap. Xlir. flatute 34 ^ ;^5 Hen. VIII. and the cafes which have been determined on it, they will be. dated in the EfTay on Recoveries. 409. A fpringing or fhifting ufe cannot Stringing and be defeated or deftroyed by a fine levied •' ^ "'^ ^■'^^' of the eftate out of which fuch fpringing or fhifting ufe is to arife, unlefs there be a non-claim of five years after it arifcs. Mary and Penelope 'Tnnnotl: being feifed LJoyd v. in fee as co-heirs, in confideration of ^^l^ Cafes 4000/. paid to Ai^ry by Richard Car e'UJy inParl. 137- and of a marriage, which foon afterwards took place between Penelope and Richard Carew; the faid Mary and Penclofe con- veyed all their eftates to truflees and their heirs, to the ufe of Richard Care-jj for life, remainder to Penelope for life for her join- ture, remainder to truftces to preferve contingent remainders, remainder to the firfl and other fons of Richard and Penelope in tail male fuccefiively, remainder to the daughters in tail, with the ultimate re- mainder to the faid Richard Carezv and his heirs for ever. Subject to a provifo, that if it fhould happen that no ifilie of the faid Richard by the faid Penelope fhould be living living at the deceafe of the furvivor of them, and the heirs of the faid Penelope fhould, within twelve months after the deceafe of the furvivor of the faid Richard and Penelope, dying without iflue as aforefaid pay to the heirs or afllgns of the faid Richard CareiD the fum of 4OC0/. that then the remain- der in fee fimple fo limited to the faid Richard Carew and his heirs fhould ceafe, and that then and from thenceforth the premifles fliould remain to the life of the right heirs of the faid Penelope for ever. Afterwards Richard Careiv and Penelope his wife, in order to extinguifh and deftroy all fuch right as the heirs of Penelope might have under this provifo, and for fettling the fame on the faid Richard Carew and his heirs, levied a fine of all the eftate, and declared the ufes thereof to Richard Carew for life, remainder to Penelope for life, remainder to Richard Carezo in fee. Richard Carew died with- out iflTue, upon which the heirs of Mary claimed the edate under the provifo, and filed their bill in chancery, to compel the truftees to convey the eftate to them, on payment of the 4000/. The bill was difmifled; but upon an appeal to the Houfe of Lords, the decree of difmifllon was reverfed, it being alledged that this provifo iFinc0. 3^5 provifo was within the f^ime reafon with Chap. XI if. thofe limitations which were alJowed in •— v*-^ the Duke of Norfolk's cafe, where it is faid that furiire interefts, fpringing truds, or trufts executory, and remainders to arife upon future contingencies, are quire cue of the rule and reafon of perpetuities, if they are not of remote confideracion, but fuch as will fpeedily wear out. And that the fine could not bar the benefit of this provifo, becaufe the fame never was, nor could be in Penelope^ who levied the fine. 410. Fines feem formerly to have been -'ititl of in fome inftances levied of dignities and ''■""^'^• titles of honour, but in the cafe of Lord Show. Ca. in Vifcount PurUcky it was debated in the ;-,'"'". '• Houfe of Lords, whether the dignity of Chiims of a vifcount could be furrendered to the ^^^'■""^" king by a fine. And the Houfe of Lords 1 jaii. 20. a. after long debate, and having heard his "• 3- Majefty's Attorney General, were un.ini- moufly of opinion that no fine levied to i8ih ofji/;./-, the king can bar a peer's title of honour, ''*/^- or the right of any perfon claiming fuch title under a perfon levying fuch a {inr:. 31 6 linc0. CHAPTER XIV. How Fines may be reverfed and avoided. JFrh eferior. 41 1. A Fine being confidered as a judg- XJL ment given in a Court of Re- cord, it can only be reverfed by writ of error, which is alfo a matter of record, be- ing a commiffion to judges of a fuperior court, authorifing them to examine the re- cord upon which a judgment was given, and on fuch examination to affirm or re- vQr^t the fame according to law. Interefi reipuMiCiC res judicntas non refcindiy et nihil ejl tarn coyiveniens naturali ^quitati, qiiam, nnumquodque dijfclvij eo legainine quo ligatum ffi. ilntv. 260.?. 41^- During the term in which a judi- cial a(5t is done, tlie record may be amend- ed or invalidated, without a writ of error ; becaufe during the Term the record is in the bread of the Court, and the rolls are alterable at the difcretion of the Judges; ;iComm 4C7. and now the courts of juftice allow amend- ments to be made at any time while the fuit f(nc0. fuit is depending, notwithflanding the re- cord be made up, and the Term be paR ; for they confider the proceedings as '\n fieri until the judgment is given ; fo that a fine may now be amended or invalidated at any time during the Term in which it is levied, by an application to the Court of Common Pleas, 413. A writ of error is properly fpeak- 9 Vln. Ab. ing a proceeding in the nature of an ap- ^j^^* j^^ g^ peal, and therefore muft be brought in a 2>- fuperior court ; fo that a writ of error to reverfe a fine is ufually brought in the Court of King's Bench, becaufe that Court has an appellant jurifdiftion over the Court of Common Pleas. But where the error affigned in a judgment does not arife from any fault in the Court, but from fome de- fefl in the execution of the proccfs, or from fome matter of faft, the writ of error mud be brought in the fame Court in whicli the judgment was given. And therefore in Ciifes of this kind, a writ of error to re- verfe a fine muft be brought in the Court of Common Pleas. 4T4. With refpefl to fines levied before the Juftices of IValeSj purfuant to the fla- tute 2 tute J4 & 2S H^^' VIII. It is provided by that ftatute,/. 113. that all errors there- in fnall be redreffed by writ of error, to be fued out of the King's Chancery in Eng- landj returnable before the King's Juftices of his Bench in England, And by the flat. 43 Eliz. c. 15. /. 6. it is provided that all fines levied in the county of the city of Chefter purfuant to that aft, fhall be fubjed to be reverfed upon writs of error to be fued and profecuted before the High Juftice of the County Palatine of Chefier, as other judgments given in the Portmoot Court. irbomay bring 4*5- With refpefb to the perfons who aivrit of error, may bring a writ of error, it fhould be prennifed, that no perfon has a right to re- verfe a fine, unlefs he can fhew that upon fuch reverfal he will be intitled to the land; for the courts of law will not difpoflefs the prcfent tenant, unlefs the demandant can make out a clear title, poffefTion always carrying with it the prefumption of a good title, until the contrary appears. Befides, if the perfon who demands the reverfal of ihe fine, cannot prove that he has a title to the lands of which the fine was levied, it follows that he is not affefted by it; and it would be trifling with courts of juftice, for 2 Bac. Ah. 5?>7 finc0. 3»9 for a perfun to feek relief, who cannot Chap. Xiv. make it appear that he has received an in- 416. The perfon therefore intitled to a Dyer 90. a. writ of error to rcverfc a fine, is he who would have been intitled to the lands if the fine had not been levied, which in ge- neral is the heir at law ; but where one who is feifed ex parte maternal levies a fine in i Leon. 261. which there is error, the heir ex parte Vfiaterna will be intitled to the writ of error. The younger fon, when intitled to the idem, lands by the cuftom of Borough Englijhy (hall have the writ of error, and not the heir at common law, for this remedy de- fccnds with the land. A brother of the half blood however Is i Inft. 14. a. not intided to brino; a writ of error on a fine levied by his elder brother, though if there had not been fuch fine the land would have defcended to him, 417. In a writ of error to reverfe a fine, Champer- it is not requifite that the perfon who brings 'l^?" ^' ,?' the writ fhould deduce his title and pedi- jac. 150. gree. 320 iFfiteia'. Chap. XIV. gf ee, unlefs it be a fpecial cafe varying from ' — ^ — ' the common courfe, as where a writ of er- ror is brought by a fpecial heir in tail, or a perfon in remainder. g Vin. Ab. 41^- ^^^ thok who are parties to a fine 493- muft in general join with the perfon inti- tled to the land in reverfing it, but this rule admits of fome exceptions. Plggotv. Hufband and wife were tenants for lifi?, Harrington, ^j^j^ remainder to an infant in fee, and they n-* " all joined in levying a fine. The infant alone brought a writ of error to reverfe it, on account of his nonage. It was objefl- ed, that fince all had joined in the fine, they Ihould likewife join in the writ of error : that the hufband and wife fnould be fummoned and ferved, and then the infant alone might proceed to aifign errors. But it was adjudged that the writ of error was well brought by the infant alone, becaufe the error affigned was not in the record^ but without it, viz. m the perfon of the infant. 5 Rep. 39. b. 41 9. No perfon can have a writ of error to reverfe a fine, who took any eftate by it, becaufe no recoveror can bring a writ of error Jrl'nC0. error to defeat a record, by which he him- felf has recovered J for the judgment in a writ of error is to avoid that which the plaintiff has loft. It follows from this principle, that in a idem. jine Jut done grant i^ render , the cog- nizor cannot affign error in the gra7it fc? render, by which he hinnfelf has taken an eftate. 420. A writ of error to reverfe a fine, ' ^^"^- 33^= muft be brought againft fome one of thofe Holt, 61/° who' were parties or privies to it, and not againft the tenant of the land only. But the Court will not in general reverfe a fine unlefs 2i Jcire facias is returned againft the perfons who are then in poflefiion j for the cognizees of a fine are frequently nothing more than truftees, and have no beneficial intereft in the lands. 421. Although it is a rule chat in aflions for the recovery of dower, the parol fliall not demur on account of the infancy of the heir; yet if a man and his wife levy a fine, and after the hufband's death the wife brings a writ of error to reverfe it, in order Vol. h Y to ffnc0. to recover her dower, the heir may pies his infancy, and the parol fhali denaur. Herbert v. In error to reverfe a fine levied by the {TT02 '^^' P^^'"'^^^ ^^^ ^^^ hufband, the heir being fummoned as terre-tenant, appeared and pleaded that he was within age, and prayed that the parol might demur. The plain- tiff counter-pleaded the age, ihewing that fhe was inticled to have dower before the fine levied, and was now barred of dower by the fine which was erroneous, and fet forth the errors. Upon demurrer and fo- lemn argument it was adjudged that the parol fhould demur, and that the plaintiff iliould not have the advantage to take from the defendant his age, having by the fine, fo long as it flood in force, barred herfclf of her dower j and therefore the law will rather favour the infant, whofe privilege was immediate, than the plaintiffs, which was only mediate, after the fine was re- verfed. 422. Errors may be affigned either m faft, as that the cognizor to a fine was an infant; or elfe in law, that is, on account I Roll. Ab. of fome defe6l appearing on the face of the Se f 67, record. But nothing can be affigned for error I error in fafV, in a fine wljich conrradi(5ls Chap. xrv*. the record, becaufe the records of a court ^^-""v-*'-^ ofjuftice are of fo great credit that they can only be defeated by matters of equal notoriety with thennfelvesi and therefore although the circunnftances afTigned for er- ror, fliould be proved by witnefles of the greateft credit, yet fuch evidence cannot be admitted. Thus we have feen that where the entry Ante f. 34. of the king's filver before the death of the cognizor, appears upon record, no aver- ment againft it can be made. 423. No averment can be made that Dyer 89. k the cognizor of a fine died b ^y ""^^ns of which he fhall R. 126. obtain judgment not only for damages (which are ufually remitted) but alfo to recover his court and jurifdidtion over the lands, and to annul the former proceed- ings. e Vin. Ab. 435* ^^^ ^"^ ^^ levied of lands, where- 582. of part are held in antient demefne, and Leon! 290. P^^^ frank, fee, and the lord in antient de- mefne brings his writ of deceit ; the Court of King's Bench, upon a view of the tran- fcript of the record, and proof that part of the lands are antient demefne, will reverfe the fine as to that part. They will not however order the fine to be taken off the file, as in cafes where the whole fine is re- verfed, becaufe it will remain good, as to the lands which are frank fee, but "will order a mark to be made on the fine, to fiisw that it is cancelled, as to the lands held in antient demefne. .436, The irfneief. 436. The lord of a manor held in an- tient demefne is not barred of his writ of deceit, by the deathof any of the parties to the fine. A writ of deceit was brought by the Zouch v. lord of a manor held in antient demefne, to ^^'^rnpfon, I Ld. Raym. avoid a fine levied of lands held of him as 177. of the faid manor. It was argued for the defendant, that the cognizor and the cogni- zee being both dead, the lord could not now maintain an aflion of deceit, becaufe it was only a perfonal aflion, and therefore died with the perfon. But it v/as refolved that a writ of deceit did lie in fuch a cafe againft the heir of the cognizor or cogni- zee, becaufe it was a real deceit, and did not refemble the perfonal deceit of non- fummons j and if the law were otherwife, the lord of a manor held in antient demefne would be for ever barred of his right of inheritance, in cafe the parties to fuch a fine Ihould happen to die the day after it was levied. 437. Where a fine levied in the Court ' ^^^- -'^^* ..112. of Common Pleas, of lands held in antient Cro. Eliz. demefne, is reverfed by writ of deceit, it is 47^« fsid to be doubtful whether the fine Ihall Hill Stints. Hill hold good between the parties. Some fay it does not become entirely void, nor is the cognizor reflored to his land againft his own folemn acknowledgment on re- cord j efpeciaily fince the lord who brings the writ of deceit feeks nothing more than, to reftore the land to the privileges of an- tient demefne. Others hold that the writ of deceit, and the reverfal thereon, entirely avoids the fine, and reftores the cognizor to the pofTenion of the land, for the cogni- zance though on record Ihall be no eftop- pel, becaufe it was made in a court which had no jurifdiiflion, and therefore the whole proceedings were coram nonjudice. Motion. 438. In fome cafes the Court of Com- Upon motion, although the king's filver has been paid, and the fine compleated, without putting the parties to the trouble and expence of a writ of error ; in the fame manner as they would fet afide a judgment obtained by trick or furprife. Hutchinfon's Thus where it evidently appeared to the cafe, 2 Lev. Co^rt, that a hufband had prevailed on ^ * his wife to levy a fine, fhe being but fix- tcen years old 5 the fine was vacated, and the flllCSf. 33^ the exemplification brought into court and Chap. Xiv. delivered up; the cominifTioners were al- ,„ f^ Watts V. Bir- Jb ordered to be profecuted. kctr, ante. 439. Although a fine can only be re- Moi/es »f verfed by a v/rit of error, yet its effefts aimding the may be avoided in leveral oiher ways. jj;^^^ There were four m.odes of avoiding a P!owd, 359. nne at common law, two by matters or re- ^ Bjackit. cord, and two by afls in 'pais. Thofe by Rep. 994. matter of record were, a real a£lion com- menced within a year and a day after the fine was levied j and an entry of a claim on the record of the foot of the fine itfelf, in this manner, talis venit et apponit clariie' tim Juiim. Thofe by a6ls /;; pais were, a lawful entry upon the land by the perfon who had a right; and in cafe that could not be done, then a continual claim. 440. By the ftatute 4 Hen. 7. all thofe /.a'isn. who are affedled by a fine, muft purfue their title by way of aftion or lawful en- Eiafier'scafe, try, fo that a claim entered on the record ^ ^^^"- >^' of a fine, would now be inefl^eflual. An action commenced within five years ^fcer a fine has been levied, will be fufH- cienc 332 Sfint^. Chap. XIV. cient to avoid it, although judgment be not obtained within Ceven years after. But fuch adion muft be profecutcd with effect, for if an adlion be con:imenced within the 1 Vent. 45. tinae prefcribed, and afterwards difconti- nued, it will not avoid a fine. Fitzhugh's 44'* The fuing out of a writ and de- cafe, livering it to the fheriff docs not amount to a purfuing of a claim or title by way of adion, unlefs the writ be returned by the IherifF. j5 Leon. 221. Comb. 249. 442. The acElion mentioned in the fta- tute 4 Hen. VII. muft be a real adionj fo that an ejedlment will not avoid a fine. z Bl. Rep. 443. A bill in chancery is not fuch a ^^'^* claim under the ftatute 4 Heu. VII. as will avoid a fine. 1 Chan. Ca. There is however an exception to this 2 BfRe ^ ^"^^' ^" ^^^ ^^^^ where a fine has been le- 994. vied of a truft eftate, becaufe no entry by the cejiui que truji, nor claim or other le- gal acV, will be fufficient to avoid the fine, , or fufpend the bar arifing from the non- claim j it can only be by bill in chancery, as the the claim to avoid a fine, ought to be chap. xrv. of a nature which correfponds with the c*nr%i/ cftate. 444. A fine may alfo be avoided by an Entry. a6lual entry made on the lands whereof the fine has been levied, provided the per- fon who feeks to avoid the fine has a right of entry; but if the right of entry be taken away and a right of a6lion only remains, as where a fine operates as a difcon- tinuance of the eftate, there an aftual en- try on the land will not avoid the fine, but » Vern. 213, a real a6tion muft be brought. 445. Where an eftate tail is difconti- 1 Tnft. :532.b. nued, the eftates in remainder and rever- H. Black, fion expeftant thereon are devciled, and the perfons intitled to fuch eftates are barred of their entry, and driven to their adion. An cftate tail maybe difcontinued by 1 10^.325. a. five different modes of conveyance. A feoffment, fine, recovery, relcafe, and confirmation with warranty. But no per- fon can create a diTcontinuance, who- is not in the actual pofTefilon of the eftate tail, by force of the intail, 446. Where filter. 4^6. Where the original conveyance of an eftate, is not by fine, but it is only le- vied as a confirmation of fome prior con- veyance, it will not in that cafe operate as a difcontinuance, or take away the entry of the remainder-man. Seymour*s_ Lord Cheney being tenant in tail, with i«Rep gc. J'emainder in tail to John Cheney j Lord Cheney conveyed the premiffes by bargain and fale inrolled, to IVilliam Eigham and his heirs, by force whereof he entered and was feifed, and, in a year afterwards, he levied a fine with proclamations to the faid Iligham and his heirs, with general war- ranty. Lord Cheney died without ifibe, and John Cheney the remainder- man in tail, entered upon the premifles. The queftion was, Whether his entry was law- ful or not ? It was refolved that the entry of John Cheney was not taken away by the fine, becaufe it did not difcontinue the eftate - tail, but only operated as a confirmation of the eftate of the bargainee, which was originally determ.inable on the death of the tenant in tail; whereas the fine confirmed it as Ions: as the tenant in tail had heirs of hi? Jrineisi. 335 his body. It was agreed that if the fine Chap. XIV. had been levied before the bargain and '-^'^r-^^ falc was executed, it would have difcon- tinued the eftate-tail, and devefted the remainder and reverfion, by which means the entry of "John Cheney would have been taken away ; but the eftate-tail not being difcontinucd, the remainder was not de- vefted or turned to a right, fo that 'John Cheney ftill continued in polTeflion of ir, and therefore the fine was no bar to him. 447. But where a fine is levied in pur- fuance of a covenant in a prior conveyance of an eftate-tail, as where a tenant in tail conveys his eftate by leafe and releafe, and covenants in the releafe to levy a fine, which is done accordingly \ in that cafe the leafe and releafe and fine will be con- fidered as one aiTurance, and will therefore operate as a difcontinuance of the eftate- tail. A perfon being tenant in tail-male, with Doe ex dtjn. remainder over in fee, in confideration of axu^-^'^1" \ a marriage, conveyed his eftate-tail by 2 Burr. 7J4. leafe and releafe to truftees and their heirs, to feveral ufes, and in the releafe he cove- nanted to levy a fine to the fame ufes. The 33^ Stints- Chap. XIV. The marriage took effe^l and the tenant in tall levied a fine purfuant to his cove* nanr. On the death of the tenant in tail with- • out ifiue, the remainder- man in fee made an aflual entry upon the lands to avoid the fine, and then brought his ejeftment. The queftion v/as, Whether the plain- tiff could maintain an ejeflment. It was contended that an ejeftment might be maintained, unlefs a difconti- nuance could be proved j that fi-om the authority of iS'^j/^zoKr's cafe, the fine did not operate as a difcontinuance, becaufe it pafied no freehold, the freehold having been conveyed by the leafe and releafe be- fore the fine was levied, which therefore only operated as a confirmation of the pre- ceding eftate. But the Court of King^s Bench were ; unanimoufiy of opinion, that the leafe and j releafe and fine operated as one affurance I and devefted the remainder in fee ; fo that ,f the plaintiff could not maintain his ejed- jment, but was put to his formedon, be- caufg ffl!C0. 337 caufe the operation of the deeds and fine Chap. XI v. ought not to be divided and confidered "«— ^r"*** diftinflly, as that would defeat the inten- tion of the parties and overturn a great nunnber of family fettlements t that the deeds of leafe and releafe were inconnplete until the fine was levied, and only operated as a declaration of the ufes of the fine, (o that the eftate-tail pafled by the fine : that this cafe was quite different from Sey- mour'Sj for in that cafe Lord Cheney did not kvy the fine until a year after the bargain and fale was inrolledj and it was exprefsly found by the verdid that the bar- gainee entered, and was feifed by force of the bargain and fale only ; fo that the bar- gain and fale was totally jiinconnefled with the fine, nor did it api.ear that any fine was intended to be levied at the time when the bargain and fale was executed. £,/[^. It fliould however be obfcrved i Inll. 337, that there can be no difcontinuance of ^' things lying in grant, fo that if a tenant in tail of a rent, advowfon or common, levies a fine, or makes a fecfi^ment with war- ranty, there is no difcontinuance, for no- thing paffes bi^it during the life of the tenant in tail, which is lawful i and as no Vol. I. Z injury 33^ Imce. Chap. XIV. injury is done to the liTue in tail, the re- mainder- msn, or the reverfioner, there h no difcontinuance. 449. With refpefl to the mode of mak- ing an entry it muft be on the land, and with an intention of claiming the freehold againft the fine. Anon. A fine having been levied, the lefibr of Skm. 412. j.j^^ plaintiff proved that at the gate of the houfe in queftion, he faid to the tenant, he was heir to the houfe and land, and forbade him to pay more rent to the de- fendant; but he did not enter into the houfe when he made the demand, on which it was agreed that the claim at the gate was not fufficient. Then it was proved that there was a court before the houfe, which belonged to it, and that though the claim was at the gate, yet it was on the land and not in the ftreer, and that was holden good without queftion. I.It. f. 419. 450- I^ ^ perfon is prevented by force 1 Inft. 253. or violence, from entering on lands whereof a fine has been levied, he muft then make his claim as near the land as he can, which in in that cafe will be as effecflual as if he had made an adlual entry. 451- The delivery of a declaration in 3 Euir. Rep. ejedment, does not amount to fuch an p^^'L' j^^ entry as will avoid a line, even though the 468. defendant appears to it, arid confefiTes leafe, entry and oufter, for there muft be an adlual entry made atjimo clainandi : whereas in an ejeftment, there is only a fictitious or fuppoied entry, for the purpofe of mak- ing a demife, and an aflual entry muft be made before the time when the demife is laid. Upon a fpecial verdifl in ejectment, it Berrington was found that a fine had been levied of ^- P^rkhuril, the premilies in queltioni and that the Andrews leflbr of the plaintiff entered into the pre- '^5- l>rowii s Co.- miflcs with intent to make the demife in in Pad. the declaration mentioned, but did not then make an acftual entry for the purpofe of avoiding the fine, but that after the demife laid the leflbr of the plaintiff made an ac- tual entry. It was infifted for the defendants, ift. That an afbual entry was neceffary to avoid the fine. And 2d. That the demife could Z 2 not 2iO .fii]t0. Ciap. XIV. not be laid before the lefTor had regalne.d ' ^ — ' the pofiefTion by the aiflual entry. 1 he Court was of opinion with the defendants on both thfcfe points; and on a writ of error in the Houfe of Lords it was argued for the plaintiiT, that a fine with procla- mations docs not, by force of the ilatiite 4 Ik/j. VII. operate as a bar to conclude grangers till after five years elapfq withotit entry or aftion; and therefore the verdict having found that the -lefibr of the plaintiff made his firft actual entry after the demife laid, he thereby avoided t,he operation of the fine, and was at liberty to lay the de- mife in his declaration, which is a mere fidion of law, as early as he thought fit after his right accrued, in the fame man- ner as if his title had flood independent of fuch fine, fo rendered ineffeftual wiihiii the plain intent of the ftatute : and if fuch entry was not good to maintain this de- mife, it muft fellow, that in every cafe where a fine is levied by a wrong-doer,, and not difcovered till two, three or four years afterwards, the iuterinediate profits between the tinie of levying fuch iinc, and* the entry of the lawful owner, muft be.ab- folutely loft, al-hough the fratuce give* five years to enter, and an entry at any Lime time v/ichin rne five years, purges the (^'i- Ovp. XI V. fcifin and the w.^ng fioiii the beginning, an.: brings the peri on To entering wirhin the lavins: of tht: ilazute, no all iriCeiKs and purpofds. On the other fide ic was faid, that an aflual entry is neccffary to avoid a fine, be- fore an ejeiflment can be brought, and it mud alfo be before the tinne of the de- mifej becaufe a fine is of that high nature, even at common law, that it difpoircfles all perfons claiming title, and confcquent- ]y a leafe to found the eie(5lment upon, cannot be made till the leflbr regains the poircflion. As to th;; entries found by the verdi(5l to have been made fubfequent to the time of the demife, they were of no ufe in the prefent cafe ; for the ejed- ment being originally void, could not be made good by any fubfequent a;; Thornycroft the fon made a will, and devifed to Forjler^ and it alfo came out by the laft anfwer, that Forjler had conveyed to Elizabeth Handajyde in fee. It alfo came out that the lands in queflion were com- prifed in an old fetdement 1722, and in a term of five hundred years thereby created for raifing annuities, which had been fatis- fied, but the term remained outftandingi fubjed to which term. Sir 'John thorny cr oft ^ the fon, took the lands in queflion. So that it was undoubted, that if there were no Other circumftances in the cafe, the court had a jurifdidtion, and lliould have decreed upon JTiueg. 375 Tipon the hearing of the caufe, that the bill Chap. Xiv^. Ihould be retained, with hberty for the plaintiff to bring an ejcdlmcnt, that the de- fendants, the devifees, fhculd not fct up the term of five hundred years i and, in cafe the will of Sir Jchn Thornycrcfiy the fon, fhould be produced in evidtrnce, the defen- dants fhould likewife produce at the trial the deed of 1745, and that all further di- re(5lions fhould be rcferved till after the trial was had. The only circurr fiances in the prefent cafe which differed from the above, and which were the grounds of difmifling the bill, were, that in Hilary term 1773, (the next after the death of Elizabeth Handajyde) the dcvifee levied a fine of all the devifed cftates, and alfo of the defcended ellatea (having entered upon both immediately after her death.) The original bill was filed in 1776. The five years non-claim ran from Michaelmas 1778. In OSlober 1781, the anfwercame in which difcovered the deed of 1745, and adrnitrcd it to have been in the hands of the devifci- from the lime of the death of Elizabeth Uandajyde ; and the anfwcr alfo ftated and infilled upon the fine and non-claim. The caufe was B b 4 heard ^iG iFinegf. Chap. Xiy. heard the firft o^ July 17 Sj, at which time the court fhould have added to the direc- tions above-mentioned. That the fine and non-claim fhould not be infifted upon at law, inftead of difmiffing the bill upon the ground of fuch fine and non-claim only, as the non-claim had elapfed pending the fuit in Chancery, and therefore the court ought not to have permitted the defendant to take advantage of it at law. For a court of equity will not fuffer the rights of the parties to be changed, pending the fuit in a cafe within the jurifdidtion of the court, and where the court can relieve; therefore if a truft eftate is before the court in a lis pendensy and a fale be made of the truft eftate, without aftual notice of the caufe to the purchafer, the court at the hearing will decree the relief againft the purchafer, which the plaintiff in the caufe was intitled to. But it is otherwife after the caufe is at an end, for then the party muft have exprefs notice of a decree, as he muft of a judgment at law, to afFe6t him with equity. So in the cafe of a fine, equity will not fuffer a non-claim compleat- ed, pending the caufe, to prevent the court from doing equity j otherwife (as Lord Hardwiike ffnesf. 577 llar^zvicke exprciTrd it in i Atk. 390.) it chip. X!V. would trip up the jurifdiction of this court, if you will not allow (where it is a proper matter or equity) a bill to prevent the run- ning of a fine. So where a court of equity has diredled an a6lion, the defendant has be^n reftrained from fctting up the feature of limitations, which has run pending the fuic in equity. On the other fide it was contended, that the title of the appellants, if they ever had any, was a clear title at law; it needed no affiftance of a court of equity to bring it to a fair difcufTion : and accordingly the mo- ther of the appellant Pincke and the appel- lant Thornycroft brought an ejedlment, which might have been fairly tried without any fuch afnftance j and there was now no obftacle to a legal determination of the rights of the appellants, except the fine. That there was no ground for a court of equity to interpofe, to remove the legal bar created by the fine. It was apprehended the farm at Neiaingtoji was devifed by the will J but fuppofing the contrary, there was not in the cafe any circumftance which could give a court of equity a controul over the 37^ if ine^. Ch^n. XIV. the legal title of the refpondents, nothing ' ^ which could form a legal obligation upon their confcience, not ro fet up the fine. The appellanrs attennpted to impute fraud to the refpt-ndtn's or thrir folliciror ; but the bill did not flatc Ajc h a cafe as war- ranted the imputation, much lefs was it made out in proof. A fine was a matter of record op{?n to the \nfp£<51:ion of every onej the kgiflature had given it an opera- tion to bar all cbims not aflferted in due time, and it was therefore the duty of every perfon having a claim, to inform himfelf whether there might be fuch an impedi- ment to the affcrtion of it. Not difclofing to an adverfary that a fine had been levied, which might in time be a bar to his claim, could not be deemed a fraud. It was en- deavoured, therefore, to give to the con- verfation of the foUicitor for the defendant and the foUicitor for the plaintiff in the ejeflment (of which there was no evidence but the anlwers) fuch a turn as might make it appear fomething like fraud. But the foUicitor for the defendant merely men- tioned a claim made by perfons to whofc apparent title he was then unable to give any anfwer, and which had therefore excited in his mind much apprehenfion for his client's KnCjS. 379 clicm's title ; and what he communicated Clnp XlV. was not only true, but (according to the information he then had) was the whole truth, though a fubfequent accidental dif- covery put an end to this alarming claim, which, if it had prevailed, was fuperior to the title of the heirs, as well as of the dz- vifee of Mrs. llandafyde. It was true, ti.e heirs countermanded their notice of trial of the eje6lment, but their own judgment decided their condudt. It was alTcrted by the appellants, that if the ejeftment had proceeded to trial, the fine muft have been difcovered, and five years not having then tlapfed from the hit proclamation, the heirs might have enter- ed to avoid the fine. But this alTcriion was not founded in truth; the will of Sir John Thornycroft would have been a fufBci- cnt defence, and there would have been no neceflity for fetting up the fine. It was ordered and adjudged, " That ^^^'h Feb. "the faid decree or order of difmiirion *''^^* " complained of in the faid appeal fhould " be reverfed. And it was further order- " ed and adjudged, that the bill fhould be " retained for tv/elve month?, and that the ** plain- ^30 ' JFfnejS. Chap. XIV. « plaintiffs fliould be at liberty in the " mean time to bring fuch action or adlions " at law as they fliould be advifed, 6ff. " And it was further ordered and adjudged, " that the faid defendant Edward Thorny- " croft fhould not infift in ftich aftion or *' aftions, or on any trial to be had there- ** on, on the fine mentioned in the plead- *' ings, or on any non-claim which had " enfued thereon, or any other fine or non- " claim which might have incurred fince " filing the original bill." End of tkf First Vo^-ume, TArr LIBRARY ruflv 1 ^ -Q», .uuv.Rfn.^^,Mi«f vmhV'i f frCILl'^'',, I 1