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3. WE are next to confider the force and effect of a fine. Thefe principally depend, at this day, on the common law, and the two ftatutes, 4 Hen. VII. c. 24. and 32 Hen. VIII. [ 354 c. 36. The antient common law, with refpect to this point, ] is very forcibly declared by the ftatute 18 Edw. I. in thefe words. "And the reafon, why fuch folemnity is required "in the paffing of a fine, is this; because the fine is so high "a bar, and of fo great force, and of a nature so powerful "in itself, that it precludes not only thofe which are parties "and privies to the fine, and their heirs, but all other per

fons in the world, who are of full age, out of prifon, of "found memory, and within the four feas, the day of the "fine levied; unless they put in their claim on the foot 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 ftatute made in 34 Edw. III. c. 16. which admitted perfons to claim, and falfify a fine, at any indefinite distance 1: whereby, as fir Edward Coke obferves *, great contention arofe, and few men were fure of their poffeffions, 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 ftatute, then made', restored the doctrine of non-claim; but extended the time of claim. So that now, by that statute, the right of all ftrangers 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 after proclamations made: except feme-coverts, infants, prifoners, perfons beyond the feas, and fuch as are not of whole mind; who have five years allowed to them and their heirs, after the death of their hufbands, their attaining full age, reco

Sur la pie as it is in the Cotton MS. and not pur le fais as printed by Berthelet and in 2 Inft. 511. There were then four methods of claiming, fo as to avoid being concluded by a fine: 1. By action. 2. By entring such claim on the record at the foot of the fine. 3. By

entry on the lands. 4. By continual claim. 2 Inft. 518. The fecond is not now in force under the ftatute of Henry VII.

i Litt. § 441.
k2 Inft. 518,

14 Hen. VII. c. 24. See page 118.

vering their liberty, returning into England, or being reftored to their right mind (1).

Ir feems to have been the intention of that politic prince, king Henry VII, to have covertly by this ftatute extended fines to have been a bar of estates tail, in order to unfetter the more eafily the estates of his powerful nobility, and lay them more open to alienations; being well aware that power will always accompany property. But doubts having arisent whether they could, by mere implication, be adjudged a fufficient bar, (which they were expressly declared not to be by 【 355 ] the ftatute de donis) the ftatute 32 Hen. VIII. c. 36. was thereupon made; which removes all difficulties, by declaring that a fine levied by any perfon of full age, to whom or to whofe ancestors lands have been entailed, fhall 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 ancestors, affigned to her in tail for her jointure; or unless it be of lands entailed by act of parliament or letters patent, and whereof the reverfion belongs to the crown.

FROM this view of the common law, regulated by these ftatutes, it appears, that a fiue is a folemn conveyance on record from the cognizor to the cognizee, and that the perfons 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 itatute 11 Hen. VII. c. 20.

(1) This is the chief excellence and use of a fine, that it confirms and fecures a fufpicious title, and puts an end to all litigation after five years. Other conveyances and affurances admit an entry to be made upon the eftate within twenty years, and in fome inftances, the right to be difputed in a real action for fixty years afterwards. Harg. Co. Litt. 121. a. n. I.

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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 exa mined as to her voluntary confent, which removes the general fufpicion of compulsion by her husband) it is therefore the ufual and almoft the only fafe method, whereby fhe can join in the sale, fettlement, or incumbrance, of any estate (2).

PRIVIES to a fine are fuch as are any way related to the 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 iffue in tail fince the ftatute 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 fhall bind the heir, and the act of the principal his fubftitute, or fuch as claim under any conveyance made by him fubfequent to the fine fo levied ".

[356] - STRANGERS to a fine are all other perfons in the world, except only parties and privies. And these are also bound by a fine, unless, within five years after proclamations made, they interpofe their claim; provided they are under no legal impediments, and have then a prefent intereft in the estate. The impediments, as hath before been faid, are coverture, infancy, imprisonment, infanity, and abfence beyond fea: and perfons, who are thus incapacitated to profecute their rights,

B 3 Rep. 87,

(2) A wife may join her husband in either a fine or recovery to convey her own eftate and inheritance, or an estate fettled upon her by her husband as her jointure, or to convey the hufband's estates difcharged of dower, 1 Cru. 99. 2 Cru. 143. Pig. 123. But if a jointress, after her husband's death, levies a fine or fuffers a recovery without the consent of the heir, or the next person entitled to an eftate of inheritance, the fine or recovery is void, and is also a forfeiture of her eftate. 11 Hen. VII. c. 20. Pig. 75.

have five years allowed them to put in their claims after such impediments are removed. Perfons also that have not a prefent, but a future intereft only, as thofe in remainder or reverfion, have five years allowed them to claim in, from the time that such right accrues. And if within that time they neglect to claim, or (by the ftatute 4 Ann. c. 16.) if they do not bring an action to try the right, within one year after making fuch claim, and prosecute the fame with effect, all perfons whatfoever are barred of whatever right they may have, by force of the ftatute of non-claim.

BUT, in order to make a fine of any avail at all, it is neceffary that the parties fhould have fome intereft or estate in the lands to be affected by it. Elfe it were poflible 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 fufferers, but must only remain in ftatu quo: whereas if a tenant for life levies a fine, it is an abfolute forfeiture of his eftate to the remainder-man or reverfioner P, if claimed in proper time. It is not therefore to be fuppofed that fuch tenants will frequently run fo great a hazard; but if they do, and the claim is not duly made within five years after their refpective terms expire, the estate is for ever barred by it. Yet where a ftranger, whofe prefumption cannot be thus punished, officiously interferes in an estate which in no wife belongs to him, his fine is of no effect; and may at any time be set aside (unless by fuch as are parties or privies thereunto) by plead- [ 357 ] ing that "partes finis nihil habuerunt." And, even if a tenant for years, who hath only a chattel intereft, and no freehold in the land, levies a fine, it operates nothing, but is liable to be defeated by the fame plea. Wherefore, when a leffee for years is difpofed to levy a fine, it is ufual for him to make a feoffment firft, to displace the eftate of the reverfioner', and create a new freehold by diffeifin. And thus much

o Co. Litt. 372.
P Ibid. 251,

92 Ley.

52.

r Hob. 334.

5 Rep. 123. Hardr. 401. * Hardr. 402. 2 Lev. 52.

for

for the conveyance or affurance by fine: which not only, like other conveyances, binds the grantor himfelf, and his heirs; but alfo all mankind, whether concerned in the tranffer or no, if they fail to put in their claims within the time allotted by law (3)

IV. THE fourth fpecies of affurance, by matter of record, is a common recovery. Concerning the original of which it was formerly observed", that common recoveries were invented by the ecclefiaftics to elude the ftatutes of mortmain; and afterwards encouraged by the fineffe of the courts of law in 12 Edw. IV. in order to put an end to all fettered inheritances, and bar not only eftates-tail, but also all remainders and reverfions expectant thereon. I am now therefore only to confider, first, the nature of a common recovery; and, fecondly, it's force and effect.

1. AND, first, the nature of it; or what a common recovery is. A common recovery is so far like a fine, that it

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(3) It is not neceffary to be in poffeffion 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 iffue 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 iffue of the perfon to whom the estate was granted in tail; upon which event the remainder-man may enter. If tenantin tail, with an immediate reversion in fce, levies a fine, the base fee merges in the reverfion, which will become liable to all the incumbrances of the ancestors, from whom the estate tail descended; as judgments, recognizances, and fuch leases as are void with refpect to the iffue in tail. 5 T. R. 108. Cru. 274. A recovery fuffered by any tenant in tail lets in all the incumbrances created by himself, which were defeasible by the iffue in tail, and after the recovery they will follow the lands in the hands of a bona fide purchafor. Pig. 120. 2 Cru. 287.

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