47. There is a custom in most manors, that copyholds may be entailed; but even if a fine was allowed Vide Tit. 37. to be levied of a copyhold in the court of the manor c. 2. Estates held by Statute Merchant, &c. Ognel v. 1 Mod. 217. Powers ap of which it is held, it will not bar such an entail, because it is not levied pursuant to the statute 4 Hen. VII., unless it is allowed by the custom to have that effect. 48. Estates held by statute merchant, statute staple, and elegit, are comprehended within the statute 4 Hen. VII., and may therefore be barred by a fine and non-claim, provided the lands be extended. 49. Thus, upon a trial at bar, the Court delivered it as law to the jury, that where lands were actually extended, on a writ of elegit, the tenant by elegit might be barred by a fine and non-claim; and that where an inquisition upon an elegit is found, the party has the possession before entry, and may bring an ejectment, or action of trespass. 50. So in the case of Deighton v. Grenville, which will be stated in the next chapter, all the Judges agreed, that, although the cognizees of statutes merchant did not enter, yet that they had possession in law, in consequence of their extents and liberates, which gave them a right of entry; and, therefore, they might be barred by a fine. 51. Powers appendant, or in gross, may be barred pendant and by a fine levied of the lands to which such powers 1 Inst. 237 a. relate, by the person to whom the powers are re3 Rep. 83 a. served; because, by the fine, the person acknow in gross. ledges all his right and interest in the lands to be vested in another, and therefore it would be repugnant to that acknowledgement that he should ever afterwards claim any power over those lands. Besides, a power appendant, or in gross, being part of the old dominion, is considered as an interest which may be released. Case, 52. C. Digges being seised in fee, covenanted to Digges's stand seised to the use. of himself for life, remainder 1 Rep. 173. over; reserving to himself a power of revocation, by deed, indented and enrolled. C. Digges revoked the uses; but before the deed of revocation was enrolled, he levied a fine of the lands. It was resolved, that the fine being levied before the enrolment of the deed of revocation, until which time the revocation was imperfect, had destroyed the power. 53. In the case of Penne v. Peacock, Lord Talbot ante, § 38. said, that the power being coupled with an interest, and annexed to the wife's inheritance, it was de stroyed by the fine: since, that a lease and release, Vide Bullock other conveyance, would carry with them all v. Thorne, or any powers that were joined to the estate. 54. A power of revocation may also be destroyed in part, by a fine being levied of part of the land; and yet the power will continue good as to the residue. 55. Where a person, who has a power appendant or in gross, levies a fine of the lands to which the power relates, and afterwards by deed declares that such fine shall enure as an execution of his power, the fine and declaration of uses will, in that case, be considered as one assurance, and will not destroy the power. Tit. 32. c. 18. § 10. 1 Inst. 237 a. Touch, 501. 56. Thus, in the case of Herring v. Brown, it was Tit. 32.c. 16. objected, that Sir J. Williams, by levying the fine, § 36. without any precedent declaration of uses to which it should enure, had destroyed his power of revocation: for the deed, being subsequent to the fine, was ineffectual, because there was an intermediate time, Carth. 22. between the leying of the fine and the execution of On a writ of error, in the Exchequer Chamber, 1 Freem.486. this judgment was reversed, by the opinion of six judges against two: it being determined that the fine and declaration of uses were to be considered as one and the same conveyance, and operated as an execution, and not as an extinguishment of the power. It was agreed, that a fine alone, without a deed to declare the uses of it, would have extinguished the power; but that it was otherwise where there was a deed declaring what the intention of the parties was when the fine was levied; and although the date of the deed was subsequent to that of the fine, for no other reason, perhaps, but because the fine was levied in the vacation, and was dated as of the preceding term, still it was possible that the deed was executed at the time the fine was acknowledged so that it would be unreasonable to make a forfeiture or extinguishment of a right merely by relation, which was but a fiction of law. Doug. 45. S. P. 57. This doctrine has been confirmed by the Court of K. B. in the case of Doe v. Whitehead, which will be stated in a subsequent chapter. So that now, whenever a fine is levied, and a declaration of the uses of it is afterwards executed, the fine and de claration of uses will be considered as one assurance. Powers col 58. A power collateral to the land, which is not But not joined with an interest, cannot be barred or destroyed lateral. by a fine levied by the person to whom such a power 1 Inst. 237 a. is reserved: because it is considered as a bare and naked authority, which cannot be released or divested. Tit. 32. c. 18. 59. Thus it is said by Lord Ch. J. Popham in 1 Rep. 174. Digges's case, that if a feoffiment was made to A. in fee, to divers uses, with a proviso that it should be lawful for B. to revoke those uses; B. could not in that case release his power; and a fine levied by him would not extinguish it; for it was merely collateral, and the land did not move from him, nor should the party be in by him, nor under him. 60. It follows from the same principle, that a power, collateral to the land, cannot be barred the fine of a stranger. Shorrall, 61. Thus, where a person, by a proviso in his Willis v. marriage settlement, gave his intended wife a power. 474. to dispose of 100%. to such persons as she should appoint, to be paid within one year after his decease; and, in default of payment, one John Moreton was empowered to make a lease of certain lands, to raise that sum. The wife, in a year after the death of her husband, made an appointment of the 100%., but it was not paid. The heir of the husband levied a fine of the land, and five years passed; afterwards, the appointees of the 100%. brought their bill to be paid that sum. ; Lord Hardwicke observed, that though, by the several statutes relating to fines, all right, claim, and interest which strangers had, were barred by a fine yet that such a stranger as John Moreton, who had no interest, but only a bare naked power, and who could not have made an entry, was not affected by it. A Right of Mayor of London v. 62. A right or title of entry for a condition broken, may be barred by a fine levied by the grantee or devisee of the conditional estate. 63. Thus, where lands were devised to trustees Alsford, and their heirs, upon condition that they should pay Cro.Car.575. a certain sum of money every year, for the support of a schoolmaster, &c.; and on non-performance of W. Jones, 452. Touch. 154. Cromwell's the trusts, the lands were devised over to other perThe trustees neglected to perform the trusts, sons. and levied a fine of the lands. It was determined that the fine was a good bar to the persons who had a title to enter on breach of the condition. 64. A title of entry for a condition broken may also be barred by a fine levied by the grantor of the conditional estate; as if a person makes a feoffment upon condition, and before the condition is broken, the feoffor levies a fine of the same lands, either to the feoffee, or to any other person; the condition will be thereby discharged for ever. 65. But if the fine had been levied for the purpose of corroborating the conveyance by which the condition was created, it would not have destroyed the condition; for in that case the fine and conveyance would be construed together, and would operate as one assurance. 66. It seems that a right or title of entry on any other account may also be barred by a fine. Thomasin v. 67. H. Mackworth, upon his marriage, made a Mackworth, feoffment to trustees and their heirs, to the use of Carter, 75. himself for life, remainder to his eldest son in tail, reversion to himself in fee; and covenanted to pay 2001. to the trustees within three months after the birth of each child; with a declaration, that if such payment was not made, then the feoffees and their |