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; (j) 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 made 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, 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. 16

It seems to have been the intention of that politic prince, king Henry 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 will

always accompany property. But doubts having arisen whether [355] 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 ancestors, 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 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 parties who levy the fine, and claim under them by any right of blood or other right of 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 continual claim, 2 Inst. 518. The second is not now in force under the statute of Henry VII. k 2 Inst. 518. 1 4 Hen. VII. c. 24. See page 118. m See statute 11 Hen. VII. c. 20.

j Litt. § 441.

(16) This is the chief use and excellence of a fine, that it confirms and secures a suspicious ti tle, and puts an end to all litigation after five years. Other conveyances and assurances admit an entry to be made upou 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. Christian (17) Mr. Hargrave shews that this is not the only reason, ante 351. note 9.

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 under any conveyance made by him subsequent to the fine so levied. (n)

Strangers to a fine are all other persons in the world, except only [356] 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 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 non-claim. 18

But, in order to make a fine of any avail at all, it is necessary that the parties should have some interest or estate in the lands to be affected by it. Else it were possible that two strangers, by a mere confederacy, might without any risk 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 forfei

(18) If the right devolve on an infant or other person under disability, it is sufficient that he enter within five years after his disabilities are removed. Stat. 7 Hen. IV. c. 24. s. 5. But if there are several disabilities existing in the same person, at one and the same time, Plowd. 375.; or there are several disabilities arising at different periods, and one of them succeeds the other without any interval (as is the case of infancy and imprisonment, or infancy and marriage, Cro. Jac. 200. and consequently, coverture during infancy), the fine will not run while any one of these disabilities continues. Or if there be a succession of disabilities in distinct persous, having successive rights, under the same estate, as in the case of an ancestor and heir, the fine will not run against the ancestor or the heir while any disability continues. But though the fine never began to run against the ancestor, by reason of his death, while labouring under some disability, it may, notwithstanding the doubt forinerly entertained on this point, Cotton's Case, 2 Inst. 519. 1 Lev. 211., begin to run against the heir if adult, &c.; at all events, from the time at which his disabilities, if any, cease. 2 H. Black. 584.

Whenever a fine begins to run against a person, it will continue to run against him; and in case of estates of inheritance, either in fee, or in tail, &c. against his heirs; and in case of chattel interests, &c. against his executors, &c. notwithstanding any subsequent disability. 4 T. Rep. 301. Plowd. 356. And therefore if the five years commence against a person who is adult, &c. they will continue to run against that person, though he becomes imprisoned, insane, &c. And though he dies either free from any disability, or under a disability, leaving for his heir, issue, or personal representative, a person who is either an infant under coverture, insane, or imprisoned, or though he dies intestate, and no letters of administration are taken, the five years non-claim will continue to run. 1 Prest. on Conv: 241, 2 See further upon the entry to avoid a fine, Adams on Ejectment, 83 to 94. Saund. 319. n. b. 2 Saund. index, tit. Fine; and 1 Preston on Conv. 200. et seq.

If a lessee for life or years levies a fine, the lessor shall have five years after the death of the tenant for life, Cro Eliz. 254.; or after the term expires, though he may enter to avoid the fine within the five years after the last proclamation. Whaley v. Tancred, Vent, 241. See also 3 Co. 78. b. Or if A. have two distinct estates in the same land, as an estate for life, with a re. mote estate of inheritance, he may enter to avoid the fine when the latter gives him a right to the possession, although the time has elapsed within which he might claim the former. See 1 Prest. Conv. 240. Shep. Touch. 34. Chitty.

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83

ture 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 be thus punished, officiously interferes in an estate which in nowise belongs

to him, his fine is of no effect; and may at any time be set aside [357] (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 chattle 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 feoffment first, to displace the estate of the reversioner, (†) and create a new freehold by disseisin. 19 And thus much for the conver ance 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. 20

:

p Co. Litt, 251.

q 2 Lev. 52.

r Hob. 334.
t Hardr. 402. 2 Lev. 52.

$5 Rep. 128. Hardı. 401.

(19) Mr. Preston observes, 1 vol. on Convey. 304.: "Let it be remembered that a fine of a tenant for years, a copyholder, or owner of any chattel interest, has not any operation on the freehold. Unless the freehold be acquired by means of a feoffment, no estate will be devested. Any attempt to set up the fine as a bar, may be answered by the plea of partes finis nihil habuerunt." Hard. 400. 3 Co. 77. 18 Vin. 413. See further, 2 Sch. & Lef. 99. From 1 Saund. 319. g. it appears, that any attempt by a termor to acquire a freehold by means of a feoffment, a forfeiture of his term; and see 12 East, 444. Where a mere tenant for years levies a fine with proclamations, it should seem no entry to avoid the fine is necessary. Adams on Ejectment, 88, 9. So a person coming to a title which is bound by an equitable right, cannot by levying a fine discharge his estate from the consequences of that right. 1 Sch. & Lef. 330. In the case of Lord Portsmouth v. Vincent (cited in Lord Pomfret v. Lord Windsor), 2 Ves. 476. tenants at will in possession under a letting by a receiver in the court of chancery, were by the neglect of the parties in the cause, suffered to remain in possession for a great number of years, and not called on for their rent; they levied fines, and insisted on them as a bar; but lord Hardwicke said, "No, you gained possession as tenants under the receiver of the court; you gained that possession therefore in confidence, and you shall not by means of that possession defeat the title of the persons for whom you had the possession;" and he would not suffer the fine and non-claim to be a bar. 1 Sch & Lef. 380. So where there was tenant for life, remainder to R. P. in fee, and the tenant for life leased for her life, and died in 1799, and lessee continued in possession without paying rent till his death in 1815, when his son took possession, and continued without paying rent, and in 1817 levied a fine with proclamations, it was held, that the heir of R. P., the remainderman, might maintain an ejectment against the son, without an actual entry to avoid the fine, or a notice to determine the tenancy. 3 M. & S. 271. Chitty.

(20) 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 remainderman may enter. Mashell v. Clarke, 2 Lord Raym. 778. Doe v. Whitehead, 3 Burr. 704. Doe v. Rivers, 7 T. R. 276. Doe v. Wichelo, 8 T R. 211. If tenant in tail, with an immediate reversion in fee, levies a fine, the base fee merges in the reversion, and he thus gains a fee-simple, which will become liable to all the incumbrances of the ancestors, from whom the estate-tail descended; as judgments, recognizances, and such leases as are void with respect to the issue in tail. This has frequently happened in practice, from such a person being ill advised to levy a fine, instead of suffering a recovery. 5 T. R. 108. 1 Cru. 274. A recovery suffered by any tenant in tail lets in all the incumbrances 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 bona fide purchaser. Pig. 120. 2 Cru. 287.-Mr. Christian's note.

The following part of this note consists principally of the more recent decisions respecting fines:

Fines when and how Passed.-No fine which appears to have been acknowledged more than twelve months, can pass the king's silver office, without a rule of court on motion to the court in term time, or if in vacation, to a judge at chambers. In such case, if the conusors be living, an

IV. The fourth species of assurance, by matter of record, is a common recovery. Concerning the original of which it was formerly observed, (u)

u pag. 117. 271.

(21) See in general, Com. Dig. Recovery; Bac. Ab. Fines and Recoveries; 1 Prest. on Conv. 1 vol. 1 to 200.; Cru. Dig. index, Recovery; Cruise on Fines and Recoveries; Fearne's Con. Rem.; Vin. Ab. Recovery; 5 T. R. 107. n. ; 2 Saund. 42. n. 7. and id. index, tit Recovery; and as to pleading a recovery, see 2 Chitty on Pleadings, 4 ed. 582 to 586. where the nature and operation of common recoveries is stated and explained.

affidavit must be made thereof; if dead, the time of their death must be stated. Reg. Gen. C. P. 1 B. & P. 530. All fines are to be left at the chirographer's office within fourteen days after passing the king's silver office, on pain of contempt. Reg. Gen. C. P. 4 Taunt. 600. A fine may pass as to all the conusors except one, who may be omitted on motion. 5 Taunt. 249. Any number of persons having separate interests in one tenement, may concur to pass their interests to any number of purchasers by one fine. 5 Taunt. 265. The court of C. P. will allow a fine concessit for conveying a life estate, and a fine sur cognizance de droit tantum for conveying a reversionary interest in the same premises, to pass as one and the same fine. 1 Marsh. 422. 6 Taunt. 21. S. C. If under a dedimus potestatem to take the acknowledgment of nine persons, six be taken on one piece of parchment, and three on another, the court will not allow the fine to pass. 3 B. & P. 366. So if there be two præcipes to a fine, and the premises be described in the one as manors, tithes, and tenements, and in the other as tenements only. 3 Moore, 216. A fine in Scotland was permitted to be acknowledged before persons who were not writers to the signet, no writers to the signet residing within one hundred miles, and the parties being una. ble to travel. 7 Taunt, 696. The court of C. P. will not suspend the granting the fiat on an affidavit that the deforciant was nearly one hundred years of age, and of imbecile mind, 1 Bingh. 73.; as it was not sworn that she was so when the acknowledgment was taken, and as, if she died during the suspension, it would have the effect of avoiding the fine altogether. 7 Moore, 373. The clerk of the warrants may refuse to pass a fine until the attorney employed by the parties has paid the amount of his termage fees. i Bingh. 277.

As to the loss of Documents-The præcipe and concord of a fine being lost, the court of C. P. permitted them to be supplied from the copy thereof, left with the clerk of the chief justice, signed by the parties, and the fine to be perfected. 6 Taunt. 231. 1 Marsh. 553. S. C. So the concord of a fine being lost before it had passed the custos brevium office, a new concord and acknowledgment were allowed, and the fine perfected. 4 Taunt. 195.

As to delay. If an attorney employed to levy a fine, mislays the papers, and does not complete it within the time required by the rule of court, (see 4 Taunt 600.) the court will not permit the fine to be perfected, 4 Taunt. 601. 5 ib. 305.; but will, if all the parties be alive, direct a new fine to be levied at the expense of the attorney 4 ib. 601. But if the papers are mislaid by a clerk who has absconded, the court will allow the fine to be perfected, although the time be exceeded. 1 Moore, 125. So, where the fine ought to have been perfected six years since, on an affidavit that the delay was owing to the negligence of the agent in London, with whom the instruments had been deposited. 2 Moore, 174. 8 Taunt. 438. So, though the fine was more than a twelvemonth old, without any special reason assigned. 8 Taunt. 75. So, where the delay was occasioned by one of the vouchers in a recovery going abroad for the benefit of his health. 5 Moore, 557. But a fine four years old was not suffered to pass, although the parties were all alive, there being no affidavit explaining the delay. 8 Taunt. 442. But if the documents be mislaid in the cursitor's office, though one of the conusors be dead, the fine will be allowed to pass on affidavit stating the time of the death. 6 Moore, 315. But where a delay of two years took place by the negligence of the attorney, after the documents were perfected, and the name of one of the cominissioners before whom the fine was acknowledged was obliterated, the fine was not permitted to pass. 7 Moore, 338.

As to the Acknowledgment of fines abroad.—The affidavit of taking the acknowledgment must be engrossed on parchment. 4 Moore, 162. 1 Bro. & B. 472. If a schedule be referred to on the back of the dedimus, as being annexed, such schedule must be signed by the commissioners. 4 Moore, 295. If the Christian name of one of the parties be written on an erasure, it will not be permitted to pass. 2 Moore, 375. So, if the caption be stated to have been taken before A. and B., and the affidavit of such caption states that it was before A. & C. 6 Moore, 517. They inust be authenticated by a notary public, whose certificate must be on parchment, and under seal; and a defect in this particular cannot be obviated by proof of the hand-writing of the conusors, 1 Taunt. 144.; and a literal translation of it on parchment must also be produced. 6 Moore, 232. But if the foreign notary demands an extortionate remuneration, his certificate will be dispensed with, on affidavit of the circumstances, 2 ib. 313.; and in such case, if attested by two English magistrates there, the fine will be allowed to pass. 2 N. R. 57. But where there was an erasure, though of an impossible date only, the acknowledgment being taken before a magistrate in India, and there being no affidavit authenticating his signature, the fine was not permitted to pass. 2 Bingh. 361.

Under what circumstances a fine, &c. may be Amended.-A fine may be amended by insertion of part of the conusor's christian name, to which he did not know he was entitled at the time the fiue passed. 8 Taunt. 20. So, where tithes were described as arising out of a rectory, by des

that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain; and afterwards encouraged by the finesse of the

cribing them as arising out of a borough and parish, in conformity with the deed to lead the uses, 4 Moore, 170. 8 ib. 335. ; but there must be an affidavit, connecting the fine with the deed. 6 Taunt. 432. So, by increasing the number of acres in one-third part of an estate, if correct fiues had been levied of the other two-thirds. 8 Taunt. 74. So, as to the name of the parish of Manfield for Mansfield, the deed containing the general words. 6 Moore, 520. So, where a double operation is included in a fine, by striking out one. 5 Taunt. 631. But the term of a fine is not amendable. 2 Blk. 778 Nor will a fine be amended in the surnames of the deforciants, unless no one could have been misled by the use of the wrong name. 2 B. & P. 455. And it may be taken as a general rule that amendments will be allowed, where no deceit or misapprehension can have arisen from the error, either as to the parties, or the property. See in addition to the cases above cited, as to mistakes in the Writ of Entry, 1 B. & P. 137. 3 B. &. P. 362.; the Concord, 1 Marsh. 406. 6 Taunt. 1. the Warrant of Attorney, 6 Taunt. 373. 7 ib. 434. 1 Moore, 130; the Parties, 2 Blk. 816. 1230. 4 Taunt. 98. 195. 226. 5 Taunt. 73. 207. 1 Marsh. 578. 1 Moore, 125.; the Property, 2 Blk. 1202. 2 B. & P. 573. 580. n. 4 Taunt. 734. 7 ib. 352. 8 ib. 74.; the Parish, 2 Blk. 1065. 3 Taunt, 336. 5 Taunt. 2. 303, 624. 6 ib. 145. 7 ib. 79. 177. 4 Moore, 171. 2 Bingh. 93. 386.; the County, 3 Taunt. 418. 4 ib. 885. The return of the writ of covenant in a fine was refused to be amended, the deed to lead the uses being colourable, and the fine taken from a dying woman. 2 Blk. 1013 The deed to authorize the amendment of a recovery shall be read aloud by a serjeant, or by the officer of the court, not by the attorney for the amendment. 5 Taunt. 579. No motion can be made at the bar of C. P. on the last day of any term touching the amendment, or passing of any fine or recovery, or any of the proceedings therein. Reg. Gen. 4 Moore, 113, 320. 2 Bro. & Bing. 122. See 6 Taunt. 652. 856. 2 Marsh. 328. And on motion to amend a fine, an affidavit must be produced, stating that the possession had followed such instrument since it was levied. 6 Moore, 259.

By Whom and How levied, &c.—A fine levied by a copyholder, who continues in possession, is void as against the lord. 3 T. R. 162. fine will not be permitted to be levied in which it appears that the conusor is an alien enemy. Taunt. 146. By feme-covert.-A rent-charge, pay. able to a feme-covert, was sold with the consent of her husband, who received the money, and they both executed the deed of conveyance; the court of C. P. would not interfere to authenticate a fine levied by her, without her husband, although he was separated from her, and she knew not where to find him, 2 Moore, 652. 1 Taunt. 37.; but the court will not prevent the wife levying the fine because the husband has since become non compos. 1 N. B. 312. Where husband and wife granted to trustees an estate of which her father was seised in fee-simple, and then levied a fine to the uses of the settlement, and afterwards the father died, leaving the wife one of the co-heiresses; held that her moiety became subject to the uses of that settlement, by reason of the fine, as an estoppel against the husband and wife, and all claiming under them. 2 B. & A. 242. If a married woman levy a fine, unless jointly with her husband, it is afterwards voidable by the husband, or even by herself or her heirs, see Sid. 122; unless his concurrence cannot be obtained, as where after selling the estate, and executing the conveyance, he becomes insane. Stead. v. Izard, 1 Bos. & Pul. N. R. 312. Or a fine may be acknowledged de bene esse, by a feme-covert, where her husband, having previously assented, is at the time out of the kingdom. 2 Bla. Rep. 1205. But if a jointress, after her husband's death, levies a fine, or suffers a recovery, without the consent of the heir, or the person next entitled to an estate of inheritance, the fine or recovery is void, and is also a forfeiture of her estate. 11 Hen. VII. c. 20. Pig. 75. confirmed by 32 Hen. VIII. c. 36. s. 2. By disseisor.-A fine levied with proclamations is a bar to ejectment, where there has been no actual entry within five years by the lessor of the plaintiff. 1 Carr. R. 91. 2 H. Bla. 584. But where a second son, living with his father at the time of his death, and being in possession, levied a fine with proclamations; held that the eldest son need not make an actual entry to avoid such fine. 1 Carrington R. 130.

Ambiguity-Apparent avoids the fine,-latent may be explained by evidence; as where twelve messuages were comprehended in a fine, the conusor having seventeen in the same parish, any of which would have passed, parol evidence was held admissible, in an ejectment, to shew which of the messuages were intended to pass by the fine. 1 Ry. & M. N. P. 88. I Carr. 284. S. C. But a fine of all and whatsoever the said A. hath in the tenements," is bad; nor can a fine sur concessit, and one sur conusance de droit, be combined in the same fine. 2 Taunt. 198. As to Entry and Non-claim.-The fine of a tenant for life devests the estate of the remainder-man or reversioner, leaving in him only a right of entry, to be exercised then by reason of the forfeiture, or within five years after the natural determination of the preceding estate. And the effect of the 4 Hen. VII. c. 24. is only to save toall the remainder-men their respective rights of entry within five years after their titles accrue, no one to be prejudiced by the laches of his predecessor. 8 East R. 552. But where A., tenant for life, with remainder to his own executors for forty years, remainder to B. in fee, levied a fine, &c. and B. without entering devised to C. for life, with remainder to D. in tail, and died, and A. afterwards died, C. did not enter within five years after the expiration of the forty years, it was holden that D. was barred, and could not enter within five years after the death of C., 1 Taunt. 578. Where the estate continues in the possession of the mortgagor, and afterwards in his son and heir, who conveys the same in fee, and the feoffee levies a fine with proclamations, yet the heir of the mortgagee may recover in ejectment, if the mortgage money be not paid, although there has been no entry within five yearst