could not be barred by the fine, but remained still in the wife, by force of the first conveyance. Lord Talbot said, the chief objection was, that the legal estate being in the trustees, the husband and wife had not such an estate in the land whereof a fine could be levied, to bar the wife's right. But as to that, it was very well known that the operation of fines and recoveries was the same upon trusts as upon legal estates: and if so, it must inevitably follow, that an estate for life, limited to the wife, and the remainder limited to her own right heirs, in default of any appointment made by her last will, were both disposed of by the fine; and if no such remainder had been limited by it, as the estate was the wife's own, and moved originally from her, whatever was not conveyed, would have remained in her, and consequently been barred. Decreed the trustees to convey to the mortgagee. 39. Terms for years may be barred by a fine, if Terms for the lessees were, or ever might have been, in pos session. 40. Thus, where a lease for years was made of certain lands, to begin after the determination of a lease then subsisting; the first term expired, the second lessee neglected to enter, and the person in reversion entered, made a feoffment, and levied a fine with proclamations of the land. Five years passed without any claim being made by the second lessee; and the question was, whether he was barred by the fine. Years. Saffyn's Case, 5 Rep: 123. Cro. Ja. 60. It was resolved, that although a lessee for years had not himself such an estate as would enable him ante, c. 5.. to levy a fine, yet it did not therefore follow that his § 22. interest should not be barred by a fine. That a term for years was within the statute 4 Hen. VII., being comprehended under the word interest; and as the Ischam v. object of that act was to prevent strifes and debates, it would not have that effect if its operation did not extend to long terms for years, which were then so common. 41. This principle was carried so far, that where a Cro. Car.109. person, who had a long term for years, assigned it over to a trustee, in trust for himself, then purchased the freehold and inheritance of the lands, and levied a fine, it was resolved that the term was barred, the assignee of it having suffered five years to pass without making any claim. 2 Vent. 329. 1 Vent. 82. Sid. 460. Mr. Justice Ventris has taken notice of this case, and observed that the cognizee of the fine, who was also the purchaser of the freehold, did not know of the term, or that it was held in trust for him; so that if the fine had not barred it, he would have been cheated. But that where a term is assigned in trust for the person who is seised of the inheritance, and who is in possession, a fine levied by him will not destroy the term; because the owner of the inheritance is, in cases of this kind, tenant at will to his trustee. And this doctrine has ever since been ad 1 Lev. 272. hered to; so that it is now a settled principle, that terms for years, which are kept on foot by pur2 Keb. 564. chasers for the purpose of protecting the inheritance, are not barred by fine; otherwise fines would frequently weaken the interest of purchasers, instead of adding to their security. Hanmer v. 42. It is also fully established, that a term of years which is vested in trustees, on any other particular trust, except that of protecting the inheritance, may be barred by a fine and non-claim. 43. Thus, where A. had a term for years vested in him, for securing children's portions; B. being in 33 Comb. 67. possession, levied a fine, and five years passed without 1 Cha. R. 27. any claim being made. It was resolved by the Court of K. B. that, admitting the term was in trust, it was barred by the fine. If a person makes a lease for years, and still continues in possession, he is considered as tenant at will to the lessee for years; and if the lessor, being thus in possession, levies a fine, it will be no bar to the term for years: because the possession of the tenant at will being the possession of the person in remainder, his interest is not divested; and it will be shown c. 13. in a subsequent chapter, that no estate is barred by a fine, unless it be divested out of the real owner. 44. We have seen that a copyholder cannot im- Copyholds. plead, or be impleaded, for his copyhold in the King's courts; and therefore cannot levy a fine of it in the Court of Common Pleas. But, notwithstanding, a copyhold estate is considered as an interest within the statute 4 Hen. VII., and therefore may be barred by a fine, levied by the person who has the freehold of the land. § 55. Case, 45. Thus, Lord Coke says, if a copyholder be dis- Coke, Cop. seised, and the disseisor levies a fine with proclamations, and five years pass without any claim made, this is a bar both to the lord and to the copyholder. 46. It was resolved by the Court of Common Margaret Pleas in 10 Ja. that lands held by copy of court- Podger's roll were within the words and intent of the statute 9 Rep. 104. 4 Hen. VII. For as leases for years were considered within the act, on account of the word interest; and because great mischief, vexation, and trouble would ensue, if leases for years were not within the act; so, greater mischief, vexation, and trouble would ensue, if the act did not extend to customary lands, held by copy; for a great portion of them was granted in fee simple. c. 2. 47. There is a custom in most manors, that copyholds may be entailed; but even if a fine was allowed Vide Tit. 37. to be levied of a copyhold in the court of the manor of which it is held, it will not bar such an entail, because it is not levied pursuant to the statute 4 Hen. VII., unless it is allowed by the custom to have that effect. Estates held Ognel v. Powers ap 48. Estates held by statute merchant, statute staple, and elegit, are comprehended within the statute 4 Hen. VII., and may therefore be barred by a fine and non-claim, provided the lands be extended. 49. Thus, upon a trial at bar, the Court delivered it as law to the jury, that where lands were actually extended, on a writ of elegit, the tenant by elegit might be barred by a fine and non-claim; and that where an inquisition upon an elegit is found, the party has the possession before entry, and may bring an ejectment, or action of trespass. 50. So in the case of Deighton v. Grenville, which will be stated in the next chapter, all the Judges agreed, that, although the cognizees of statutes merchant did not enter, yet that they had possession in law, in consequence of their extents and liberates, which gave them a right of entry; and, therefore, they might be barred by a fine. 51. Powers appendant, or in gross, may be barred pendant and by a fine levied of the lands to which such powers in gross. I Inst. 237 a. relate, by the person to whom the powers are re3 Rep. 83 a. served; because, by the fine, the person acknow ledges all his right and interest in the lands to be vested in another, and therefore it would be repugnant to that acknowledgement that he should ever afterwards claim any power over those lands. Besides, a power appendant, or in gross, being part of the old dominion, is considered as an interest which may be released. Case, 52. C. Digges being seised in fee, covenanted to Digges's stand seised to the use of himself for life, remainder 1 Rep. 173. over; reserving to himself a power of revocation, by deed, indented and enrolled. C. Digges revoked the uses; but before the deed of revocation was enrolled, he levied a fine of the lands. It was resolved, that the fine being levied before the enrolment of the deed of revocation, until which time the revocation was imperfect, had destroyed the power. 53. In the case of Penne v. Peacock, Lord Talbot ante, § 38. said, that the power being coupled with an interest, and annexed to the wife's inheritance, it was de stroyed by the fine: since, that a lease and release, Vide Bullock or any other conveyance, would carry with them all v. Thorne, powers that were joined to the estate. Tit. 32. c. 18. $. 10. 54. A power of revocation may also be destroyed 1 Inst. 237 a. in part, by a fine being levied of part of the land; Touch. 501. and yet the power will continue good as to the residue. 55. Where a person, who has a power appendant or in gross, levies a fine of the lands to which the power relates, and afterwards by deed declares that such fine shall enure as an execution, of his power, the fine and declaration of uses will, in that case, be considered as one assurance, and will not destroy the power. 56. Thus, in the case of Herring v. Brown, it was Tit. 32. c. 16. objected, that Sir J. Williams, by levying the fine, § 36. without any precedent declaration of uses to which it should enure, had destroyed his power of revocation for the deed, being subsequent to the fine, was ineffectual, because there was an intermediate time, |