Imatges de pàgina
PDF
EPUB

It is also a

by the fine of the other (w). general and leading rule, that whenever a trustee is barred by the operation of a fine, then, except in cases of fraud, infancy, &c. (x) the cestui que trust will also be barred : and Lord Redesdale has laid down the rule to be, whenever a person comes in by a title, opposite to the title to a trust estate, or comes in under the title to the trust estate for a valuable consideration, without fraud or notice of fraud, or of the trust; a fine and non-claim may be set up as a bar to the claim of a trust (y).`

With respect to equitable titles, there is another distinction, first, where the equity charges the lands only, as is the case, as between a stranger and the cestui que trust, a fine and non-claim is a good bar: secondly, when it charges the person only, in respect of the lands, as in the case between the trustee and the cestui que trust, the fine and non-claim are not a bar (z).

In short, any right or title of entry, from whatever cause it arises, may be barred by a fine with non-claim; as a right of entry in trustees for the purpose of raising a sum of money after the birth of a child (a). In

(w) 2 Freem, 21, 2 Vern. 189.

(x) Alleyn v. Sayer, 2 Vern. 368.

(y) Mitford's Pleadings, 203.

(z) 1 Ch. Ca. 278; 2 Atk. 390.

(a) Thomasin worth, Carter, 75.

V. Mack

that case, it is to be observed, the fine was levied after the right of entry accrued.

So a fine with proclamations may bar a remedy by action, as the right to bring error to avoid a fine (b).

It is now to be considered, what persons may be barred by a fine, and non-claim thereon, and the times at which the bar will be complete.

Generally speaking, all persons who have an absolute estate, and all corporations who have an absolute ownership, conferring an unlimited power of alienation (c), may be barred by non-claim on a fine. In some cases, the bar will be partial, so as to operate only against the owner for the time being, by reason of his own non-claim (d).

In the first place, it is apprehended, the king (e) cannot be barred by non-claim on a fine. Nor can ecclesiastical corporations, aggregate or sole, quâ corporations (ƒ), be barred by non-claim on a fine. But ecclesiastical persons (g), being sole corporations,

[merged small][ocr errors][merged small][merged small][merged small]

may be barred, in respect of their ownership,
by their non-claim, as in the case of a bishop,
parson, or vicar: and each successor will also
be barred, unless he avoids the fine within
five
years
after his title accrues (h): also the
head of a corporation aggregate of many (i),
may be barred by his non-claim on a fine,
and by that means the remedy of the cor-
poration may be suspended, while he conti-
nues the head of the corporation.

The same rule applies to lands annexed [236] to offices for life, and fines levied of such lands. The officer for the time being may be barred by five years non-claim. The non-claim however of one officer will not bar or conclude his successor (j).

It follows that no title, depending on non-claim, can ever be good, as against an ecclesiastical corporation, aggregate or sole, if the title depend merely on a fine and nonclaim though in the case of such corporation a good title may be gained, while the particular person, being a sole corporation, continues to represent the corporation; or the head of a corporation, aggregate of many, by whom there has been five years

[blocks in formation]

non-claim, remains at the head of the corporation.

But a title may, it is submitted, become good under the general statutes of limitation; since in these statutes there is not, either in fact, or in principle, any saving for the successor. The successor is without remedy, unless he can show a seisin within the limited period.

Secondly. All persons, except infants, persons of unsound mind, women under 'coverture, persons out of the realm, and persons in prison at the time of the last proclamation made, and also, except persons who have not a present right of entry, are bound to avoid the fine within five years after the last proclamation made.

And persons who are infants, &c. are bound to avoid the fine within five years after their disabilities are removed; and per[237]sons who have not a present right of entry,

or claim, are bound to make entry or claim within five years after their right of entry or claim arises; unless they labour under disabilities, and in that case, within five years after their disabilities are removed. And if several persons have severally present rights, as termor for years, and freeholder, lord and copyholder (k), it has been said the

(k) Co. Copyh. s. 55; 9 Co. 105, b; Plowd. 374.

fine will run against each at the same time. But this distinction is now exploded ().

When several persons are joint-tenants, co-parceners, or tenants in common, the fine may run as against those who are free from disabilities, and in respect of their shares, although its operation be suspended as against such of them as labour under disabilities, and for their shares (m).

In all cases, when a person claims in opposition to a fine, it becomes necessary to consider at what time his right of entry, &c. commenced, unless that person laboured at the time his right commenced, under one of the disabilities mentioned in the statute. As soon as it shall be ascertained that any such disability existed at the time when the right of entry commenced, the [ 238 ] next inquiry should be, at what time the disability ceased.

In case of persons having immediate rights, the fine begins to run from the last proclamation on the fine.

From these observations, several conclusions may be drawn, and the observations may be illustrated by their appropriate

cases.

First. No one is bound to enter, &c. till

(1) Bac. Abr. Remainder G. P. 830.

Whaley v. Tankard, 2 Lev. 52, 1 Vent. 241, 2 Vent. 234.

Brandlyn v. Ord, 1 Atk.

571.

(m) Roe v. Rowlston, 2 Taunt. 441.

« AnteriorContinua »