Sivut kuvina

gives the cognizee a seisin in law, without any actual livery; and is therefore called a fine executed, whereas the others

are but executory.

3. We are next to consider the force and effect of a fine. 3. Of their These principally depend, at this day, on the common law, force and effect. and the two statutes, 4 Hen. VII. c. 24, and 32 Hen. VIII.

c. 36. The antient common law with respect to this point,

*is very forcibly declared by the statute 18 Edw. I., in these [ *354 ] words: "And the reason, why such solemnity is required "in the passing of a fine, is this: because the fine is so high "a bar, and of so great force, and of a nature so powerful “in itself, that it precludes not only those which are parties " and privies to the fine, and their heirs, but all other per"sons in the world, who are of full age, out of prison, of "sound memory, and within the four seas, the day of the "fine levied; unless they put in their claim on the foot (h) of "the fine within a year and a day." But this doctrine, of barring the right by non-claim, was abolished for a time by a statute made in 34 Edw. III. c. 16, which admitted persons to claim and falsify a fine, at any indefinite distance (i); whereby, as Sir Edward Coke observes (k), great contention arose, and few men were sure of their possessions, till the parliament, held 4 Hen. VII., reformed that mischief, and excellently moderated between the latitude given by the statute and the rigour of the common law. For the statute then made (1), restored the doctrine of non-claim; but extended the time of claim. So that now, by that statute, the right of all strangers whatsoever is bound, unless they make claim, by way of action or lawful entry, not within one year and a day, as by the common law, but within five years after proclamations made: except feme-coverts, infants, prisoners,

(h) Sur la pie as it is in the Cotton MS. and not pur le pais, as printed by Berthelet, and in 2 Inst. 511. There were then four methods of claiming, so as to avoid being concluded by a fine: 1. By action; 2. By entering such claim on the record at the foot of the fine;

3. By entry on the lands; 4. By con-
tinual claim. (2 Inst. 518). The second
is not now in force under the statute of
Hen. VII.

(i) Litt. s. 441.
(k) 2 Inst. 518.

(2) 4 Hen. VII. c. 24. See page 118.

By 32 Hen.
VIII. c. 36, a

fine duly levied
is declared to be
a perpetual bar

to an estatetail.

persons beyond the seas, and such as are not of whole mind; who have five years allowed to them and their heirs, after the death of their husbands, their attaining full age, recovering their liberty, returning into England, or being restored to their right mind †.

It seems to have been the intention of that politic prince, king Hen. VII., to have covertly by this statute extended fines to have been a bar of estates-tail, in order to unfetter the more easily the estates of his powerful nobility, and lay *them more open to alienations; being well aware that power

[*355] will always accompany property. But doubts having arisen

As to the persons bound by a fine.


whether they could, by mere implication, be adjudged a sufficient bar, (which they were expressly declared not to be by the statute de donis), the statute 32 Hen. VIII. c. 36, was thereupon made; which removes all difficulties, by declaring that a fine levied by any person of full age, to whom or to whose ancestors lands have been entailed, shall be a perpetual bar to them and their heirs claiming by force of such entail: unless the fine be levied by a woman after the death of her husband, of lands which were, by the gift of him or his ancestor, assigned to her in tail for her jointure (m); or unless it be of lands entailed by act of parliament or letters patent, and whereof the reversion belongs to the crown.

From this view of the common law, regulated by these statutes, it appears, that a fine is a solemn conveyance on record from the cognizor to the cognizee, and that the persons bound by a fine are parties, privies, and strangers.

The parties are, either the cognizors, or cognizees, and these are immediately concluded by the fine, and barred of (m) See statute 11 Hen. VII. c. 20.

† Mr. Christian observes that, "this is the chief use and excellence of a fine, that it confirms and secures a suspicious title, and puts an end to all litigation after five years. Other conveyances and assurances admit an entry

to be made upon the estate within twenty years, and, in some instances, the right to be disputed in a real action for sixty years afterwards. (Harg. Co. Litt. 121 a, n. 1).

any latent right they might have, even though under the legal impediment of coverture. And, indeed, as this is almost the only act that a feme-covert, or married woman, is permitted by law to do, (and that because she is privately examined as to her voluntary consent, which removes the general suspicion of compulsion by her husband), it is, therefore, the usual and almost the only safe method, whereby she can join in the sale, settlement, or incumbrance, of any estate +.

Privies to a fine are such as are any way related to the Privies. parties who levy the fine, and claim under them by any right of blood, or other right of representation. Such as are the heirs general of the cognizor, the issue in tail, since the statute of Henry the eighth, the vendee, the devisee, and all others who must make title by the persons who levied the fine. For the act of the ancestor shall bind the heir, and the act *of the principal his substitute, or such as claim [356] under any conveyance made by him subsequent to the fine

so levied (n).

Strangers to a fine are all other persons in the world, Strangers. except only parties and privies. And these are also bound by a fine, unless, within five years after proclamations made, they interpose their claim; provided they are under no legal impediments, and have then a present interest in the estate. The impediments, as hath before been said, are coverture, infancy, imprisonment, insanity, and absence beyond sea: and persons who are thus incapacitated to prosecute their (n) 3 Rep. 87.

Mr. Christian observes, that "a wife may join her husband in either a fine or recovery to convey her own estate and inheritance, or an estate settled upon her by her husband as her jointure, or to convey the husband's estates discharged of dower. 1 Cru. 99. 2 Cru. 143. Pig. 123. But, if a joint


tress, after her husband's death, levies
a fine or suffers a recovery without the
consent of the heir, or the next person
entitled to an estate of inheritance, the
fine or recovery is void, and
also a
forfeiture of her estate. (11 Hen. VII.
c. 20. Pig. 75)."


To make a fine available, the parties must

in the land.

rights, have five years allowed them to put in their claims after such impediments are removed. Persons, also, that have not a present, but a future interest only, as those in remainder or reversion, have five years allowed them to claim in, from the time that such right accrues (o). And if within that time they neglect to claim, or (by the statute 4 Ann. c. 16), if they do not bring an action to try the right within one year after making such claim, and prosecute the same with effect, all persons whatsoever are barred of whatever right they may have, by force of the statute of nonclaim.

But, in order to make a fine of any avail at all, it is necessary that the parties should have some interest or estate have an interest in the lands to be affected by it. Else it were possible that two strangers, by a mere confederacy, might, without any risque, defraud the owners by levying fines of their lands; for, if the attempt be discovered, they can be no sufferers, but must only remain in statu quo: whereas, if a tenant for life levies a fine, it is an absolute forfeiture of his estate to the remainder-man or reversioner (p), if claimed in proper time. It is not, therefore, to be supposed that such tenants will frequently run so great a hazard; but if they do, and the claim is not duly made within five years after their respective terms expire (q), the estate is for ever barred by it. Yet, where a stranger, whose presumption cannot thus be punished, officiously interferes in an estate which in nowise [357] belongs to him, *his fine is of no effect; and may at any time be set aside (unless by such as are parties or privies thereunto) (r), by pleading that " partes finis nihil habuerunt." And, even if a tenant for years, who hath only a chattel interest, and no freehold in the land, levies a fine, it operates nothing, but is liable to be defeated by the same plea (s). Wherefore, when a lessee for years is disposed to levy a fine, it is usual for him to make a feoffiment first, to displace

(0) Co. Litt. 372.
(p) Ibid. 251.

(9) 2 Lev. 52.

(r) Hob. 334.

(s) 5 Rep. 123. Hardr. 401.

the estate of the reversioner (t), and create a new freehold by disseisin. And thus much for the conveyance or assurance by fine: which not only, like other conveyances, binds the grantor himself, and his heirs; but also all mankind, whether concerned in the transfer or no, if they fail to put in their claims within the time allotted by law†.

IV. The fourth species of assurance, by matter of re- IV. Common cord, is a common recovery. Concerning the original of recoveries. which it was formerly observed (u), that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain; and afterwards encouraged by the finesse (5) of (u) Pag. 117, 271.

(t) Hardr. 402. 2 Lev. 52.

(5) The observations made, ante, in note (5), to p. 271, and in note (4) to p. 348, are applicable here.

When the nobles of the land formed a body too powerful for both the king and the people, their concurrence in any legislative enactment rendering their estates alienable, was not to be expected. Under such circumstances, any chicanery, any feigned process, (however gross the fiction, and how

ever notoriously untrue the plea so-
lemnly recorded), was justifiable to
sap and undermine the basis of petty
feudal tyranny; no more direct and
open means being in the power of our
ancestors. But, why should all these
figments, and every technical detail of
the artificial contrivances by which they
were, and still are, carried on, be re-
tained, now they are no longer ne-
cessary. It being now incontroverti-

fee, levies a fine, the base fee merges
in the reversion, which will become
liable to all the incumbrances of the
ancestors from whom the estate-tail
descended; as judgments, recognizan-
ces, and such leases as are void with
respect to the issue in tail. (5 T. R. 108.
1 Cru. 274). A recovery suffered by
any tenant in tail lets in all the incum-
brances created by himself, which were
defeasible by the issue in tail; and after
the recovery, they will follow the lands
in the hands of a bond fide purchasor.
(Pig. 120. 2 Cru. 287)."

+ Mr. Christian observes, "it is not necessary to be in possession of the freehold in order to levy a fine; but if any one entitled to the inheritance, or to a remainder in tail, levies a fine, it will bar his issue and all heirs who derive their title through him. Hob. 333. A fine by tenant in tail does not affect subsequent remainders, but it creates a base or qualified fee, determinable upon the failure of the issue of the person to whom the estate was granted in tail; upon which event, the remainder-man may enter. If tenant in tail, with an immediate reversion in

« EdellinenJatka »