son who levies the fine is perfectly consistent with the right to exercise the authority. On the same ground, and for the same reasons, non-claim on the fine of a trustee will not bar the title of the cestui que trust (c), nor will non-claim on the fine of a mortgagor or mortgagee bar the right of the other of them; but if a cestui que trust enters, and claims to hold adversely, as against his trustee, (and to do this, he ought regularly to make a feoffment before he levies a fine), this fine, with non-claim, may become a bar to the estate of the trustee (d). It seems also to be settled, that the fine of one cestui que trust may be a bar to another of them (e); and it is a general and leading rule, that whenever a trustee is barred by the operation of a fine, then, except in cases of fraud, infancy, &c. (f), 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 (c) Gilb. Ch. 62. Focus v. Salisbury, Hard. 400. the trust; a fine and non-claim may be set up as a bar to the claim of a trust (g). There is another distinction with respect to equitable titles, 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: 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 is no bar (h). 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 (i): but in 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 (k). 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. (g) Mitford's Pleadings, 203. (i) Thomasin v. Mackworth, Carter, 75. Generally speaking, all persons who have an absolute estate, and all corporations who have an absolute ownership, which confers an unlimited power of alienation (1), 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. In the first place, it is apprehended, the king (m) cannot be barred by non-claim on a fine; nor can ecclesiastical corporations, aggregate or sole, be barred by non-claim on a fine, but ecclesiastical persons, being sole corporations, may be barred, in respect of their ownership, by their non-claim, as in the case of a bishop, parson, or vicar (n): and each successor will also be barred, unless he avoids the fine within five years after the title accrues also the head of a corporation aggregate of many, may be barred by his non-claim on a fine, and by that means the remedy of the corporation may be suspended (0) while he continues the head of the corporation. : (1) Croft v. Howel, Plow. 536. (m) 11 Co.74. Co. Litt. 90. 1 BI. Com. 217. (6) Howel's Case, Ibid. 376. Magdalen's Case, 11 Co. 78, b. The same rule applies to lands annexed to offices for life, and fines levied of such lands. The officer for the time being may be barred by five years non-claim; but the non-claim of one officer will have no effect on his successor (p). It follows that no title, depending on nonclaim, can ever be good, as against an ecclesiastical corporation, aggregate or sole, if the title depends merely on a fine and non-claim; 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 nonclaim, remains at the head of the corporation. Secondly. All persons, except infants, persons of unsound mind, women under coverture, 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 proclamations are made. And persons who are infants, &c. are bound to avoid the fine within five years after their disabilities are removed; and per (P) Plowd. 538, 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 underdisabilities, 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 (q), it has been said the fine will run against each at the same time.* When several persons are joint-tenants, coparceners, or tenants in common, the fine may run as against those who are free from disabilities, although its operation is suspended as against such of them as labour under disabilities. This is understood to be law, though no authority in point is adduced. 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, at the time his right commenced, laboured under one of his disabilities mentioned in the statute; and when it shall be ascertained that any such disability existed at the time when (q) Co. Copyh. 155. 9 Co. 105. b. Plowd. 374. Whaley v. Tankard. 2 Lev. 52. This distinction is now exploded. |