Stevens v. 2 Wils. R. Rutland's 40. Jenk. Cent. 321. 1 And. 43. Case 109. 3 Rep. 91 a. was not tenant in tail of the rent, but of the land: the rent was another thing than that which was entailed, and therefore the fine was not levied of any thing entailed; so that the rent is out of the provision of the stat. 32 Hen. VIII. 21. A tenant in tail being guilty of murder, levied a fine before conviction, and it was doubted whether it should bar the issue for the lord's benefit. The Court inclined to think it should; but no judgment was given. 22. A fine sur concessit will bar an estate tail as long as it continues in force: therefore any estate created by a fine of this kind will be good against the issue in tail. 23. Although a fine levied by a tenant in tail may be defeated by a person claiming some particular estate in the lands of which the fine is levied, yet it will still continue to be a good bar to the issue in tail. 24. A tenant in tail discontinued in fee: he afterwards disseised the discontinuee, and levied a fine with proclamations: the discontinuee entered on the land, and avoided the estate which passed by the fine as to himself. The question was, whether the heir in tail was remitted or not; and the Judges were unanimous that the heir in tail was not remitted, Hunt v.King. but was barred by the stat. 32 Hen. VIII., although the estate which passed by the fine was avoided. Vide infra S. P. Plowd. 227. 7 Rep. 32 a. 25. Where the King is tenant in tail, he may, by a fine levied on a grant and render, bar his estate tail; because, it having been determined in Lord Berkeley's case that the King was bound by the statute de donis, it was but reasonable that his Majesty should take advantage of those statutes which enable tenants in tail to bar their estates. in Tail need not be in 26. It is not necessary that a tenant in tail should The Tenant be in the actual possession of the estate tail, in order to be capable of barring his issue by fine: for Possession. the statute 4 Hen. VII. has expressly excluded 2 Inst. 517. parties and privies from averring, quod partes finis nihil habuerunt; and the statute 32 Henry VIII. makes a fine levied of any lands entailed to the person so levying the same, or to any of his ancestors, a sufficient bar against such person and his heirs. A fine, therefore, with proclamations, duly levied by a person having the right of an entail in him, will be a good bar to his issue; although, at the time when the fine was levied, he had never entered on the estate tail. 27. Lord Zouch brought a formedon in the descen- Zouch v. der for the moiety of a manor, against one Bamfield; Bamfield, 3 Rep. 88. who pleaded in bar that John, great grandfather of 1 Leon. 75. the demandant, levied a fine sur cognizance de droit, with proclamations, of the said moiety, which was granted and rendered by the same fine to the said John and his heirs, whose estate the tenant had. Lord Zouch replied, that at the time when the fine was levied, and at all times after, the said Bamfield was seised of the land in his demesne as of fee. And on solemn argument it was determined by all the Judges, that the demandant, being heir in tail to the person who levied the fine, could not aver the continuance of the land in a stranger; nor that partes finis nihil habuerunt, because the statutes 4 Hen. VII. and 32 Hen. VIII. bound the estate tail, although the person who levied the fine was not then in possession of it; which, Lord Coke observes, was the first determination on this point. 28. A fine levied by a tenant in tail in remainder, expectant on an estate for life, or an estate Caseof Fines, 3 Rep. 84. Jenk. 274. 3 Rep. 90 a. Hunt v.King, 610. tail, will be a good bar to the issue of the person who 29. A. being tenant for life, remainder to B. in tail, reversion to B. and his heirs; B. levied a fine with proclamations of the estate tail, during the life of the tenant for life, and it was adjudged to be a good bar to the estate tail, under the words of the statute 32 Hen. VIII. 30. If a tenant in tail makes a feoffment of the estate tail, and afterwards levies a fine of it, his issue will be thereby barred. $1. William King, the grandfather, being tenant in tail, enfeoffed Richard King, the father, in fee; and afterwards, William King disseised him, and levied a fine, with proclamations, to one Hitchcock. The father entered, and the cognizee of the fine entered on him. After the death of the grandfather and father, the son brought a formedon for the recovery of the land, to which the fine was pleaded in bar: the demandant pleaded the entry of his father, and judgment was given for him. A writ of error was brought in B. R., and error assigned in matter of law, that this fine was a good bar to the issue in tail, by the statute 32 Hen. VIII.; for it was not to be compared to a fine at common law, nor to fines levied by other persons, because, in this case, it was sufficient that the fine was levied by the person who had the right of the estate tail in him, or to whom the land was entailed, although none of the parties to the fine had any estate of freehold in possession, remainder, or reversion, in the land whereof it was levied; as it was adjudged in the case ante, § 27. of Zouch v. Bamfield. The Court being of this opinion, the judgment was reversed. Jenk. 275. 32. Although a tenant in tail be disseised of the 3 Rep. 90 a. estate tail, yet if, during the disseisin, he levies a fine to a stranger, it will bar his issue; who will not be allowed to plead that his ancestor was not seised of the estate tail when he levied the fine. 33. If the issue in tail levies a fine in the lifetime Touch, 26. of his ancestor, who is then seised of the estate tail, the ancestor himself may afterwards levy a fine, and thereby bar his issue, and also the person to whom the issue levied the fine. So that in all cases of this kind, it is understood, that the tenant in tail dies without barring the estate tail, by which means it descends upon the issue. sometimes 34. In the case of a lineal descent, the issue in tail A Possibility may be barred by the fine of his ancestor, although of an Estate at the time of levying the fine, the ancestor had only barrable. a possibility of an estate tail, which never took effect: because the issue, in making his title, must convey his descent through such ancestor, which makes him a privy to him. 35. Lands were given to A. and his wife in spe- Archer's cial tail. A. died, leaving issue, a son, who disseised Case, 3 Rep. 90 a. his mother, and levied a fine with proclamations. Hob. 333. It was resolved by all the Judges, that this fine was a good bar to the issue of the son; although the son, at the time when he levied the fine, had only a possibility of an estate tail, his mother being then alive. For the statute 32 Hen. VIII. ought to be expounded according to the letter of it; and as the land was entailed to the ancestor of the person who levied the fine, although such ancestor was alive, so that no estate or right had descended on the person who levied the fine, which he could pass or extin'guish, yet as the statute says, " entailed to the person so levying the same, or to any of his ancestors," in Grant'sCase, the disjunctive, it was adjudged, that the fine did bar the right which afterwards descended to him, not only as to himself, but also as to all his issue. 36. This principle was carried much farther in the following case. W. Grant devised his lands to John Grant, when 10 Rep. 50 a. he should attain the age of twenty-five years, to hold to him and the heirs of his body. John Grant, the devisee, after he had attained the age of twenty-one years, but before he was twenty-five, levied a fine of the lands thus devised; and the question was, whether it should bar his issue. Cro. Eliz. 122. 2 Leon. 36. It was resolved that the estate tail was barred by this fine, although John Grant, when he levied it, had but a bare possibility of an estate tail. Lord Coke says, no judgment was given; but Croke and Leonard, who have reported this case by the name of Johnson v. Bellamy, say, judgment was given that the estate tail was barred by the fine. And in Sir Thomas Raymond's Reports, 149, it is said, that although the estate was not barred by the statute 4 Hen. VII. it was well barred by the statute 32 Hen. VIII. in consequence of the words, "all fines levied by any person or persons, &c. of any manors, &c. before the time of the said fine levied in any wise entailed to the person or persons so levying the same fine, or to any of the ancestors of the same person or persons." 37. This doctrine, however, only extends to cases where the descent is lineal; for in the case of a collateral descent, a fine levied by a person who was never seised of the estate tail, and on whom it never descended, but who had only a possibility of an estate tail, is no bar to a collateral heir in tail of the person who levied the fine; because, in making |