373 n. Damport v. Gouldsb. Menvill's c. 49. $44. Plowden was of opinion, that in a case of this kind the wife was not bound to make her claim within five years after the death of her husband, but might claim her dower at any indefinite period of time. The contrary, however, was expressly determined in 4 Hen. VIII.; and that determination has ever since been held to be good law. 25. If the wife's title to dower does not accrue at the death of her husband, but commences at a subsequent period, she will be allowed five years from the time when it accrued. 26. A married man levied a fine with proclamations, and was afterwards indicted and outlawed for high treason. Some years after his death, his heirs reversed the outlawry by writ of error, and then the wife claimed her dower. It was resolved, that although more than five years had elapsed since the death of the husband, yet the fine was no bar to her; because, as long as the attainder for treason stood in force, she could not claim her Tit. 6. c. 5. dower; but as soon as the outlawry was reversed, a § 2. And Bishops, Plowd. 538. title to dower first accrued to her, and therefore she was within the second saving, and had five years from the reversal of the outlawry to pursue her right. 27. Although the statute 4 Hen. VII. does not extend to the possessions of the church, yet in case Tit. 31. c. 2. a bishop, dean, vicar, prebendary, or other ecclesias § 50. tical person neglects to make his claim within five years after a fine is levied, of an estate to which he is entitled in right of his bishoprick, &c. he will be barred during his life; but his successors are within the second saving, and will be allowed five years to avoid the fine, from the time of their becoming entitled to the lands. 28. In the same manner all persons having offices And Persons having for life, to which lands and tenements are annexed, Offices. must make their claim within five years after a fine Plowd. 538. has been levied of such lands and tenements; otherwife they will be barred during their lives. each successive officer is within the second saving, and will be allowed five years to avoid the fine, from the time when he becomes entitled to the lands. But 29. Strangers to fines having several different and And Strangers distinct rights, by several titles, accruing at different having differtimes, shall have several periods of five years allowed ent Rights. them to avoid a fine; that is, five years after the accruing of each title: so that if a right accrues to a stranger, when a fine is levied, which he neglects to pursue within the limited time, and another right accrues to the same stranger, at any time after; he is then comprehended within the second saving of the statute, as to the new right, upon the principle that, quando duo jura in una persona concurrunt, æquum est ac si essent in diversis, This construction is certainly not consistent with 9 Rep. 105 b. the letter of the statute; for in consequence of the words, other persons, it appears clearly to have been the intention of the legislature, that no person who was comprehended in the first saving, should take advantage of the second saving; and Lord Ch. J. Plowd. 372. Dyer, in the case of Stowell v. Zouch, contended that this was the true construction of the statute; but, however, the law has always been held to be other- Cro. Eliz. wise. 220. Tucker, 30. Tenant for life levied a fine to a stranger; the Laund v. person in reversion neglected to enter within five Cro. Eliz. years after the fine was levied; afterwards the tenant för life died: 254. 3 Rep. 78 b. It was determined that the reversioner should have another period of five years, from the death of infra, c. 12. the tenant for life, to make his claim; for in this case two distinct rights accrued to him; the first upon the forfeiture which the tenant for life committed by levying the fine, and the second by the acquisition of the reversion, in consequence of the death of the tenant for life. 31. It is laid down by Lord Coke, that if a lessee for years is ousted, and the person in reversion disseised, and the disseisor levies a fine with proclamations, both the lessor and lessee are barred, if they do not make their claim within five years after the fine has been levied; and the lessor will not be allowed a new period of five years, after the expiration of the term, to make his claim; because the lessor might have brought an assise or other real action, immediately after the fine was levied; and being thus comprehended within the first saving, he cannot take advantage of the second saving. This doctrine has, however, been since contradicted, and is not now held to be law. 32. A lessee for 21 years, who was seised in fee of other lands in the same manor, made a lease for life of all his lands, and levied a fine with proclamations of as many messuages and acres of land as comprehended, not only the lands whereof he was seised in fee, but also the lands which he held for years. He afterwards continued in possession, and paid his rent. Upon the expiration of the term, the lessee claimed the inheritance of the land which he had held by lease, and would have barred the lessor, by means of the fine and non-claim. But it was determined by all the Judges, that the lessor should have a new period of five years from the expiration of the term, to make his claim, and avoid the fine. 2 334. 33. This determination is said by Lord Coke to have been founded on the circumstances of fraud which appeared in the case; the principal of which was, that the lessee continued in possession after he had levied a fine, and regularly paid his rent, so that the lessor could have no notice that a fine had been levied of his lands. But in other books the judge- 1Vent.241,2. ment is said not to have been founded on the fraud which appeared in the case, but upon the true construction of the statute. And the doctrine that where a lessee for years makes a feoffinent, and then levies a fine, the lessor need not make his claim within five years after the fine has been levied, but is allowed another period of five years, from the determination of the terni, was finally established in the following case. Taucred, 219. 2 Lev. 52. 34. A lessee for years made a feoffment, and then Whaley v. levied a fine; five years passed; and the question 1 vnt. 241. was, whether the lessor was barred by his non-claim T. Raym. during the five years which elapsed immediately after the fine was levied; or should be comprehended 1 Atk. 571. within the second saving of the statute 4 Hen. VII. and be allowed another period of five years, from the expiration of the term, to avoid the fine. The Court resolved that the lessor should have five years from the expiration of the term to avoid the fine; in the same manner as if a lessee for life had levied a fine; the cases being exactly similar. 35. No person who is within the first saving of the statute 4 Hen. VII. can be comprehended within the second saving, unless the second right which accrues to him is different from the first right: for if it is only the same right which accrues a second time, Salvin v. Cro. Car. 156. the nonclaim, during the five years after the right first accrued, will be a good bar. 36. A tenant in tail made a lease for three lives, which was not warranted by the stat. 32 Hen. VIII. c. 28.; he then levied a fine, and died without issue. Clerk, S. C. Five years passed without any claim by the person in remainder; but on the expiration of the lease he entered. Sawle v. W. Jones, 208. Of the third ante, c. 5. § 21. and ante, c. 9. § 26. The Court resolved that he was barred by his non-claim during the five years which elapsed immediately after failure of issue of the tenant in tail; and should not have a new period of five years, after the expiration of the lease; because the lease being void as to him, he had no other title after the expiration of the lease than he had before; for his title arose by the death of the tenant in tail without issue, when he might have brought his formedon. 37. There is a third saving in the stat. 4 Hen. VII. in the following words" Saving to every person or persons, not party nor privy to the said fine, their exception to avoid the same fine by that, that those which were parties to the fine nor any of them, nor no person or persons to their use, nor to the use of any of them, had nothing in the lands and tenements comprised in the said fine, at the time of the said fine levied." 38. This clause is merely a confirmation of the old infra, c. 14. law, by which a fine might be avoided by showing that the parties had no estate of freehold in the lands; but it has been already observed, that it is not necessary for a tenant in tail to be in possession of the estate infra, c. 14. tail when he levies a fine; and the issue in tail being here described by the word privy, are not within this saving. |