principle, that the King cannot be barred by a fine to which he is not a party, nor is the royal prerogaTit. 31. c. 2. tive in this instance taken away by the statute § 59. 9 Geo. III. c. 16. Ecclesiastical Corporations. 3. Ecclesiastical corporations, and in general all ecclesiastical persons, who are seised in right of their churches only, and have not an absolute estate in their possessions, being restrained from alienation by several statutes, are not only prohibited from levying fines, but cannot even bar their successors by their non-claim. Magdalen 151. Howlett v. 3 Keb. 775. ante, c. 11 4. Thus, in a case in 13 Ja. I. where a fine and years non-claim was set up in bar to an ejectment, brought by the Master and Fellows of Magdalen College, one of the points was, whether the Master and Fellows were barred by the fine and non-claim: and it was resolved, that the right of the College was not barred; for the words of the stat. 13 Eliz., which prohibits all ecclesiastical corporations from alienation, were, "That all leases, gifts, grants, feoffments, conveyances, or estates, to be made, had, or suffered by any master and fellows of any college, &c. to any person or persons, &c. (except leases), shall be utterly void and of none effect, to all intents, constructions, and purposes." So that when a fine was levied, and no claim was made for five years, there was a conveyance permitted and suffered by the master and fellows of the college; and it would have been of no effect to have prohibited the master and fellows themselves from making conveyances of their lands, if they were allowed to have a power, by their permission and non-claim, to bar their successors. A bishop, dean, or vicar, may, however, be him. self barred by his own non-claim, as has been stated in a former chapter. 5. It is a rule of law, that no estate or interest can Estates not divested. be barred by a fine, unless it is divested out of the real owner, either before the fine is levied, or by the operation of the fine itself: that is, unless the real owner is put out of possession of such estate or interest; and that while he continues in possession, a fine will not affect him. This doctrine is stated arguendo in Saffyn's case 5 Rep. 123 6. in the following words: "No fine levied with proclamations shall bind any but those who are put out of possession, and have but a right; for if their estate or interest be not divested out of them, but remains in them as it was ab initio, they need not make an entry or claim to that which never was divested." 6. Lord Coke states the second resolution in Mar- 9 Rep. 106 a. garet Podger's case thus: "That no fine nor warranty shall bar any estate in possession, reversion, or remainder, which is not divested and put to a right; for he who has the estate or interest in him cannot be put to his action, entry, or claim, for he has that which the action, entry, or claim would vest in him or give him." There is a considerable inaccuracy in this passage, if the words "divested and put to a right" are understood conjunctively, and in that strict technical sense which the law annexes to them. The word "divest" signifies nothing more than a mere deprivation of the possession. But the words, "put to a right," have a much more extensive signification, as they mean a de * Divest, devestire, is contrary to invest; for as investire signifies possessionem tradere, so devestire means possessionem auferre. COWELL'S Dict. privation, not only of the possession, but also of the right of possession; for where an estate is turned to Tit. 29. c. 1. a right, the owner has only the jus proprietatis, or $12. ante, c. 11. $51. Focus v. mere right of property. If therefore the above passage be taken strictly, it will appear to be unsupported by any authority; for though it may be necessary that an estate be divested, before it can be barred by a fine; yet it is by no means necessary that it should be put to a right. 7. Thus in the case of Stowell v. Zouch, when Stowell was disseised by Zouch, his estate was merely divested; that is, he had only lost the actual possession; but it was not turned to a right, for he still continued to have in him both the right of possession and the right of property; and yet all the Judges agreed that he was barred by the fine and non-claim. 8. The rule of law therefore clearly is, that no person can be barred by a fine, unless his estate is divested, or turned to a right; and he has only a right of entry, or a right of action, left in him; and where an estate is turned to a right, it is necessarily divested, though not e contra. 9. A person who was seised in fee, for the continuance of his estate in his name and family, made a lease for 500 years to a trustee, in trust that he himself should receive the profits during his life, and that afterwards his brother should receive them. Some time after, the lessor, being in possession according to the trust, covenanted with other parties, for the same considerations, to stand seised of those lands to the use of himself for life, remainder to the use of his brother, &c., and that the said lease and all other estates made or to be made by him should be and enure to the same uses, and then levied a fine to the uses of that deed. A question arose, whether the term of 500 years was barred by the fine and non-claim. Lord Hale observed, that nothing had been done whereby the estate of the lessee was divested or displaced; for the lessor continuing in possession, by permission of the lessee, as must be presumed, he was only tenant at will to the lessee, and therefore his fine had no operation. 10. If a person who has made a lease to trustees, and has still continued in possession, makes another lease of the same lands, and levies a fine to confirm it, the first lease will be divested by the second, so that it will then be barred by the fine. v. 1 Vent. 55. 1 Lev. P. 1. 270. 11. The Marquis of Winchester made a lease for Freeman 100 years, in trust to attend the inheritance; the Y. Barnes, lessee entered; and then the Marquis entered and received the profits, and afterwards made a lease for 54 years, and covenanted to levy a fine to confirm it, which he levied accordingly, and five years passed without any claim by the first lessee. It was adjudged by the Court of C. B. and affirmed by the Court of K. B. upon a writ of error—1°. That when the Marquis entered on the lessee for 100 years, he became tenant at will to him, to which estate it was not always requisite that there be the express consent of both parties, but if there was any thing tantamount it was sufficient, as here the trust implied that the lessor should take the profits, being the cestui que trust, which included at least an estate at will. 2o. That when the Marquis made the lease for 54 years, though this was not a disseisin, because the reversion was in the lessor himself, who made the lease, yet by this, the lease for 100 years was divested, displaced, and turned to a right. Or where the Possession is not adverse. Ford v. Grey, 6 Mod. 44. 1 Salk. 285. 3o. That being so divested, it was barred by the fine and non-claim. 12. It is not only necessary that a person should be out of possession, to be affected by a fine; but it is also requisite that the party levying the fine should have an adverse possession, inconsistent with that of the person to be barred; so that if the possession of the person who levies a fine be consistent with that of any other person, such other person will not be affected by it. 18. Thus it has been settled that the possession of one joint tenant is the possession of the other, so as Tit. 31. c. 2. to prevent the effect of the statute of limitations; and § 23. that where there are two joint tenants in fee, if one of them levies a fine of the whole, it does not amount to an ouster of his companion, but only severs the joint tenancy, though he is in of the old use again. Tit. 19 & 20. Future ante, c. 12. Podger's 14. The possession of one coparcener, or of one tenant in common, is the possession of the other; nor does the bare perception of all the rents and profits by one, amount to an ouster of the other, so as to make him liable to be barred by a fine. 15. In the case of future interests, such as estates. in remainder and reversion, although the persons entitled cannot be put out of possession, yet as they have vested interests, such interests may be divested; and it has been already shown, that estates in remainder and reversion may be divested, so as to leave only a right of entry in the persons entitled to them, when the prior estates determine; in which case they may be barred by fine. But where estates in remainder and reversion are not divested, a fine has no operation on them. 16. A copyhold estate was granted to John Pod9 Rep. 104. ger, and Mary and Elizabeth his daughters, for three Case, |