twenty-one years, of age, in prison, or out of the realm, or not of whole mind at the time of the fine being levied, not parties to such fine, so as the said women covert, persons within age, &c., or their heirs (32), pursue their right by action or entry, within five years after the removal of their respective disabilities." Then follow the saving clauses; which are, 1st, Saving to every person and their heirs (other than parties) such right as they have at the time of such fine engrossed, so that they pursue their claim by action or entry within five years after the proclamations (33). 2nd, Saving to all other persons such right, claim, and interest, as first (34) shall

statute, however, contained several exceptions particularly one of fines of lands, of which the reversion is in the crown. In consequence of this exception, the question again arose in the Earl of Derby's case, whether a fine depending wholly on the 4 Hen. VII. was a bar to the issue in tail; eight judges against three held that it was. T. Raym. 260, 286, 319, 338; Pollexf. 491; Skin. 95; 2 Show. 104; T. Jo. 237. See further on this subject Mr. Hargrave's excellent note, Co. Litt. 121, a. n. (1). N. A fine levied by tenant in tail bars the estate tail, but not the remainders or reversion expectant thereon. Where a fine is levied by tenant in tail, who dies before all the proclamations are past, yet will the issue in tail be barred, provided the proclamations are afterwards duly made. Purslow's case, cited 3 Rep. 90, b.

(32) By this provision, the rights of those persons who are under disabilities, and of their heirs, are saved as long as the disabilities continue and five years after, but no longer. A., seised in fee of lands, died, leaving B. his heir, a feme covert. Upon the death of A., a stranger made a tortious entry on the lands, continued in possession, and levied a fine sur cognizance de droit come ceo, &c. with proclamations. B. afterwards died under coverture, no entry having been made on her behalf to avoid the fine, leaving C. her heir not affected with any of the disabilities mentioned in the statute. It was holden, that C., who had not pursued his right within five years after the death of B., was barred by the fine. Dillon v. Leman, 2 H. Bl. 584.

(33) By force of this clause, persons having a present right to lands whereof a fine is levied, and not being parties to such fine, may pursue their claim within five years, to be computed from the day on which the last proclamation was made.

(34) One who had a future interest, but no present right of entry at the time of the fine levied, died, and the five years passed, and afterwards administration was granted; it was holden, that the administrator should have five years to sue from the granting of the letters of administration, for none had title of entry before. Sanders v. Stanford, cited in Saffyn v. Adams, Cro. Jac. 61. But where a lease for years of land was made to commence from the end of a term for years then in being; the first term expired, the second lessee did not enter, but the reversioner entered and made a feoffment, and levied a fine with proclamations; five years passed: it was holden, that the fine and the non-claim of the second lessee had barred him of his term for although lessee for years has not such an estate as will

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accrue after the proclamations, by force of any gift in tail, or by any other matter had and made before the fine levied, so as they pursue their right within five years after the same shall grow due; and further, if the said persons are under any of the before-mentioned disabilities at the time when their right first accrues, they or their heirs may pursue their right within five years next after the removal of the disability. 3rd, Saving to every person, not party nor privy to the fine, their exception to avoid the fine, by that, that those which were parties to the fine, nor any person to their use, had nothing in the lands at the time of the fine levied. Such are the provisions of the statute on which the force and effect of fines heretofore levied, principally depended, and by virtue of which, a fine levied by tenant of the freehold, with five years' nonclaim, operates as a bar to an ejectment, except in those cases which are specially provided for by the statute. The statute, as to the engrossment of the fine before the proclamation, is only directory (r). Where the fine being levied at the great sessions, the indorsement of the proclamations was headed, "according to the form of the statute;" it was holden (s), that the omission afterwards to state the place where the sessions were holden, was immaterial. A., tenant for life, with remainder to his own executors for forty years, with remainder to B. in fee, levied a fine sur conusance de droit, with proclamations, in Hil. T. 1733-4. B., not having made an entry to avoid the fine, in 1735, devised to C. for life, with remainder to D. in tail, and died in that year; in 1738, A. died; C. died in 1803, not having made an entry; in 1805, D. entered for the purpose of avoiding the fine, and brought ejectment. It was holden, that D. was not entitled to recover; for the right of entry was confined to five years after the expiration of the term of forty years, that is, to five years after 1778; and B. could not by his will give a right to avoid this fine at a more distant period than the end of the five years; that the devisee was exactly in the same state as the heir; and that, as the title of D. did not "first accrue to him after the fine by matter before the fine," but by the will of B., which was after the fine, D. could not claim the benefit of the second saving (t). This statute extends to copyholds (u). With respect to the clauses relating to disabilities, it may be observed, that if he who has a present right, and is not

(r) Doe d. Fleming v. Ford, 1 A. & E. 765.

(s) Doe d. Jones v. Harrison, 3 B. & Ad. 764.

(1) Goodright v. Forester, Exch. Chr. 1 Taunt. 578. (u) 9 Rep. 105, a.

enable him to levy a fine, yet shall his interest be barred by the statute; for the words of the statute are general; ("the said fine with proclamations shall be a final end, and conclude as well privies as strangers to the same;") and the words of the saving are, (such right, claim, and interest,) and tenant for term of years has an interest. Saffyn v. Adams, 5 Rep. 123, b.; Cro. Jac. 60, S. C.

under any disability, brings on himself a disability; as if, being within the realm at the time of the fine levied, he should afterwards go beyond sea, or the like; in these cases he will not be allowed any longer time to pursue his right than during the first five years after proclamation had (x). So when the disability is once removed, the five years begin to run, and will continue to run, notwithstanding any subsequent disability, either voluntary or involuntary (y). It will be proper to remark also, that the exceptions in favour of infants, femes covert, &c. extend to those only to whom a right first accrues, and in whom it first attaches; for if a person to whom a right first accrues, dies before the expiration of the five years, and such right descends to his son, or heir at law, who is then under age, or labours under any of the other disabilities mentioned in the act, such son or heir must pursue his right within the five years, which began to run in the time of his ancestor, otherwise he will be barred (z). A fine levied by tenant for life divests and displaces all estates in reversion or remainder (a), and leaves nothing in the reversioner or remainder-man but a mere right of entry (35); and where the fine is levied by tenant for life of parcel of a manor, the reversion of which parcel is in the tenant in fee in possession of the other parts of the manor, the effect of the fine is to sever such parcel from the manor. Where tenant in tail, under a settlement, (which also created a term of years,) levied a fine; it was holden (b), that being seised of the immediate estate of freehold, the fine worked a discontinuance and displaced the remainders, whereby he acquired a tortious fee; and no step having been taken to set aside the tortious estate, it became descendible and capable of being devised, and the devisee therefore entitled to recover; for a person seised of a base fee can devise it like a fee simple.

Proof of Fine.-The chirograph of a fine is evidence of such fine; because the chirographer is appointed to give out copies of the agreement between the parties, which are lodged of record (c). But where a fine is to be proved with proclamations, an examined copy of the proclamations must be produced in evidence (d); for although the chirographer is authorized by the common law to make out copies to the parties of the fine, yet he is not appointed by the statutes to copy the proclamations, and therefore his indorsement on the back of the fine, that the proclamations have been duly made, will not be sufficient evidence (e).

(x) Shep. Touch. 29.

(y) Doe d. Duroe v. Jones, 4 T. R. 300. (z) Stowell v. Zouch, Plowd. 355. (a) Goodright v. Forrester, 8 East, 552. (b) Doe d. Cooper v. Finch, 4 B. & Ad. 283.

(c) Bull. N. P. 229.

(d) Chettle v. Pound, Bull. N. P. 229; Allen's case, Clayt. 51, S. P.

(e) See Doe d. Hatch v. Bluck, 6 Taunt. 486, 7.

(35) This right of entry was not devisable, S. C. But see 1 Vict. c. 26, s. 3.

Entry barred by Stat. of Limitations, 21 Jac. I. c. 16; 3 & 4 Will. IV. c. 27.-By the statute of James, no person could make an entry into any lands, tenements, or hereditaments, but within twenty years next after his right or title first descended or accrued. The plaintiff, therefore, in ejectment, must have proved either actual possession or a right of entry within twenty years, or have accounted for the want of it; for, by force of that statute, an uninterrupted adverse possession for that period operated as a complete bar, except in those cases which fell within the second section, which comprehend five disabilities, viz. infancy, coverture, non compos mentis, imprisonment, and absence beyond seas (36). Under this clause, if the party to whom the right of entry first accrued was under disabilities at that time, he was allowed to bring his action, although the twenty years might have expired, so as he brought it within ten years after the removal of the disability. And in the case of his death, the heir had ten years from that time to bring his action (f). An opinion at one time prevailed, that, under the foregoing statute, successive tenants in tail had distinct and successive rights, but that has been decided otherwise; and it is now settled, that the twenty years under the foregoing statute begin to run when the title descends to the first heir in tail, not being under a disability (g). After the removal of the disability, when the time once begins to run, nothing can stop it (h).

Notwithstanding the foregoing statute, the right of bringing an ejectment frequently existed long after the power of trying a real action had determined; for either when disabilities lasted for sixty years after the death of the ancestor, or when estates in remainder did not come into possession until after that time, real actions were barred by the 32nd of Hen. VIII. c. 2, but the right of entry was saved by the provisions of the 21 Jac. I. c. 16 (i).

But now by stat. 3 & 4 Will IV. c. 27 s. 2, no person shall make

(f) Doe v. Jesson, 6 East, 80.

(g) Tolson v. Kaye, 3 Brod. & Bingh. 217; Cotterell v. Dutton, 4 Taunt. 826. (h) Doe v. Jones, 4 T. R. 300.

(i) See Tyrrell's Suggestions on the Laws of Real Property, (not published,) p. 99.

(36) Ireland was a place beyond the seas within this clause, Anon. 1 Show. 91. But this has been altered by the new statute. See post, Sect. 19, p. 748. The statute of Jac. runs against the lord of a manor as well as against any other person; Greeby v. Preston, Norfolk Summ. Ass. 1728, Lord Raymond, C. J.; Serjt. Leeds MSS. Hence, if a house, &c. be built on the waste, the lord should take care to have some entry made of it on his books, and reserve some rent or service; otherwise he will lose his right. See Doe d. Watt v. Morris, 2 Bingh. N. C. 189, on the construction of the 21 Jac. I. c. 14, limiting the right of the crown to twenty years. Possession of lands is not possession of mines under them, where there has ever been a distinct grant of mines. Hodgkinson v. Fletcher, 3 Doug. 31.

an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same. In the construction (k) of this act, the right to make an entry or distress, or bring an action to recover any land or rent, shall be deemed to have first accrued at such time as hereinafter is mentioned; (that is to say,) 1. When the person claiming such land or rent, or some person through whom he claims, shall, in respect of the estate or interest claimed, have been in possession or in receipt of the profits of such land, or in receipt of such rent, and shall, while entitled thereto, have been dispossessed, or have discontinued such possession or receipt, then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were so received; 2. And when the person claiming such land or rent shall claim the estate or interest of some deceased person who shall have continued in such possession or receipt, in respect of the same estate or interest, until the time of his death, and shall have been the last person entitled to such estate or interest, who shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time of such death; 3. And when the person claiming such land or rent shall claim in respect of an estate or interest in possession, granted, appointed, or otherwise assured by any instrument (other than a will,) to him, or some person through whom he claims, by a person being in respect of the same estate or interest in the possession or receipt of the profits of the land, or in the receipt of the rent, and no person entitled under such instrument shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time at which the person claiming, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument; 4. And when the estate or interest claimed shall have been an estate or interest in reversion or remainder, or other future estate or interest, and no person shall have obtained the possession or receipt of the profits of such land, or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession; 5. And when the person claiming such land or rent, or the person through whom he claims, shall have become entitled by reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was incurred or such condition was broken.

(*) Sect. 3.