Stowell v. Jenk. Cent. 6. Case 74. subject, that this question ought not to be disturbed. It would be mischievous to refine and to make nice distinctions between the cases of voluntary and involuntary disabilities; but in both cases, when the disability was once removed, the time begins to run. Mr. Just. Ashurst and Mr. Just. Grose concurred, and judgment was given for the defendant. 50. The privileges of infancy, coverture, &c. are only given to those to whom a right first accrues, and in whom it first attaches; for if a person to whom a right first accrues, and who is not under any disability, dies before the expiration of the five years allowed him by the statute to make his claim, and such right descends upon his son or heir at law, who is then under age, or labouring under any of the other disabilities mentioned in the statute, still such son or heir must make his claim before the five years are expired, which commenced in the lifetime of his ancestor, otherwise he will be for ever barred because the right did not first accrue to him, but to a person who was not under any disability. 51. John Stowell being seised in fee, was disseised by John Zouch, who levied a fine with proclamations. Three years after the fine was levied John Stowell died, without having made any entry or claim to avoid the fine, leaving his grandson and heir at law, Thomas Stowell, the demandant, an infant of the age of six years, who made no claim during his minority, but entered on the lands within one year after he had attained his full age. It was determined by a great majority of all the Judges in the Exchequer Chamber, after many solemn arguments, 1°. That Thomas Stowell being a stranger to the fine was clearly barred by the body of the act, unless he would take ad vantage of the exception in favour of infants, &c. ; and that he was not within the exception, because it only extends to such infants, &c. to whom a right accrues at the time when a fine is levied: whereas, in the present case, no right accrued to Thomas Stowell at the time when the fine was levied, his grandfather being then living. 2°. That Thomas Stowell was originally within the first saving of the statute, as heir to his grandfather, to whom the right first accrued, being included in the words, "saving to every person and persons and to their heirs ;" but not having pursued his remedy within the time prescribed, he could not now take any advantage of the first saving: and with respect to his infancy at the time of his grandfather's death, it could be of no service to him, because the statute only gives the privilege of infancy to those to whom a right first accrues; but where a right first accrues to a stranger who is of full age, and the five years begin to run, if such stranger dies before the expiration of the five years, leaving his heir under age, the heir can have no privilege of infancy, but must make his claim before the expiration of the five years which began to run in the time of his ancestor. 3°. That Thomas Stowell was not within the second saving, which preserves to all other persons such right, title, &c. as shall first grow, remain, or descend to them after the said fine engrossed, for several reasons: 1. Because in consequence of the words other persons, this saving only extends to those who are not comprised in the first; and it was not the intention of the act to aid those persons in the second saving, who are comprehended in the first. 2°. The words, first grow, remain, or descend, only extend to the person in whom the right first attaches after a fine Case of Persons dying under their Disabi lities. 2 Inst. 519. Cro. Eliz. 219. Sav. 128. is levied; whereas no new right accrued to Thomas Stowell after the fine was levied, his only title being as heir to his grandfather, in whom the right attached when the fine was levied. 52. Where a person to whom a right accrued to lands, of which a fine had been levied, laboured under any of the disabilities specified and excepted in the statute 4 Hen. VII. and died before his disabilities were removed; it was formerly a doubtful point whether the heir of such a person was obliged to make his claim within five years after the death of his ancestor, or was allowed an indefinite period of time for that pupose. 53. This doubt arose from a difference of opinion between Lord Coke and Anderson. Lord Coke, in 1 Leon. 211. his report of the case of Sunie v. Howes, states, that Thomas Cotton being tenant in tail of a moiety of certain lands, and tenant for life of the other moiety, with remainder to William Cotton his eldest son in tail, William Cotton went to Antwerp, Thomas Cotton levied a fine with proclamations of all the lands, and William Cotton died soon after at Antwerp, without having ever returned to England, leaving a son named William under age, who entered on the lands. It was adjudged, that as to the moiety whereof Thomas Cotton was tenant in tail, William the son of William was barred by the statute 4 Hen. VII.; but as to the other moiety, whereof Thomas Cotton was only tenant for life, the entry of William the grandson was lawful, and avoided the fine; for though William the son could not take advantage of the clause which saves the right of those who are beyond sea, provided they made their claim within five years after their return, because William the father never did return; yet as persons who are out of the realm at the time when a fine is levied, having a present right, are excepted out of the body of the act, which makes the bar; therefore, where a person was beyond sea at the time when a fine was levied, and never returned, he was within the exception made in the body of the act, and his heirs might make their claim at any distance of time. That it was the same where an infant, not being a party to a fine, and having a present right, died during his infancy, his heirs might make their claim at any distance of time. That the same doctrine took place with respect to a man non compos, who died in that situation; or a man in prison, who died before he had recovered his liberty; or a married woman, who died in the lifetime of her husband for all these were within the reason adjudged, of a person who was out of the realm and never re turned. The same doctrine appears to have been laid down 4 Rep. 125 b. by Lord Coke, in his report of Beverley's case. 54. In Leonard's report of Cotton's case it is said, 1 Leon. 211. the Court held, that as to the moiety whereof Thomas Cotton was tenant for life, the fine was no bar, but that William the grandson might enter at any time within five years after he attained his full age; for William his father was not bound by the statute 4 Hen. VII., because he was beyond sea at the time when the fine was levied, and never returned; but that by the equity of the statute, his issue should be allowed five years to make his claim, from the time he attained his full age. And Anderson, Ch. Just. is reported to have said, that although William the father died beyond sea, yet if his son did not make his claim within five years after the death of his Dillon v. Leman, 2 H. Black. Rep. 584. father, being of full age, and without impediment, he should be for ever barred. 55. The doctrine here laid down by Lord Anderson has been confirmed by the following determination... 56. William Nanton died seised in fee simple of the lands in question, in 1758, leaving Mary Dillon, mother of the plaintiff, his heir at law; upon the death of William Nanton, one Leman entered into the said lands, and became tortiously seised thereof, and being so seised, in Hilary term, 1765, levied a fine sur cognizance de droit come ceo, &c. of the said lands, whereupon proclamations were duly had; the said Mary Dillon being under coverture at the time of levying such fine. On the 20th February 1765, the said Mary Dillon died under coverture, leaving the plaintiff, then of the age of 21 years, of sound mind, out of prison, and within this realm, her son and heir. No entry or claim was made on or to the said lands by or on behalf of the said Mary Dillon in her lifetime, nor at any time after, by her husband, nor by the plaintiff, until the year 1787, when the plaintiff made an entry to avoid the said fine; and the question was, whether, on the above case, the plaintiff was barred by the said fine from recovering the said lands. * This case having been sent by the Court of Chancery to the Court of Common Pleas, for the opinion of that Court, and having been twice argued there, Lord Ch. Justice Eyre declared shortly the opinion of the Court, "that the exception in the first branch of the statute 4 Hen. VII., and the proviso at the end of it, were to be taken together; that being so taken, they did not amount so much to an exception as a saving, the true meaning of which was, that the |