bill; but as to the advowson of the vicarage, the only evidence of enjoyment insisted on by the respondent, was a presentation about the year 1702, which was during the lunacy of Lord John; and, since that time, Lord Francis, his heir, presented the last incumbent, and regained the possession of the vicarage. It was therefore hoped, that the said plea should not bar the appellants of a full discovery of the respondent's title, but that the order for allowing the same should be reversed. On the other side, it was contended, that Robert Lowe, the respondent's grandfather, and under whom he claimed, was a purchaser of the rectory and the advowson of the vicarage, by the fine levied in 1664, for 10007., without any notice of any other title; and therefore, by the known and established rules and practice of courts of equity, the respondent ought not to be obliged any further to discover or disclose his title; nor were the appellants entitled to the aid of a court of equity in respect to such title. That by the fine, proclamations, and nonclaim thereupon, and by the length of peaceable possession and enjoyment, which the respondent's grandfather, father, and brother, and those claiming under them, had successively of the said advowson, under the said fine and purchase; the title under which the appellants, by their bill, claimed the same, was utterly and effectually barred and defeated both at law and in equity; and, therefore, the order for allowing the plea ought to be affirmed, and the appeal dismissed with costs. After hearing counsel on this appeal, it was ordered and adjudged, that the order therein complained of should be reversed; and that the plea should stand for an answer, with liberty to except so far, as to oblige the respondent to discover any conveyance or conveyances made by William Lord Bre

2 Atk. 389.

Pincke v.

4 Bro. Parl.

Ca. 92.

reton and Elizabeth his wife, and William Brereton, Esq. their son, or any or either of them, to Robert Lowe, the respondent's grandfather, alone, or jointly with any other person or persons; and to discover any deed or deeds, declaring the uses of a fine, in the pleadings mentioned to be levied in the 16th year of King Charles II., or declaring the uses of a fine in the pleadings also mentioned to be levied in the vear 1667.

89. Although a bill in equity is not such an action as will avoid a fine, if the subject matter of the suit be of legal jurisdiction; yet still, in some instances, the filing a bill in a court of equity will prevent the bar arising from a fine and non-claim. And in cases of this kind, the Court will direct a trial at law, with an order that the defendant shall not set up the fine in bar of the plaintiff's claim; upon the same principle that a court of equity sometimes directs that the defendants in a suit of law shall not plead the statute of limitations.

90. Sir John Thornycroft, Bart. being entitled to Thornycroft, the remainder in fee of the estates in question, ex1 Bro. Rep. 289. pectant on the decease of his sister Elizabeth, the then wife of General Handasyde, devised the same to Henry Forster in fee. After the decease of Sir John Thornycroft, disputes arose between Mrs. Handasyde (who was heir at law of Sir John Thornycroft) and Mr. Forster, respecting the validity of this will, which were compromised, and Mr. Forster, in consideration of 6301., conveyed all his interest in the estates devised by the said will to General Handasyde and his wife in fee as joint tenants. Mrs. Handasyde survived her husband, and, having no issue, she devised, among other estates, "her estate and manor of Stockwell in the parish of Lambeth, in the county

of Surry, and all thereunto belonging, to Henshaw Thornycroft, and his heirs male ;" and appointed him her executor. Upon the death of Mrs. Handasyde, Henshaw Thornycroft entered into possession of all the estates whereof she was seised, among which was a farm situated in the parish of St. Mary Newington, but which was not within the manor of Stockwell, and therefore did not pass by the will; and in Hilary term 1773, levied a fine and suffered a recovery of all those estates, in order to bar the entail. Previous to this, Elizabeth Pincke and Ann Thornycroft, who were the heirs at law of Mrs. Handasyde, filed their bill in the Court of Chancery against Henshaw Thornycroft, praying, that the said Thornycroft might set forth the dates and short contents of all the deeds, evidences, and writings in his custody or power, relating to the estates whereof Mrs. Handasyde died seised; and that he might likewise set forth and discover of what lands of the said Mrs. Handasyde he was in possession, which were not comprised in her will, and for an account of the rents and profits of the said premises received by him since the decease of Mrs. Handasyde, and for a delivery of all deeds relating thereto. The defendant, by his answer, denied being in possession of any estates belonging to Mrs. Handasyde, but what were comprised in her will. The heirs at law soon after discovered, that the farm at Newington was not devised by the will, and therefore brought an ejectment for the recovery of it. Notice of trial having been given just before the Summer assizes 1778, a few days before the trial was to come on, the solicitor for the defendant informed the solicitor for the plaintiff of the will of Sir John Thornycroft, and that the production of that will, and setting up the title of Henry

Forster under it, would nonsuit the plaintiff in ejectment; but did not mention the fine or the deed by which Forster's title was conveyed to Mrs. Handasyde, that deed being in fact not then discovered. The heirs at law gave notice of trial for the Lent assizes 1779, when Henry Thornycroft. set up the fine and non-claim; and there having been no actual entry, the plaintiffs were nonsuited. Upon this, the plaintiffs filed a bill of revivor and supplement, praying, that under these circumstances, the defendants might be restrained from setting up the fine in any manner to the prejudice of the plaintiffs. The case was heard before the Lords Commissioners Loughborough, Ashhurst, and Hotham; and on behalf of the plaintiffs it was contended, that they should have proceeded to trial at the Summer assizes 1778, which was before the expiration of the five years, if they had not been prevented by the information of the solicitor; and, therefore, this was a proper case for the interference of a court of equity. They insisted further, that the filing of the bill in the Court of Chancery was of itself sufficient to prevent the bar, arising from the fine and non-claim, taking place.

For the defendants, it was urged, that there was no impropriety in the solicitor's conduct; that the Court would not interfere to prevent the operation of a fine, unless in cases of fraud; and that the bill being, in substance, a mere bill for discovery, could not operate to prevent the bar arising from the fine.

Lord Loughborough." If it were made out that the plaintiffs were prevented from trying their cause by fraud, I should think, under the principles of this Court, the defendants ought to be restrained from setting up the fine as a bar; but here the plaintiffs take it for granted that a bill filed in this Court,

for any purpose, will prevent the statute of limitation, or a fine, barring. All legal interests are bound by the fine; if the subject-matter of the suit be of legal jurisdiction, the bringing a suit in equity will not bar the operation of the fine. If a demand of a debt be made here, if it be a legal debt, this Court being applied to for a discovery, will not prevent the statute of limitations from running; but if it be for payment out of assets, for which this is the proper jurisdiction, there the filing of the bill is the commencement of a proper suit. I do not say that a case may not exist, where the bad faith of parties may make a ground to prevent a fine from barring; but here was only a communication of the truth of the case; the attorney stated all he knew: it was not his duty to give notice of the fine. It was not in proof that it was in consequence of this they did not try the cause: it was their own judgment that decided upon it. A legal bar has taken place in consequence of a legal provision; whether that provision be wise or not, it must bind. No hardship has occurred, in consequence of which they can say, that in conscience the fine should not be set up. This is a legal title, over which this Court has no jurisdiction, and no fraud has intervened. The bill must therefore be dismissed."

Lord Commissioner Ashurst." I am of the same opinion where a bill is filed, with a prayer for equitable relief, the policy of the law suspends the statute of limitations; just as in the case of the commencement of an action. But, with respect to a fine, the case is different; the bringing an action is not sufficient to bar the operation without an actual entry; no more can the bringing a suit here be so, unless the entry was prevented by fraud.

In any