on this fine never could bar the owners of the re-
mainder or reversion in fee; for they claim in privity
of that base fee, and may take advantage of the fine
as a confirmation of their title. Had the estate tail
been discontinued, or a fine been levied after the base
fee was determined and a new seisin acquired by
adverse title, then only would the fine have run
against the owners of the reversion or remainder.]
9 But if tenant in tail discontinue, rendering rent, a 30 El.
and die, and the issue accept the rent (which doth
bar him for his time, [viz. after acceptance of the
rent, to avoid the alienation, and thus gives a
title against him for his time,)) and then the dis-
continuee levieth a fine and dieth, in this case the
issue of the issue [who thus accepts rent] shall
not be barred by the five years after the fine, but
shall have five years after the death of the issue
[who accepted the rent, since the right of avoiding
the fine first accrued to the issue in the second
degree.] And if one de non sanæ memoriæ make a
feoffment, [being, according to the old authorities, a
good alienation as against himself, on the ground
that he cannot stultify himself,] and the feoffee
levy a fine [with proclamations,] and then the
feoffor die, in this case the heir, [as the first person
to whom the right of avoiding the fine accrues,]
shall have five years after the death of his ancestor,
and not be bound by the five years next after the
fine levied; [read the last proclamation had; be-
cause the feoffee has the right of holding under the
feoffment, so that the right of entering or making
claim to avoid the fine, first accrues to the issue.]

Plow. 374.

Estrangers to fines, that have future right upon See the Statutes any cause precedent, being affected with such im- Plow. 366. 367pediments when the right first accrueth, shall have Plow. 358. five years after the impediment removed to make their claim, &c. And therefore infants that are born or in their mother's womb when such right doth happen to them, women covert, madmen, lunatics, prisoners, [persons] beyond the seas, shall have this time. As if a man have issue a son and a daughter, and the son doth purchase lands and die, and the daughter entereth as his heir, and is disseised by A. who levieth a fine, and five years pass without claim, and ten years after the father hath another son who is heir to his [the father's] brother; he shall have in this case a new full five

Puw. in Stowell's case. [373] (4)

years after he come to his full age, for he is the
first unto whom the right descended after the pro-
clamations; [since by his birth the event has
proved that the daughter was not the heir. The
like conclusion is law if an uncle to the infant son
had been the mesne heir; and thus a sister or an
uncle, barred as the mesne heir, may, as it is ap-
prehended, have a new title through the nearer
heir, if born, and he should die within five years.
The maxim is, Cum duo jura in unam personam
concurrunt æquum est ac si essent in diversis.] But
if a stranger to a fine, to whom a remainder or
other title first accrueth after the fine, do not pur-
sue his right within five years [after the right to
the possession arises,] hereby he and his issue are
barred for ever. And in like manner if the first
issue in tail, to whom the title of the tail first ac-
crueth, neglect to make his claim, &c. within the
first five years after his title accrued, hereby he is
bound for ever, and the whole estate tail also;
[viz. all the heirs under the intail, and those claim-
ing in succession from them; and there shall not,
as has sometimes been supposed, be a distinct title
in each successive heir in tail, as if he had a dis-
tinct estate.] And if one abate after the death of
a tenant in fee-simple, [thus gaining a fee-simple
by this species of disseisin, and make a feoffment
upon condition, and the feoffee levy a fine [with
proclamations, and five years pass without any
claim made by his heir, [viz. the heir of the ancestor
who died seised,] hereby the heir is barred for the
present; but if afterwards the condition be broken,
and the abator enter, [thus defeating the estate of
the feoffee,] then the heir may have an assise of
mordancester against the abator, or enter when he
will; [for as the seisin on which the fine operated,
and to which the fine was a protection, is defeated,
the effect of the fine is gone. Had the estate of
Me feoffee been affirmed by release, confirmation,
&c. then the fine and non-claim would have conti-
nued in operation.]

cause the

Estrangers to fines that have neither present 6. That have no nor future right at the time of the levying of the right before same fines, by reason of any matter before the fine. fines levied, whose right groweth entirely before

(a) Plowden has the point, but not the conclusion; on the contrary, Plowden says, the heir shall be aided by the second saving; and of course he has only five years. And see the case put by him of a mortgagor.

G

the proclamations, or partly before and partly
after, may make their claim, &c. when they please.
As if a father die seised of land, his elder son being
professed, and the younger son entereth and is dis-
seised, and a fine with proclamations is levied by the
disseisor, and then the elder son is de-arraigned, in
this case it seems he is bound to no time (42). [As
the case cannot now happen, it is of little importance,
except for its principle; but on principle it would
seem to be clear that the heir would be barred,
unless the fine were avoided by entry, &c. within
five years after the de-arraignment.] So if a tenant
cease one year, and then a fine with proclamations

is levied, and after the tenant ceaseth another year, *P. 34. the lord may * have his cessavit twenty years [being the limitation to rights of entry, by the 21 Jas. 1, c. 16.] after the proclamations. [In this instance the right to enter did not arise till the end of the two years; and the fine, when levied, was not adverse to the title of the lord. The lord claimeth under the seigniory, and not under the tenancy, and his title is complete by the cessavit for the second year, for till the cessavit for the second year; there is not any right of entry. This is an instance of a bar to a person who has a seigniory and not any estate, and consequently there is not any devesting. Thus the right of entry is barred by force of adverse possession, although the rent, services, &c. remain. This case approximates to that under which a title of dower is barred. In the case of a fine by the disseisor while the daughter is heir, and her title is defeated by the birth of a nearer heir, the title was adverse to the heir, whoever might be heir.]

7. That have fu

vers titles.

And estrangers to fines, that have several future Plow. 537.367.

ture rights by di- rights by divers titles growing [viz. commencing] 372.
at several times, it seemeth shall have several five
years to make their claims, &c. commencing from
the several times that their titles [of entry, &c.] do
first accrue unto them. As if tenant for life, the
remainder in fee, make a feoffment in fee, and the
feoffee levy a fine with proclamations, and he in
the remainder suffer the five years to pass, in this
case he is barred of his entry upon the alienation

(42) As to the doctrine of profession, see Vin. Abr. Profession, and the several titles there

for the forfeiture; but it hath been held that if the tenant for life die, that he, [the owner of the remainder,] shall have another five years time to bring his Plow. 357-367. formedon in the remainder, [for a formedon lies, F.N. B. 542.] So if the husband make a feoffment of his wife's land to another upon condition, which is broken, and he [the feoffee] levieth a fine [with proclamations] of this land, and the husband hath issue by his wife and dieth, and the first five years pass, and then his wife dieth, hereby he [the heir] is barred of the title by the condition, [for in respect of the condition he must claim in right of his father ;]' but he shall have five years more [from the death of the father] to make his claim as heir to his mother [under her title; and these five years may, provided the mother survive the father, begin to run in the time of the mother. If the father had survived the mother, then the right of avoiding the alienation by feoffment, would have first accrued to the heir.] But if lands be given to H. for the life of A., the remainder to B. for life, the remainder to H. in fee, and H. is disseised, and after the disseisor levy a fine [with proclamations,] and five years pass, in this case [1 Prest. Conv. 240,] some say H. is barred both of his present and future estate, and shall have no further time to make his claim, &c.; and yet [some say] if cestuy que vie and he in the mesne remainder die, H. shall have another five years to make his claim to preserve his remainder. In like manner it is if land be given to H. for the life of A. the remainder to him for the life of B. the remainder to him for the life of C. and he is disseised, and the disseisor levieth a fine with proclamations, in this case some say H. for his present right shall have five years by the first saving of the statute, and five years after the death of A. by the second saving of the statute, [because the party had a present right, and the savings are to other persons. This doctrine was admitted by some, though denied by other Judges, in Zouch v. Bampfield, Plow. Com. 357. But the example is not correctly put for the purpose of the illustration, since one of these estates for life would, it is apprehended, merge in the other, on its creation.] If one disseise a feme sole, and after marry her and have issue by her, and the husband is disseised before marriage or after, and then a fine is levied with proclamations, and

11. How a fine

the husband dieth first, and afterwards the wife
dieth within the five years, the issue being of full
age, the five years pass, hereby he is bound as heir
to his father, but he shall have five years more after
the death of his mother to make his claim, &c. [as
her heir, on the ground of her title as disseisee.
Had the mother died in the life of the father, the
son might have claimed even in his father's lifetime;
and must, if free from disabilities, have prosecuted
his title as heir to his mother, by claiming the estate
within five years from her death.] Quando duo
jura in una persona concurrunt, æquum est ac si
essent in diversis (43).

Where there is a precedent agreement amongst Co. 10. 96. 2. shall enure and the parties, as a feoffment or the like, there the in Cromwell's fine shall not pass any thing, nor work by way of estoppel, but only by way of corroboration, and shall be guided by the precedent agreement. [The proposition seems too general and unqualified.] And therefore if a feoffment be made to two and their heirs, and after a fine is levied to them two and the heirs of one of them, this [fine] shall enure as a release, and shall not alter the estate; [this seems to be principally on account of the practice of requiring that a fine shall not be levied to two and their heirs, but to them and the heirs of one of them, but if there be no precedent agreement it shall work as it may, (viz. to give the parties an estate for life with the inheritance to one of them, according to the form of the limitation.]

If A. enfeoff B. of certain land in fee, rendering Dyer, 157. rent, with condition of re-entry for not payment of Fitz. Estoppel,

*P. 35. rent, and by indenture at the * same time [or at a subsequent time] covenant to levy a fine of the same land to the feoffee to the uses and conditions in the deed of feoffment, and after a fine is levied sur conusance de droit come ceo, &c. accordingly, in this case this fine shall enure as a fine sur release, [viz. as part of the same assurance, or by way of further assurance, because it is part of the same transaction or title; and] because the conusee hath the fee before, and it shall not enure by way of estoppel, albeit it be a fine sur conusance de droit come ceo,

Estoppel.

Extinguishment. &c. And therefore the rent and condition shall remain in this case, and not be extinct.

211. Co. 2. in

Cromwel's case.

[And a fine and deed of uses may operate as an (43) See further how the five years non-claim shall be accounted. Vin. Abr. Fine, (H. a.)