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Case of Persons

is levied; whereas no new right accrued to Thomas Stowell after the fine was levied, his only title being as heir to his grandfather, in whom the right attached when the fine was levied.

52. Where a person to whom a right accrued to dying under lands, of which a fine had been levied, laboured their Disabi- under any of the disabilities specified and excepted

lities.

2 Inst. 519. Cro. Eliz. 219.

in the statute 4 Hen. VII. and died before his disabilities were removed; it was formerly a doubtful point whether the heir of such a person was obliged to make his claim within five years after the death of his ancestor, or was allowed an indefinite period of time for that pupose.

53. This doubt arose from a difference of opinion between Lord Coke and Anderson. Lord Coke, in

1 Leon. 211. his report of the case of Sunie v. Howes, states,

Sav. 128.

that Thomas Cotton being tenant in tail of a moiety of certain lands, and tenant for life of the other moiety, with remainder to William Cotton his eldest son in tail, William Cotton went to Antwerp, Thomas Cotton levied a fine with proclamations of all the lands, and William Cotton died soon after at Antwerp, without having ever returned to England, leaving a son named William under age, who entered on the lands.

It was adjudged, that as to the moiety whereof Thomas Cotton was tenant in tail, William the son of William was barred by the statute 4 Hen. VII.; but as to the other moiety, whereof Thomas Cotton was only tenant for life, the entry of William the grandson was lawful, and avoided the fine; for though William the son could not take advantage of the clause which saves the right of those who are beyond sea, provided they made their claim within five years after their return, because William the father never

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did return; yet as persons who are out of the realm at the time when a fine is levied, having a present right, are excepted out of the body of the act, which makes the bar; therefore, where a person was beyond sea at the time when a fine was levied, and never returned, he was within the exception made in the body of the act, and his heirs might make their claim at any distance of time.

That it was the same where an infant, not being a party to a fine, and having a present right, died during his infancy, his heirs might make their claim at any distance of time. That the same doctrine took place with respect to a man non compos, who died in that situation; or a man in prison, who died before he had recovered his liberty; or a marrîed woman, who died in the lifetime of her husband for all these were within the reason adjudged, of a person who was out of the realm and never re turned.

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The same doctrine appears to have been laid down 4 Rep. 125 b. by Lord Coke, in his report of Beverley's case.

54. In Leonard's report of Cotton's case it is said, 1 Leon. 211. the Court held, that as to the moiety whereof Thomas Cotton was tenant for life, the fine was no bar, but that William the grandson might enter at any time within five years after he attained his full age; for William his father was not bound by the statute 4 Hen. VII., because he was beyond sea at the time when the fine was levied, and never returned; but that by the equity of the statute, his issue should be allowed five years to make his claim, from the time he attained his full age. And Anderson, Ch. Just. is reported to have said, that although William the father died beyond sea, yet if his son did not make his claim within five years after the death of his

Dillon v. Leman,

2 H. Black. Rep. 584.

father, being of full age, and without impediment, he should be for ever barred.

55. The doctrine here laid down by Lord Anderson has been confirmed by the following determination.

56. William Nanton died seised in fee simple of the lands in question, in 1758, leaving Mary Dillon, mother of the plaintiff, his heir at law; upon the death of William Nanton, one Leman entered into the said lands, and became tortiously seised thereof, and being so seised, in Hilary term, 1765, levied a fine sur cognizance de droit come ceo, &c. of the said lands, whereupon proclamations were duly had; the said Mary Dillon being under coverture at the time of levying such fine. On the 20th February 1765, the said Mary Dillon died under coverture, leaving the plaintiff, then of the age of 21 years, of sound mind, out of prison, and within this realm, her son and heir. No entry or claim was made on or to the said lands by or on behalf of the said Mary Dillon in her lifetime, nor at any time after, by her husband, nor by the plaintiff, until the year 1787, when the plaintiff made an entry to avoid the said fine: and the question was, whether, on the above case, the plaintiff was barred by the said fine from recovering the said lands.

This case having been sent by the Court of Chancery to the Court of Common Pleas, for the opinion of that Court, and having been twice argued there, Lord Ch. Justice Eyre declared shortly the opinion of the Court," that the exception in the first branch of the statute 4 Hen. VII., and the proviso at the end of it, were to be taken together; that being so taken, they did not amount so much to an exception as a saving, the true meaning of which was, that the

rights of those persons who were under disabilities, and of their heirs, were saved as long as the disabilities continued, and five years after, but no longer; therefore, that the heir, not being himself disabled, was barred, unless he pursued his right within the five years after it accrued by the death of his ancestor, dying under a disability; and consequently that the plaintiff, in this case, was prevented by the fine from recovering the lands in question." And to this effect was the certificate sent to the Court of Chancery.

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Sometimes
operates as a
Release or
Grant.

Tit. 18.c. 2. § 28.

1 Inst. 200 b. n. 1.

T

SECTION 1.

HE effect and operation of a fine frequently depends on the particular situation of the cognizor or cognizee, respecting the property of which it is levied. Thus if one joint tenant levies a fine to his companion, it will operate by way of release.

2. In the case of Eustace v. Scawen, which has been already stated, the Court held that the fine should enure by way of release.

3. But if one coparcener in tail levies a fine to another, sur cognizance de droit, &c. it does not enure by way of release, but by way of grant; and it will be a discontinuance and alteration of the estate, without execution; because one coparcener may enfeoff another, and a fine has the same effect, in this case, as a feoffment.

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