Infants, &c.

39. It has been stated that at common law, and Exceptions also by the statute de modo levandi fines, all those in favour of who laboured under certain disabilities at the time when a fine was levied, were not affected by it; but they or their heirs might avoid it at any distance of time. This doctrine was altered by the statute 4 Hen. VII. which excepts married women, unless they are parties to the fine, and all persons then being within the age of 21 years, in prison, or out of the realm, or not of whole mind at the time of the said fine levied, not parties to such fine, out of the body of the act. But at the end of the second saving is the following clause respecting them.

40. "And if the same persons at the time of such action, right, and title accrued, descended, remained, or come unto them, be covert de baron, or within age, in prison, or out of this land, or not of whole mind, then it is ordained, &c. that their action, right, and title be reserved and saved to them and their heirs, until they come and be at their full age of 21 years, out of prison, within this land, uncovert, and of whole mind; so that they or their heirs take their said actions, or their lawful entry, according to their right and title, within five years next after that they come and be at their full age, out of prison, within this land, uncovert, and of whole mind; and the same action pursue, or other lawful entry take, according to law."

41. "And also it is ordained, &c. that all such persons as be covert de baron, not party to the fine, and every person being within the age of 21 years, in prison, or out of this land, or not of whole mind, at the times of the said fines levied and engrossed, and by this said act afore except, having any right or title or cause of action to any of the said lands and other

Plowd. 366.

hereditaments, that they or their heirs, inheritable to the same, take their said actions or lawful entry, according to their right and title, within five years next after that they come and be of age of 21 years, out of prison, uncovert, within this land, and of whole mind, and the same actions sue, or their lawful entry take and pursue, according to the law; and if they do not take their actions and entry as is aforesaid, that they and every of them, and their heirs, and the heirs of every of them, be concluded by the said fines for ever, in like form as they be that be parties or privies to the said fines."

42. In consequence of these two clauses, all those who labour under any of the disabilities therein specified, either at the time when a fine is levied, or when a right to lands, whereof a fine has been levied, first accrues to them, are allowed five years from the removal of their disabilities to make their claim.

43. Although the stat. 4 Hen. VII. allows infants 1 Leon. 215. five years after they have attained their full age to make their claim; yet an infant may, if he pleases, make his claim before he attains his full age.

Plowd. 366.

Plowd. 375.

1 Leon. 215. 2 Atk. 614.

44. In the case of Stowell v. Zouch, Brown and Saunders said, that if an infant be in his mother's womb when a fine is levied, such infant will be allowed five years from the time he attains his age of 21 years to make his claim; for though he is not comprehended within the letter of the act, which only mentions infants under the age of 21 years, and therefore does not extend to those who are unborn, yet they are within the intention of the act, and will be aided by the exception.

45. It was agreed by the counsel in the same case, that if a person labours under several disabilities at the same time, as if a woman is covert, under age, of

insane mind, and in prison, at the time when a fine is levied, or when a right to lands, whereof a fine has been levied, accrues to her, and one or more of those disabilities are removed, still the five years given by the statute will not commence, till after all her disabilities are entirely removed.

46. It is stated by Plowden, in his report of the Plowd. 366.

same case, that it was affirmed by many of the Judges and denied by none of them, that he heard, that although the persons comprised in the exception were not under such defects or impediments at the time of he fine levied, but became so against their will, after the fine levied, and before the last proclamation, and were in such degree at the time of the last proclamation, they should not be bound to five years next after the last proclamation, but should have five years next after their impediments removed.

47. It was also said in the same case by Brown and Idem. Saunders, that if a stranger to a fine, who is of sound mind, becomes non sane, or is imprisoned, the third year after the proclamations made, and so continues till the five years are expired, and afterwards becomes of sound mind, or is out of prison, he shall not be concluded by the fine: for laches in prosecuting his right cannot be imputed to him who wants liberty or memory; and therefore such person is not comprehended in the intent of the statute. But in this case, if a stranger to the fine, in the third year, had gone beyond sea, or had taken a husband, and so had continued, till the five years were passed, there he should be bound; for the going beyond sea, or taking husband, are voluntary acts; but insanity or imprisonment are involuntary. In a subsequent page it is Id. 375. however said, that if the persons whose impediments

are once removed; within a month after, fall into

Doe v. Jones, 4 Term R. 300.

any impediments again, and continue so all the five years; the five years before commenced shall proceed, and non-claim within the same five years shall bind the party and his heirs.

48. It has been settled in the following modern case, in conformity to the opinion of Plowden, that when once the five years, allowed to persons labouring under disabilities to avoid a fine, begin, the time continues to run, notwithstanding any subsequent disability.

49. In a special verdict it was found, that in Trinity term 1775, a fine was levied of the premises in question, and the last proclamation was made in Easter term 1776. That the lessor of the plaintiff, when the fine was levied and proclaimed, was an infant; but attained the age of 21 in February 1784. That he was then at large in England, and continued so to be till the following December, when he was imprisoned for debt, and detained in prison continually till September 1789, when he made an actual entry on the lands.

The question was, whether the lessor of the plaintiff was barred by his non-claim, during the five years which elapsed immediately after he attained his full age. It was contended on his behalf, that no express adjudication had ever been made on this point, and therefore the Court was at liberty to put such a construction on the statute, as would best answer the intention of the legislature; and consider whether, after the first disability was removed, a second disability arising should stop the progress of the fine during its continuance; in other words, whether the legislature did not intend that the parties included in the exception should have five years, clear from every disability there mentioned, to prosecute their claim. That this question was touched upon in Stowell v.

Zouch; but as there were coutradictory dicta there by the Judges, the question still remained undecided. In introducing these exceptions, the legislature certainly intended that the parties labouring under the disabilities mentioned, should have the full benefit of the indulgence given them. Every reason which operated for the exception in the first instance, was equally urgent as to any subsequent disability. The act was intended to allow all such persons five years, clear from any of the disabilities mentioned; the words implied as much; and as the act was restrictive of the right which such persons had before, it ought to be construed literally and strictly.

On behalf of the defendant it was argued, that the exception operated only on condition that the party prosecuted his right within five years after the disability was removed; here the disability of infancy was removed in February 1784, and the lessor of the plaintiff made no entry to avoid the fine till September 1789. The five years began the instant he was of age, and continued to run notwithstanding the subsequent imprisonment. That when the disability was removed, the time began and continued to run, was clear from the opinion of the majority of the Judges in Stowell v. Zouch.

Lord Kenyon said, he never heard it doubted, till the discussion of this case, whether, when any of the statutes of limitations had begun to run, a subsequent disability would stop their running. If the disability would have such an operation on the construction of one of those statutes, it would also on the others. He was very clearly of opinion, on the words of the statute of fines, on the uniform construction of all the statutes of limitations, down to that moment, and on the generally received opinion of the profession on the