*P. 22.

heir; but she and also the heir in Borough-English
is as much heir as is a heir ex parte maternȧ].
But he that is privy in blood only, and not in
estate also, is not within these statutes, neither
shall he be barred by the fine, and therefore if lands
be given to a man, and the heirs females of his
body, and he hath a son and a daughter, and the
son levy a fine and die without issue, this is no bar
to the daughter, for howsoever she be heir of his
blood, yet she is not the heir to the estate, nor
shall need to make her conveyance to it by him.
[The reader is to keep in mind the distinction be-
tween fines,1st. as Conveyances; 2d. as Bars to
Intails; 3d. as Bars by Non-claim: To fines as
conveyances the proclamations are immaterial;
while proclamations are essential to the operation
of fines as bars to issue in tail and by non-claim.]
The strangers that are to be concluded by the fine,
are either, 1st. such as have present right and
no impediment, and these are barred if they
make not their claim within five years after the
proclamations (2); [viz. five years, computed
from the last proclamation.] 2. Such as have

present right, but have impediment of infancy,
&c. and these are barred if they do not make
their claim within five years after the impediment
removed; [or if there be several co-existing impe-
diments in the same person, one arising before the
other is determined, as infancy and marriage during
infancy, then after the several impediments are re-
moved.] 3. Such as have no present, but future
right upon cause precedent (3), and they are
either without impediment, and then they are barred
if they claim not within five years after their right
doth accrue; or they have impediments, and then
they are barred if they claim not within five years
after the impediment removed (4). 4. Such as
have neither present nor future right at the time of
the levying of the fine, by reason of any matter

(2) Though the statutes of 4 H. 7, and 32 H. 8, have made the operation of fines stronger against parties and privies than they were at common law, yet they have enlarged the privilege of strangers to avoid them; for, by those statutes, strangers have five years from the fine to make their claim where they have a present right at the time of the fine levied; and where it accrues after the fine, they have five years from the time of such accruer; whereas by the common law, in both these cases, they had only a year and a day from the entry of the silver at which time the land passed. Bac. Abr. Fine, (F.) (3) As persons in reversion or remainder. Co. Lit. 372.

(4) And by the 4 Ann, c. 16, § 16, no claim or entry to avoid a fine with proclamations will be sufficient, unless within one year after such claim an action is commenced and prosecuted with effect. See 2 Bl. Com. 356. Williams' Fraud, 1 vol. p. 319, n. 1,

375-378.

before the fine, but whose right groweth either entirely after, or partly before and partly after the fine, and these are not barred at all by the fine, but they may make their claim, &c. when they will. [As in the instance of an estate to A. on condiPlow. 5:38. 337. tion; and he levy a fine before the condition broken, this fine never could bar the right of entry by reason of the condition; but in the same circumstance, by a singular anomaly and departure from principle, the fine of A. might become a bar to his wife's right to demand dower by her non-claim. Menville's case, 13 Rep. 19; 1 Prest. Abstr. 419; 3 Prest. Abstr. 374.] And parties, privies and strangers to fines that are barred thereby, are such as have natural capacities or civil, for both these are barred. And therefore [at the common law] it is held, if such a corporation as hath an absolute estate and authority of his possessions, so as he may maintain a writ of right thereof, as mayor and commonalty, dean and chapter, &c. levy a fine of their lands, they and their successors are barred presently, [by five years non-claim;] but if a bishop, dean or prebend, without assent of the dean and chapter, or a parson and vicar, without assent of the patron and ordinary, had levied a fine, this would not [by its own operation] have barred the successor; neither will it bar now with their assent, for they are restrained by divers statutes; [but each successor, being the head of the corporation, and the corporation, may be barred for his time, by five years non-claim running, during the time of such successor] (5). So also such persons are barred by the fines that are levied by others, if they make not their claim in time; as if one disseise a corporation aggregate of land belonging to their corporation, [and which they could alien in fee,] and after levy a fine of it with proclamations, and they do not make their claim, &c. within five years, hereby they are barred (6). [But if they are restrained from alienation, then the corporation will

(5) 1 Eliz. c. 19. 13 Eliz. c. 10. Ante, p. 7.

(6) But not their successors after their decease, for it would have been of none effect to have prohibited corporations from barring the right of their successors by conveyances made by themselves, and to have left them power by their permission or sufferance and non-claim to bar it. 11 Co. 78, b. And accordingly fine levied by copyholder of a dean and chapter, and five years passed without claim by him who was dean at the time, yet the fine did not bar the succeeding dean. Ventr. 311. See further as to the operation of fines and nonclaim, with respect to corporations aggregate or sole, Wils. 13. 1 Cruise, Essay, p. 178.

be barred by the non-claim only during the time of
each successive head of the corporation, allowing
five years from the succession of each head of the
corporation.] 2. Where the ancestor is barred
by the fine, there for the most part the heir [in- Co. 9. 105.
cluding the heir in tail] is barred also. And there-
fore, if tenant in tail be disseised, and the disseisor
levy a fine with proclamations, and the tenant in
tail suffer five years to pass without claim, &c.
hereby he and his issues are barred for ever; so that
the heir [and even an heir in tail] doth suffer for the
laches of his ancestor; [and a bar by the heir for
the time being, under the intail, will be a bar to
all successive heirs in tail, for each successive heir
will not, as has sometimes been supposed, have a
new and successive period of five years. Plowd.
357-] 3. The estates that shall be barred by the
fine are estates by the common law, or by copy- Co. 9. 104.
hold, in fee-simple, fee-tail, or for life, or for
years; the estates also of tenant by statute
[merchant or staple, and] elegit (7), and of guar-
dians in chivalry, and of executors that have
land until debts and legacies be paid (8). [But
an authority to executors to sell, will not be barred
while it remains an authority; but an estate limited
under such authority, and prior to the fine, may be
barred. In short, no estate or interest is barred by
non-claim on a fine, unless it be before the fine, or
by the operation of the fine (as in the instance of
a fine by tenant for life devesting the remainder,
&c. or of a fine by tenant in tail creating a disconti-
nuance,) converted into a right of entry or of action;
or be in a state of adverse claim. The case of
dower in the wife of the conusor of the fine, is an
excepted and anomalous case. If a man has a fee
subject to an executory devise, or springing or
shifting use, or a base or determinable fee, his fine
with proclamations never could become a bar to
the title afterwards arising under this executory
devise, &c. A fine by a person who has a fee sub-
ject to a condition, is subject to the like observa-

(7) Also a title of entry for a condition broken, a power appendant or in gross, a power of revocation, and a writ of error, may be respectively barred by a fine. See the Essay on Fines, 147 to 151, and the cases there cited.

(8) Provided the lands are extended. 2 Inst. 517. Essay on Fines, (ed. 1783,) p. 145. But the interests of tenants by statute merchant, statute staple, or elegit, cannot be barred by a fine until they have extended the lands, or pursued their rights in some other manner, or until they have no right to enter on the lands, and therefore cannot be put out of possession. Essay on Fines, 186.

Plow. 378.

Co. 5. 124.

tion.] And therefore, if one enter upon and put out
a copyholder of land, and levy a fine thereof, and
the copyholder suffer five years to pass, and make
no claim, &c. the copyholder and his lord both
are hereby barred for ever (9). [The alleged rea-
son is, that the lord and tenant have severally pre-
sent interests. If the copyholder held for life, a
new right of entry would (it should seem, sed qu.)
arise on his death.] And if a lease be made
for years, and the lessor or another, before entry
of the lessee [and while he has a present existing
right of entry,] levy a fine with proclamations,
and the lessee doth not make his claim, &c. within
five years, hereby the lessee is barred of his in- *P. 23.
terest for ever. [But if the fine be levied by a
stranger, the lessor may bring his assise, &c. within

five

*

years, or may enter at any time within five years after the expiration of the term. And if the lessor levy a fine, and the lessee has merely an interesse termini, the fine would not disturb the interest of the lessee, or ever become a bar.] 4. The Bro. Fines, 123. things whereunto these statutes do extend, are lands and tenements, and not a rent or other profit apprender out of the land; and therefore, if I have a rent, common, or estovers out of land, or a way over land, or power to sell the land, and a fine is levied of the land itself, and I do not make my claim of my rent, &c. within five years, yet I am not hereby barred of my rent, &c. And for this cause it is, that if a tenant in ancient demesne levy a fine of his land [with proclamations, in the court of Common Pleas,] and five years pass, the lord is not hereby barred to avoid it [by a writ of disceit,] for herein [by this writ] he claimeth not the land, but his ancient seigniory (10). [Or rather, his suit is to avoid the fine, as suspending his seigniory, and then the maxim non potest adduci exceptio ejusdem rei cujus petitur dissolutio, protects him from the operation of the fine; Bac. Maxim. 1. But if a second fine with proclamations be levied, the second fine and the non-claim of the lord may be

(9) And the lord shall not have five years after the death of the copyholder, even if he was a copyholder for life. See 9 Co. 105, b. That copyholds are within the statute of 4 Hen. 7, see Co. Comp. Cop. 126. Chet. 69. As to copyholds being within the Statute of Fines, the affirmative is said in Bac. Ab. Copyhold, (C.) But note the manner of putting the authorities in the margin of the books were contradictory.

(10) See accordingly 1 Šalk. 210; and further, as to the force and effect of fines in ancient demesne, Vin. Abr. Fine, (N. b. 4.) 4 Inst. 270. What things are barred by fine, see Vin. Abr. Fine, (Z.) E 3

Zouche's case,

373.

pleaded in bar to the right of the lord to maintain
his writ of disceit; Bac. Elem. Maxim. 1.] 5. The Plow. Lord
time in which they must make their claim or bring 370.
their action, that have present right and no impe-
diment, is within five years after [the last] procla-
mation had, and the time for them which have
impediments is within five years after the impedi-
ment removed (11). 6. The time within which they Dyer, 3. Co. 3.
must make their claim or bring their action whose 86, 91. Plow.
right [to enter, &c.] doth happen afterwards, if
they have no impediment, is within five years after
the time that their right doth [first] accrue; and if
there be any impediment, within five years after
the impediment removed. 7. The persons whose
right is saved and preserved are mentioned in the
first and second saving of the statute of 4 H. 7,
and they are strangers, and not parties nor privies.
S. They that have benefit by the first saving of the
statute shall have none by the second saving; for
he that will be within the second saving, to have
benefit by it, must be, 1. Another person; 2. The
right must come and accrue to him first; 3. His
right must be upon some cause or matter before
the fine; 4. It must come to him after the fine
and proclamations. 9. No fine shall bar any es- Co. 5. 124.
tate in possession, reversion or remainder, which 9. 106.
is not devested and put to a right at the time of the
fine levied (12); [or by the operation of the fine, as
in the instance of a fine by a tenant in tail, ope-
rating as a discontinuance, or a fine by tenant for
life, operating to devest the remainders, &c.] And
therefore, if one levy a fine of my land while I am
[by myself or my tenant, or by any person con-
nected with me, in privity of estate as a prior tenant
for life, &c. Carhampton v. Carhampton, 1 Irish
Cases, p. 567.] in possession of it, this fine will
not hurt me (13). So if the tenant of the land,
out of which I have a rent or common, &c. levy

(11) If a person has several impediments, he shall have five years after the last impediinent is removed. 1 Leo. 215. Plow. 375, a.

(12) And he that at the time of the fine levied had not any title to enter shall not be barred, for the fine does not bar the estate but binds the right; and when the fine does not turn the estate to a right, there needs no claim. Sir T. Raym. 149. 3 Mod. 196. But this must be understood in the case of a future interest, and not of a tenant in tail barring his issue, by stat. 32 H. 8.

(13) For I may show that I was seised before and at the time of the fine levied, and that partes finis nihil habuerunt tempore levationis finis, and by this avoid it. 2 Inst. 517. Cro. Jac. 60. 1 Vent. 81. Or, if one gets possession under a forged deed, and levies a fine and thereon, a court of equity would decree against the fine. Per Lord Hardwick, 1. Cartwright v. Pultney, post, 35.

no