his title to the estate tail, he need not convey himself through him, so that he is not a privy to him. The hus The 31. S. C. of Godfrey v. Wade. 38. A husband made a feoffment to the use of Macwilliam's Case, himself and his wife, and the heirs male of their two Hob. 332. bodies; remainder to the heirs male of the body of W. Jones, the husband, remainder to the heirs of their two by the name bodies, remainder in fee to the husband. band and wife had issue, a son and a daughter. husband died: the son made a lease, to commence after the death of his mother; then levied a fine with proclamations, to the use of himself in fee, and died without issue, in the lifetime of his mother. The question was, whether this lease was good against the daughter. It should be observed, that the estate tail limited to the husband and wife, and the heirs male of their bodies, vested wholly in the wife, after the death of her husband, though she was within the statute 11 Hen. VII. c. 20.; and the remainder to the heirs infra, male of the body of the father was in the son at the time when he levied the fine. But these estates became extinct when the mother and son died, so that the lease in question could only be derived out of the remainder to the heirs of the bodies of the husband and wife, to which both the son and the daughter were inheritable. It was determined by Lord Ch. J. Hobart, Hutton, and Jones, against the opinion of Winch, that although, in a lineal descent, the issue in tail were barred by the fine of their ancestor, notwithstanding such ancestor had but a possibility of an estate tail when he levied the fine, yet, in a collateral descent, the case was very different, as it was not necessary that the issue in tail should make mention of every collateral issue inheritable before him, as in a lineal Bradstock v. Scovel, one; and that in the present case, as the estate tail never descended on the son, his fine could be no bar to his sister, who was not privy to him, because she could make her title to the estate tail without conveying her descent through him, or even mentioning him in her pedigree. Judgment was given that the lease was void as to the sister. But it was observed, that if the estate tail had descended on the son, his fine would then have barred his sister; because, in that case, she must have conveyed her descent through him, in order to make out her title to the estate tail, by which means she would have been privy to him. 39. So where an eldest son levied a fine of an Cro.Car. 434. estate tail, which was then vested in his mother, and died in her lifetime, so that the estate tail never descended on him, AnEstate Tail in a Rentcharge is barrable. Heliot v. Cro. Ja. 700. It was adjudged in the Court of Common Pleas, by three Judges against one, that this fine did not bar the second brother; and upon a writ of error, all the Judges of the King's Bench were of the same opinion because, as the estate tail never vested in the elder brother, the younger brother was not privy to him. 40. It has been stated, that a fine may be levied of a rent-charge; consequently, an estate tail in a rent-charge may be barred by a fine levied of it; and a tenant in tail of a rent-charge may also bar it by levying a fine of the lands out of which the rent issues. 41. Upon demurrer, the case was thus:-A person who was tenant in tail of a rent-charge, issuing out of the manor of Kingsbury, granted by Sir Ambrose Cave, levied a fine of the manor to Sir A. Cave and his heirs; and the fine was pleaded in bar of an avowry for this rent, by the heir in tail. The fine was levied of the rent, per nomen manerii; and an averment was made, that the fine was levied by agreement of the parties, with an intent to bar the rent. The defendant pleaded non-comprised, which being demurred to, and argued several times, it was held by Lord Ch. J. Hobart and Harvey, that the rent was barred by the fine, because, being levied of the land, it passed the rent inclusively, being directed by the agreement of the parties. Advowson. 42. As a fine may be levied of an advowson in And in an gross, so a tenant in tail of an advowson in gross plowd. 435. may bar his issue by a fine levied according to the 4 statute 4 Hen. VII. It is, however, said in Plowden, that if a tenant in tail of an advowson grants and renders to another, by fine, the nomination of a clerk ante, § 20. to the advowson, this will not bind the issue, upon a principle already stated: for that the right of nomination is a thing distinct from the advowson, and not entailed. Modern writers have, however, thought Watson, 84. differently on this subject, on the principle, that the Dodd. 63. presentation and nomination are, in effect, the same thing, being the fruit and full profit of the patronage. But if a tenant in tail of an advowson grants by fine the nomination of a clerk to one and his heirs, so that when the church becomes void, the grantee and his heirs may nominate a clerk to the tenant in tail and his heirs, and that he or they shall present the clerk so nominated to the ordinary; such a fine will not bind the issue in tail, because there the nomination and presentment are distinguished, so that the fine is not levied of the thing entailed. 43. Where a person is tenant in tail of an equitable And in aTrust or trust estate, and levies a fine of it, such fine will Estate. c. 10. A Fine bars the Issue in Tail before Proclama tions. Plowd. 434. Ab. tit. Fine, pl. 109. Parslow's Case, cited 3 Rep. 90. have as extensive an operation in barring his issue, as if he had been seised of the legal estate. This doctrine will be fully stated in a subsequent chapter. 44. Although no fine is a bar to an estate tail but a fine with proclamations, levied pursuant to the statute 4 Hen. VII.; yet as soon as a fine is levied, and before all the proclamations are past, it is a good bar to an estate tail, provided the proclamations are afterwards duly made; and the issue in tail cannot save his right by entering before all the proclamations are made. 45. This point was formerly much doubted; and in the case of Smith v. Stapleton, 15 Eliz. it was contended by the counsel, that in consequence of the words in the statute 4 Hen. VII. "and the said proclamations so had and made, the said fine to be a final end, and conclude as well privies as strangers, &c." and also the words in the statute 32 Hen. VIII. "after the same fine levied, engrossed, and procla mations made, &c.," a fine was no bar to the issue in tail, if the ancestor died before all the proclamations were made; and Brook appears to have been of that opinion. The contrary, however, was determined in the following case. 46. Sir G. Blount being tenant in tail of several manors, and having issue a daughter, levied a fine, and soon afterwards died. The daughter immediately brought a formedon for the recovery of the estate tail; pending which all the proclamations were made. It was unanimously determined, that the daughter was barred by this fine, though her ancestor had died, and she had commenced her action, before all the proclamations were made. Lord Coke has made four observations on this case. First That though after a fine is levied, a right of an estate tail descends to the issue, yet as soon as the proclamations are made, the right, which thus descended, is barred by the fine. Second-Though a formedon be brought and pursued, yet if the proclamations are all afterwards duly made, the fine will then be a good bar. Third-When tenant in tail levies a fine, and dies before all the proclamations are made, the issue in tail is not within any of the savings of the statute 4 Hen. VII.; for if he were, then the bringing his infra, e. 11. formedon, before all the proclamations were made, would avoid the fine. Fourth-That the proclamations serve no other purpose but that of distinguishing a fine levied pursuant to the statute 4 Henry VII. from a fine at common law. 47. So where a tenant in tail levied a fine, and Case of Fines. died before all the proclamations were made, leaving 3 Rep. 84. a son beyond sea, who did not return till after all the proclamations were made, and then claimed the land. It was resolved by all the Judges, that although a right of entail descended to the son, on the death of his father, in consequence of his dying before all the proclamations were made, yet when all the proclamations passed, the right which descended to him was for ever barred, and the issue could not have saved it by any claim. not bar Re 48. Before we quit this subject it may be proper to A Fine does observe that the operation of a fine is merely to bar mainders. an estate tail, but not the remainders or reversion expectant on it; for a fine levied by a tenant in tail only transfers to the cognizee a base fee, that is, an estate to him and his heirs, as long as the tenant in |