the rent of 1007.; which lease, by mesne assignments, became vested in the defendant Board. Lord Bolingbroke, by a bond dated 24th July 1770, with warrant of attorney to confess judgment, in consideration of 3,000l. became bound to the lessee of the plaintiff in the penal sum of 6,000l., conditioned for the payment to her of an annuity of 500l. during his own life; and by indenture of the same date, Lord Bolingbroke, in consideration of the said 3,000l. and as a farther security for the annuity, demised the premises in question to the lessor of the plaintiff for ninety-nine years, if he should so long live, at a pepper-corn rent, with a proviso, that the lessor of the plaintiff should the next day re-demise the premises to Lord Bolingbroke for ninety-eight years and eleven months, if he should so long live, at the rent of 500l., which was accordingly done. Lord Bolingbroke, by lease and release dated the 9th and 10th March 1773, conveyed the premises, for a fair and valuable consideration, to the defendant Jones in fee, who had no notice of the annuity granted to the lessor of the plaintiff. Jones being in possession, levied a fine of the premises, with proclamations, in Trinity term. 1775, to the use of himself in fee. The annuity was in arrear from the 24th January 1774, and the ejectment was brought in Hilary term 1782.

Lord Mansfield. We have looked into all the cases, and have no doubt. It appears that the lessor of the plaintiff, and the defendant Jones, are both innocent: Jones is a purchaser for a valuable consideration, without any notice of the lessor of the plaintiff's title; the lessor of the plaintiff is not alleged at any time to have known of the conveyance to Jones; and there was no circumstance of notoriety attending the transfer to give her such notice; for the visible possession continued the

same after the sale as before it; the lease to William Stevens subsisting, and the payment of rent to Jones, instead of Lord Bolingbroke, carried with it no notoriety in the country. At the time of the conveyance there was no arrear of interest due to Mrs. Hare, and therefore she had no right to come upon the land in any shape. If she was guilty of laches afterwards, there could be no mala fides in it with respect to Jones, as he is under no disadvantage from it: so that it is a question of mere law between two innocent parties, whether the right and interest of the lessor of the plaintiff is barred by the fine and non-claim. This depends on one clear proposition, which is a general rule of law founded in good sense; and although it be difficult to find a rule without an exception, yet I know of none to this proposition. It is laid down in 9 Co. Rep. 106 a. "Resolved per totam curiam, that no fine nor warranty shall bar any estate in possession, reversion, or remainder, which is not divested and put to a right." This general rule is illustrated and applied to several cases throughout the books; and hence it follows, that no collateral interest can be barred by a fine; as a rent-charge, a right of common, &c. and the authority cited from Carter, 24, that a rent-charge may be barred by a fine, is totally mistaken; for, in looking into it, it appears to be thus: the owner of a rent-charge levied a fine of the land; the question was, whether the rent-charge passed by the fine; and a distinction was taken between a fine operating as a grant or as a bar. Here the fine operated as a grant, and not as a bar; the rule is universal, that a rent-charge in a third person is not barred by a fine and non-claim. Hence the parties to a fine, or one of them, must be in of a seisin or possession adverse to that interest which is to be barred; for, if

it be consistent with it, the fine does not divest it,
and therefore is no .bar. Now, at the time of the
conveyance to Jones in 1773, Lord Bolingbroke had
no adverse possession: he had paid all arrears; and
as the lessor of the plaintiff had no right to come on
the land but for arrears, she had then no title in her.
At the time when the fine was levied, there was an
arrear of a year and a half due; but the lessor of
the plaintiff was not bound to resort to the lands
for her remedy, she had other securities; besides,
she could not enter on the lands, the lessee for years
being in possession; all she could do was by notice
to the tenant under the statute 4 & 5 Ann. c. 16.
which makes attornment unnecessary,
distrain or bring an action for the rent.
shape it is most clear, that the lessor of the plaintiff's
interest was not divested or turned to a right; and
therefore that it remained after the fine just as it did
before. Judgment was given for the lessor of the
plaintiff.

either to

In every

Jointures.

24. Where women having an estate in dower, or Estates in a jointure, discontinue or alien them, such discon- Dower and tinuances or alienations are declared to be void, by the statute 11 Hen. VII. c. 20.: and by the statute 32 Hen. VIII. c. 36. § 2. it is declared, that no fine levied by a woman of any such estate as is mentioned in the statute 11 Hen. VII. shall be of any effect.

Jure Uxoris.

25. By the statute 32 Hen. VIII. c. 28. § 6. it is Estates held declared, that no fine levied by a husband of any lands, whereof he is seised in right of his wife, shall be prejudicial or hurtful to the wife or her heirs.

The cases which have arisen on these statutes will c. 10.1 be stated in Title Recovery.

Estates Tail

of the Gift of the Crown

c. 10.

26. It has been stated in chapter ix. that estates tail, of the gift of the Crown, may be barred by the for Services. stat. 4 Hen. VII., though excepted out of the stat. 32 Hen. VIII. But by a subsequent statute, a distinction is made between estates tail of the gift of the Crown generally, and estates tail granted by the Crown as a reward for services; and these last are protected from the operation of the stat. 4 Hen. VII., as well as from that of the stat. 32 Hen. VIII., of which an account will be given in Title Recovery. 27. When fines became common assurances of 1 Inst. 3726. lands, the Judges would no more allow a fine to divest the interest of the King, than any other con. veyance, but preserved the King's remainder or reversion, though they allowed the fine to bar the person levying it, and his issue; so that where a fine is levied of an estate tail, whereof the remainder or reversion is in the King, it creates a base fee, determinable on failure of heirs of the body of the tenant in tail.

Reversions in

the Crown.

Mulgrave v.
Mounson,
2 Freem. 17.

Springing

and shifting

Uses.

28. It was held by Lord Nottingham, assisted by Lord C. J. North and J. Jones, that where there is tenant in tail of the gift of the King, with a remainder in the Crown, such tenant is not restrained by the stat. 34 Hen. VIII., but might levy a fine to the Crown which would bar his issue; for it appeared by the preamble of the statute, that it was made to prevent the alienation by tenant in tail, that the memory of the King's bounty might be preserved; and where the estate comes wholly back to the King, there it is in the King's power to preserve the memory of his bounty, either by giving it back to the same party, or what other way he pleaseth.

29. A springing or shifting use cannot be defeated or destroyed by a fine levied of the estate out of which such springing or shifting use is to arise.

30. Thus in the case of Lloyd v. Carew, which

§ 31.

has been stated in a former title, it appeared that Tit. 16. c. 5. Richard Carew and Penelope his wife, in order to extinguish and destroy all such right as the heirs of Penelope might have under the proviso, and for settling the same on R. Carew and his heirs, levied a fine of all the estate, and declared the uses thereof to R. Carew for life, remainder to Penelope for life, remainder to R. Carew in fee. R. Carew died without issue, upon which the heirs of Mary claimed the estate under the proviso, and filed their bill in Chancery, to compel the trustees to convey the estate to them, on payment of the 4,000l.

The bill was dismissed; but upon an appeal to the House of Lords, the decree of dismission was reversed, it being alleged that the fine could not bar the benefit of this proviso, because the same never was nor could be in Penelope, who levied the fine.

Tit. 26. c. 2.

&c.

31. A dignity or title of honour cannot be barred Dignities. or surrendered by fine, as has been already shown. § 25. 32. There are several cases in which a court of Mortgages, equity will not allow a fine to have any effect on estates in mortgage and trust estates, of which an account will be given in the next chapter.