the ancestor, it continued to run against the heir or devisee. Lord Ch. Justice Mansfield said, the Court was unanimously of opinion that the right of entry was confined to five years after the expiration of the 40 years term. The devise was to Philip Browne for life, with remainder to his executors for a term of 40 years. He died in 1788, and the term which then commenced expired in 1778. When the fine was levied, Robert Browne was seised in fee of the reversion; consequently, if he had lived to 1778, he and his heir would have been bound to claim within five years from 1778, in which year the 40 years expired. If he would have been bound to claim within five years from that time, the question was, whether he could by his will give a right to avoid the fine at a more distant period than the end of the five years. If he might, he could equally limit the estate to 500 or 5,000 men in succession, and their heirs in tail, and so keep the right of entry alive for a century or more. This would be the consequence; and a most extraordinary consequence it would be. Whether it can be so, depends upon the words of the statute of fines, which are," the said proclamations so made, the said fine to be a final end, and conclude as well privies as strangers to the same." Stopping here, the question was, since a man and his heirs is barred, is a man and his devisees barred? or has the statute of wills this effect, that more time is required to bar a right of entry against a devisee than against an heir, or is not the devisee exactly in the same state as the heir? He had never heard it disputed; and if so, he was barred at the end of five years after the 40 years. But it was said there was a saving of future rights, and every person shall have five years from the accruer of such future rights. This depended on the words of the statute-" Saving to all other persons such action, right, title, claim, and interest, in or to the said lands, tenements, or other hereditaments, as first shall grow, remain, or descend, or come to them, after the said fine engrossed, and proclamations made, by force of any gift in tail, or by any other cause or matter had and made before the said fine levied; so that they take their action, or pursue their said right and title according to law, within five years next after such action, right, title, claim, or interest to them accrued, descended, remained, fallen, or come." This was confined to persons whose future right first accrued after the fine, by gift in tail, or other cause or matter had and made before the fine levied. Did the title of the lessor of the plaintiff first accrue to him after the fine, as a distinct original title, by matter before the fine? Certainly not. At the time of the fine, T. Burton was seised in fee in reversion, and made his will after the fine levied, in which he devised the premises to Robert Burton for life, with remainder in tail to the lessor of the plaintiff. His title therefore was a part of the same estate, the same fee, which T. Burton had at the time of the fine levied, and which first accrued before the fine. The plaintiff was driven to contend, that the words, "before the fine levied," mean the same thing as after the fine levied. But the lessor of the plaintiff having this estate tail, in order to bring him within the saving, it was said that the case was the same as if he had had it before the fine levied. But to hold this, would be to prevent the statute entirely; and it would have the monstrous consequence, that though the person seised, at the time of the fine levied, must have entered within five years after the 40 years, he could by his will give his devisee a right of entry for an hundred years. The Court was therefore of opinion that the judgment must be affirmed, because no entry was made within five years after the expiration of the 40 years, which determined in 1778. Women Vide Tit.36. Dyer, 72 b. 23. In consequence of the statute 32 Hen. VIII. Married c. 28. which will be stated hereafter, a fine levied by within this a husband alone, of any lands which are the free- Saving. hold and inheritance of the wife, shall not be prejudicial to the wife or her heirs; but she or they may enter on the lands and defeat such fine. Although the words of this act are very general; yet if the husband levies a fine with proclamations, the wife is bound to enter within five years after the death of her husband; and if she does not, she will not only be barred of her entry, but also of her right; for the object of the statute was only to provide against the discontinuance, which was a grievance peculiar infra, c. 12. to married women, but not to invalidate fines duly levied, as to married women; they having a remedy in common with others, by entry or claim, to avoid the fine. Besides, though the words of the statute are general-"That such a fine shall not be prejudicial to the wife or her heirs ;" yet the following words, "But that she may lawfully enter, according to her right and title therein" are explanatory, and allow her an entry only in those cases where she had a right before the statute. 24. If a married man levies a fine of his own estate, and five years pass, his wife is not thereby barred of her dower, but is within the second saving of the statute, and will be allowed five years from the death of her husband to make her claim; because her title to dower did not accrue till that period. 373 n. Damport v. Gouldsb. Menvill's c. 49. 44. Plowden was of opinion, that in a case of this kind the wife was not bound to make her claim within five years after the death of her husband, but might claim her dower 'at any indefinite period of time. The contrary, however, was expressly determined in 4 Hen. VIII.; and that determination has ever since been held to be good law. 25. If the wife's title to dower does not accrue at the death of her husband, but commences at a subsequent period, she will be allowed five years from the time when it accrued. 26. A married man levied a fine with proclamations, and was afterwards indicted and outlawed for high treason. Some years after his death, his heirs reversed the outlawry by writ of error, and then the wife claimed her dower. It was resolved, that although more than five years had elapsed since the death of the husband, yet the fine was no bar to her; because, as long as the attainder for treason stood in force, she could not claim her Tit. 6. c. 5. dower; but as soon as the outlawry was reversed, a § 2. And Bishops, title to dower first accrued to her, and therefore she was within the second saving, and had five years from the reversal of the outlawry to pursue her right. 27. Although the statute 4 Hen. VII. does not extend to the possessions of the church, yet in case Tit. 31. c.2. a bishop, dean, vicar, prebendary, or other ecclesias§ 50. tical person neglects to make his claim within five years after a fine is levied, of an estate to which he is entitled in right of his bishoprick, &c. he will be barred during his life; but his successors are within the second saving, and will be allowed five years to avoid the fine, from the time of their becoming entitled to the lands. 28. In the same manner all persons having offices And Persons having for life, to which lands and tenements are annexed, Offices. must make their claim within five years after a fine Plowd. 538. has been levied of such lands and tenements; otherwife they will be barred during their lives. each successive officer is within the second saving, and will be allowed five years to avoid the fine, from the time when he becomes entitled to the lands. But 29. Strangers to fines having several different and And Strangers distinct rights, by several titles, accruing at different having differtimes, shall have several periods of five years allowed ent Rights. them to avoid a fine; that is, five years after the accruing of each title: so that if a right accrues to a stranger, when a fine is levied, which he neglects to pursue within the limited time, and another right accrues to the same stranger, at any time after; he is then comprehended within the second saving of the statute, as to the new right, upon the principle, that, quando duo jura in una persona concurrunt, æquum est ac si essent in diversis. This construction is certainly not consistent with 9 Rep. 105 b. the letter of the statute; for in consequence of the words, other persons, it appears clearly to have been the intention of the legislature, that no person who was comprehended in the first saving, should take advantage of the second saving; and Lord Ch. J. Plowd. 372. Dyer, in the case of Stowell v. Zouch, contended that this was the true construction of the statute; but, however, the law has always been held to be otherwise. Cro. Eliz. 220. Tucker, 30. Tenant for life levied a fine to a stranger; the Laund v. person in reversion neglected to enter within five Cro. Eliz. years after the fine was levied; afterwards the tenant for life died: 254. 3 Rep. 78 b. |