the defendants, the devisees, should not set up the term of five hundred years; and in case the will of Sir John Thornycroft the son should be produced in evidence, the defendants should likewise produce aț the trial the deed of 1745; and that all further directions should be reserved till after the trial was had. The only circumstances in the present case which differed from the above, and which were the grounds of dismissing the bill, were, that in Hilary term 1773 (the next after the death of Elizabeth Handasyde), the devisee levied a fine of all the devised estates, and also of the descended estates (having entered upon both immediately after her death). The ori ginal bill was filed in 1776. The five years nonclaim ran from Michaelmas 1778. In October 1781, the answer came in which discovered the deed of 1745, and admitted it to have been in the hands of the devisee from the time of the death of Elizabeth Handasyde; and the answer also stated and insisted upon the fine and non-claim. The cause was heard the first of July 1783, at which time the Court should have added to the directions above mentioned, that the fine and non-claim should not be insisted upon at law, instead of dismissing the bill upon the ground of such fine and non-claim only, as the non-claim had elapsed pending the suit in Chancery; and therefore the Court ought not to have permitted the defendant to take advantage of it at law. For & court of equity will not suffer the rights of the parties to be changed, pending the suit, in a case within the jurisdiction of the Court, and where the Court can relieve; therefore, if a trust estate is before the Court in a lis pendens, and a sale be made of the trust estate, without actual notice of the cause to the purchaser, the Court, at the hearing, will de

cree the relief against the purchaser which the plaintiff in the cause was entitled to. But it is otherwise after the cause is at an end, for then the party must have express notice of a decree, as he must of a judgment at law, to affect him with equity. So, in the case of a fine, equity will not suffer a non-claim completed, pending the cause, to prevent the Court from doing equity; otherwise (as Lord Hardwicke expressed it in 2 Atk. 390.) it would trip up the ju risdiction of this Court, if you will not allow, where it is a proper matter of equity, a bill to prevent the running of a fine. So where a court of equity has directed an action, the defendant has been restrained from setting up the statute of limitations, which has run pending the suit in equity.

On the other side, it was contended, that the title of the appellants, if they ever had any, was a clear title at law; it needed no assistance of a court of equity to bring it to a fair discussion: and, accordingly, the mother of the appellant Pincke and the appellant Thornycroft brought an ejectment, which might have been fairly tried without any such assistance; and there was now no obstacle to a legal determination of the rights of the appellants, except the fine. That there was no ground for a court of equity to interpose, to remove the legal bar created by the fine. It was apprehended the farm at Newington was devised by the will; but, supposing the contrary, there was not in the case any circumstance which could give a court of equity a control over the legal title of the respondents, nothing which could form a legal obligation upon their conscience, not to set up the fine. The appellants attempted to impute fraud to the respondents or their solicitor; but the bill did not state such a case as warranted

the imputation, much less was it made out in proof. A fine was a matter of record open to the inspection of every one; the Legislature had given it an operation to bar all claims not asserted in due time; and it was therefore the duty of every person having a claim, to inform himself whether there might be such an impediment to the assertion of it. Not disclosing to an adversary that a fine had been levied, which might in time be a bar to his claim, could not be deemed a fraud. It was endeavoured, therefore, to give to the conversation of the solicitor for the defendant and the solicitor for the plaintiff in the ejectment (of which there was no evidence but the answers), such a turn as might make it appear something like fraud. But the solicitor for the defendant merely mentioned a claim made by persons to whose apparent title he was then unable to give any answer, and which had therefore excited in his mind much apprehension for his client's title; and what he communicated was not only true, but (according to the information he then had) was the whole truth, though a subsequent accidental discovery put an end to this alarming claim, which, if it had prevailed, was superior to the title of the heirs, as well as of the devisee of Mrs. Handasyde. It was true, the heirs countermanded their notice of trial of the ejectment; but their own judg ment decided their conduct. It was asserted by the appellants, that if the ejectment had proceeded to trial, the fine must have been discovered, and, five years not having then elapsed from the last procla mation, the heirs might have entered to avoid the fine. But this assertion was not founded in truth; the will of Sir John Thornycroft would have been a sufficient defence, and there would have been no necessity for setting up the fine.

It was ordered and adjudged, "That the said decree or order of dismission complained of in the said appeal should be reversed. And it was further ordered and adjudged, that the bill should be retained for twelve months, and that the plaintiffs should be at liberty, in the meantime, to bring such action or actions at law as they should be advised, &c. And it was further ordered and adjudged, that the said defendant Edward Thornycroft should not insist, in such action or actions, or on any trial to be had thereon, on the fine mentioned in the pleadings, or on any non-claim which had ensued thereon, or any other fine or non-claim which might have incurred since filing the original bill."

TITLE XXXVÍ.

COMMON RECOVERY.

CHAP. I.

Of the Origin and Nature of a Recovery.

CHAP. II.

Of the Writ of Entry and the Tenant to the Præcipe.

CHAP. III.

Of Voucher, Judgment, and Execution.

CHAP. IV.

In what Courts and of what Things a Recovery may be suffered.

CHAP. V.

Of the Parties to a Recovery.

CHAP. VI.

Of the Amendment of Recoveries.

CHAP. VII.

Effect of a Recovery in barring Estates Tail, Remainders, and Reversions.

CHAP. VIII.

Effect of a Recovery in barring particular Persons, Estates, and Interests.