Carth. 22. between the leying of the fine and the execution of the deed, in which the forfeiture attached, and the power was destroyed; so that no subsequent act could purge the forfeiture which once attached, nor revive the power which was destroyed. For these reasons, and upon the authority of Digges's case, it adjudged by the Court of K. B. that Sir J. Williams had, by levying the fine, destroyed his power of revocation; and therefore that the subsequent declaration of uses was void. was On a writ of error, in the Exchequer Chamber, 1 Freem.486. this judgment was reversed, by the opinion of six judges against two: it being determined that the fine and declaration of uses were to be considered as one and the same conveyance, and operated as an execution, and not as an extinguishment of the power. It was agreed, that a fine alone, without a deed to declare the uses of it, would have extinguished the power; but that it was otherwise where there was a deed declaring what the intention of the parties was when the fine was levied; and although the date of the deed was subsequent to that of the fine, for no other reason, perhaps, but because the fine was levied in the vacation, and was dated as of the preceding term, still it was possible that the deed was executed at the time the fine was acknowledged so that it would be unreasonable to make a forfeiture or extinguishment of a right merely by relation, which was but a fiction of law. Doug, 45. S. P. 57. This doctrine has been confirmed by the Court of K. B. in the case of Doe v. Whitehead, which will be stated in a subsequent chapter. So that now, whenever a fine is levied, and a declaration of the uses of it is afterwards executed, the fine and de claration of uses will be considered as one assurance. Powers col Tit. 32. c. 18. 58. A power collateral to the land, which is not But not joined with an interest, cannot be barred or destroyed lateral. by a fine levied by the person to whom such a power 1 Inst. 237 d. is reserved because it is considered as a bare and naked authority, which cannot be released or divested. 59. Thus it is said by Lord Ch. J. Popham in 1 Rep. 1744. Digges's case, that if a feoffment was made to A. in fee, to divers uses, with a proviso that it should be lawful for B. to revoke those uses; B. could not in that case release his power; and a fine levied by him would not extinguish it; for it was merely collateral, and the land did not move from him, nor should the party be in by him, nor under him. 60. It follows from the same principle, that a power, collateral to the land, cannot be barred by the fine of a stranger. Shorrall, 61. Thus, where a person, by a proviso in his Willis v. marriage settlement, gave his intended wife a power 1 Atk. 474. to dispose of 100l. to such persons as she should appoint, to be paid within one year after his decease; and, in default of payment, one John Moreton was empowered to make a lease of certain lands, to raise that sum. The wife, in a year after the death of her husband, made an appointment of the 100%., but it was not paid. The heir of the husband levied a fine of the land, and five years passed; afterwards, the appointees of the 100%. brought their bill to be paid that sum. Lord Hardwicke observed, that though, by the several statutes relating to fines, all right, claim, and interest which strangers had, were barred by a fine; yet that such a stranger as John Moreton, who had no interest, but only a bare naked power, and who could not have made an entry, was not affected by it. A Right of Mayor of W. Jones, 62. A right or title of entry for a condition broken, may be barred by a fine levied by the grantee or devisee of the conditional estate. 63. Thus, where lands were devised to trustees and their heirs, upon condition that they should pay Cro.Car.575. a certain sum of money every year, for the support of a schoolmaster, &c.; and on non-performance of the trusts, the lands were devised over to other perThe trustees neglected to perform the trusts, 452. Touch. 154. Cromwell's sons. and levied a fine of the lands. It was determined that the fine was a good bar to persons who had a title to enter on breach of the condition. the 64. A title of entry for a condition broken may also be barred by a fine levied by the grantor of the conditional estate; as if a person makes a feoffment upon condition, and before the condition is broken, the feoffor levies a fine of the same lands, either to the feoffee, or to any other person; the condition will be thereby discharged for ever. 65. But if the fine had been levied for the purpose of corroborating the conveyance by which the condition was created, it would not have destroyed the condition; for in that case the fine and conveyance would be construed together, and would operate as one assurance. 66. It seems that a right or title of entry on any other account may also be barred by a fine. Thomasin v. 67. H. Mackworth, upon his marriage, made a Mackworth, feoffment to trustees and their heirs, to the use of himself for life, remainder to his eldest son in tail, Carter, 75. reversion to himself in fee; and covenanted to pay 2001. to the trustees within three months after the birth of each child; with a declaration, that if such payment was not made, then the feoffees and their heirs should stand seised of the premises until they had levied the said sums. The money was not paid; so that the estate of H. Mackworth, being with a quousque, ceased; but the trustees did not enter. H. Mackworth, on the marriage of his son, conveyed the lands by lease and release to uses, and levied a fine to those uses; after which, five years passed without any entry or claim. Lord Ch. J. Bridgeman delivered the opinion of the Court, that the entry of the trustees was barred by the fine. Error. 68. A fine and non-claim is a good bar to a writ Writs of of error, in consequence of the word actions in the Bartholosecond saving of the statute 4 Hen. VII. And a fine is also a good bar to a writ of error to reverse a Cro. Ja, 332, common recovery. mew v. Belfield, TITLE XXXV. FINE. CHAP. XI. Of the different Savings in the Statute 4 Hen. VII. and the Exceptions in favour of Infants, Femes Covert, &c. 1. Of the First Saving. 6. Of the Second Saving. 23. Married Women within this Saving. 27. And Bishops, Deans, &c. 28. And Persons having Of- 29. And Strangers having dif 37. Of the Third Saving. 52. Case of Persons dying under Of the First 4 Hen. VII. c. 24. § 3. T SECTION 1. HE great inconveniences which arose from the statute of non-claim, were removed by the statute 4 Hen. VII.; and a proper medium was established, between the unbounded latitude given by the former of those statutes, and the rigour of the common law; for the doctrine of non-claim was restored, but the time allowed for making a claim was extended from one to five years. 2. The words of this clause, which is called the first saving, are," Saving to every person and persons, and to their heirs, other than the parties to the said fine, such right, title, claim, and interest, as they have to or in the said lands, tenements, or hereditaments, at the time of such fine engrossed; so that |