opinion, and that of all the rest of the Judges, to be, "That they did not find by any record or precedent in their law-books of any fine which had been per fected, that had been vacated for fraud or force in Parliament, or any other place." The question was then put, whether the fine was obtained by force; and it was resolved in the affirmative. The bill passed, but the following protest was entered, signed by Id. pa. 209. Lord Chancellor Hyde and several other Lords, "That fines are the foundations of the assurances of the realm, upon which so many titles depends and therefore ought not to be shaken; nor hath there any precedent occurred to us wherein any fines have been vacated by judgment or act of parliament, or otherwise, without consent of the parties; the eye of the law looking upon fines as things always transacted by consent, and with that reverence, that no averment whatsoever shall be against them when they are perfected." In the House of Commons Commons counsel were heard for and against this bill; and the House being satisfied that they had full power and 13 & 14 jurisdiction of the cause, the bill passed. Jour. vol. 8. pa. 344. Car, 2. c.27. Jenk. 254. 68. A fine may also be avoided by an averment 3 Rep. 80 a. of fraud, in consequence of the statute 27 Eliz. c. 4., where it appears to have been levied to secret uses, Tit. 32. c. 26 for the purpose of deceiving purchasers: or by an & 27. averment of usury, under the statute 13 Eliz. c. 8. Equity. 69. Although a fine duly levied is as effectual and Courts of binding in a court of equity, as in a court of law; because it is one of the common assurances of the realm, and was originally instituted for the purpose of securing those who were in possession of lands against all claims whatever; yet if any fraud or undue practice appears to have been used in ob gate, 1 Roll. Rep. 115. Day v. Hun- taining the fine, the Court of Chancery will then relieve against it, as much as against any other conveyance; for though it might be extremely improper and inconvenient to admit of an averment in a court of common law against a fine obtained by fraud, because it would be dangerous to permit the evidence of a record to be questioned in any case whatever, yet as there was a method in which relief might be given in cases of this kind, without contradicting the principles of the common law, it was highly proper that a court of equity should adopt it; and the Lord Chancellor appears to have exercised this jurisdiction as early as the reign of Queen Elizabeth. 70. The Court of Chancery however does not absolutely set aside a fine so obtained, nor does it send the party aggrieved to the Court of Common Pleas to ante, c. 10. get it reversed; but it considers all those who have § 32. taken an estate by such fine, with notice of the fraud, as trustees for the persons who have been defrauded; and decrees a reconveyance of the lands, on the general ground of laying hold of the ill conscience of the parties, to make them do that which is necessary for restoring matters to their former situation. With respect to any technical error in a fine, or irregularity in the commissioners who took the acknowledgment 4 Bro. Parl. of it, these are matters only cognizable in the Court of Common Pleas; because a fine being of the same nature as a judgment, is properly examinable in that court only where it is entered. Clark v. Ward, Prec, in Cha. 15. Ca. 70. St. John v. 1 Ab.Eq.259. Tot. 101. 71. The plaintiff being simple, was drawn in to levy a fine of his lands. It was ordered that the lands should be re-assured, if the defendant did not pay a valuable consideration; or if he failed of payment thereof, then the said lands should be re-assured. v. Smith, 72. A bill was filed by one Coleby, to be relieved Coleby against a purchase made from the plaintiff's father; 1 Vern. 205. suggesting that he had been circumvented and imposed upon by the defendants. On the other side the defendants insisted on their purchase; and it appeared that there were, first, articles for the purchase under hand and seal; and some time after that, a conveyance actually made and executed, in pursuance of these articles, and the purchase-money paid and secured; and after all this, a fine levied by the plaintiff's father to the purchaser. Lord Keeper North set the purchase aside, because there appeared to have been some art used to persuade the plaintiff's father to sell the lands. v. Brayfield, 2 Vern. 307. 73. A person prevailed on a woman to levy a fine Woodhouse of some houses, and to execute a deed declaring the uses thereof to himself and his heirs. It being proved that the woman, at the time of levying the fine, declared that she must make use of some friend's name, in trust for herself; and she having afterwards declared in her will, that she only levied the fine for the better enabling her to dispose of her estate; and having devised it to J. S. subject to the payment of her debts; the Court of Chancery decreed, not only that the lands were liable to the debts of the testatrix; but also that the person to whose use the fine was declared, should convey the houses to J. S., according to the will. 74. By the common law, if an infant or idiot has by any neglect or contrivance been permitted to levy a fine, his declaration of the uses thereof will be good at law, so long as the fine remains in force; and if the fine is never reversed, his declaration of the uses will be binding and conclusive on him, and his heirs for Penne v. antec. 5.§47. Hob. 224. 1 Ves. 304. Rushley v. Mansfield, Toth. 42. Addison v. 2 Ves. 403. ever: because the law will not presume that a fine, which is a solemn act on record, has been levied by a person labouring under such disabilities; and therefore, until the fine, which is the principal, is annulled, the declaration of the uses thereof will remain good. Thus stands the common law on this point; but as the Court of Chancery has in many instances compelled persons, who had obtained estates under a fine in a fraudulent manner, to reconvey them to those who were really entitled thereto; so that Court will interpose its authority in cases of this kind, and not suffer the declaration of uses of a fine levied by an infant or idiot to bar his heirs; as no species of fraud can be more evident, than that of obtaining a convey. ance from a person of this description. 75. Thus where one Addison by a first and second 2 Vern. 678. inquisition was found a lunatic in 1706, from the year 1689, without any lucid interval. The defendant had got a mortgage, and at last an absolute pur chase, at a great undervalue, by deeds, fines, and recoveries. 3 Atk. 313. c. 10. § 32. The Court set aside the purchases. 76. It has been already stated, that a fine levied by a trustee will not be allowed by the Court of Chancery to protect either the trustee or any person having I Vern. 149. notice of the trust. Thus in the case of Bovey v. Smith, the Lord Keeper put this case to Serjeant Maynard-" A. seised in fee in trust for B., for full consideration conveys to C., the purchaser having notice of the trust; and afterwards C., to strengthen his own estate, levies a fine. Whether B. the cestui que trust be not in that case bound to enter within five years? and the counsel were all of opinion that he was not; for C. having purchased with notice, notwithstanding any consideration paid by him, was but a trustee for B.; and so the estate not being displaced, the fine cannot bar." 77. In the case of Shields v. Atkins, Lord Hard- 3 Atk. 563. wicke said it would be dangerous, where a person entered on the foot of a trust, and never made any declaration of his having performed the trust, to construe this such an entry, as that a fine and nonclaim afterwards would be a bar. And in the case of Lord Pomfret v. Lord Windsor, he observed, that a 2 Ves. 482. court of equity would not suffer a fine levied by a trustee, to bar an equitable right. And that if a practice of this kind was suffered to prevail, a court of equity might as well be abolished by act of parliament. 78. A court of equity will not suffer a fine and nonclaim to bar any charge on lands, where the person who levied the fine had notice of such charge. 2 Atk. 631. 2 Vern. 662. 79. Thus where a person to whom lands were de- Drapers vised, subject to legacies, levied a fine, on which v. Yardley, there was five years non-claim, and afterwards granted a rent-charge and mortgaged the lands; It was decreed, that the fine and non-claim was no bar to the legatees under the will: the devisee having no title but under the will, was implied notice; and all other purchasers, if any, to be brought in and contribute. 80. It is a principle of equity, that if a stranger enters upon an infant's estate, and receives the profits, he shall be looked upon as a trustee for the infant; and that the laches of a trustee shall not prejudice the cestui que trust. 81. Thus where A. devised lands to trustees until his debts were paid, and then to an infant and his Allen v. Sayer, 2 Vern. 368: |