TITLE XXXV. FINE. CHAP. IX. Effect of Fines by the Statutes 1 Rich. III. 4 Hen. VII. and 32 Hen. VIII. in barring Estates Tail. 2. Of the Statute 1 Rich. III. 3. Of the Statute 4 Hen. VII. 8. Of the Statute 32 Hen. VIII. 9. Effect of these Statutes in barring Estates Tail. 26. The Tenant in Tail need not be in Possession. 34. A Possibility of an Estate Tail sometimes barrable. 40. An Estate Tail in a Rent Charge is barrable. 42. And in an Advowson. 43. And in a Trust Estate. 44. A Fine bars the Issue in Tail 48. A Fine does not bar Remain- 49. But lets in the Reversion. 52. Exceptions in these Statutes. SECTION 1. IT has been a constant remark of those who have had occasion to trace the history of our English jurisprudence, that whenever a material alteration has been made in the common law, the inconveniences arising from such change have been much greater than those which were intended to be remedied. 1 Rich. III. 2. This observation was perhaps more fully exem- of the plified by the consequences which attended the statute Statute of non-claim, than by any other innovation which has been attempted in the common law. On this subject it is difficult to add any thing to Lord Coke's 2 Inst. 518. expression-" Great contentions arose, and few men were sure of their possessions." And it is astonishing that the legislature should suffer a grievance which must have been so universally felt, to continue so long; for the common law respecting non-claim was not revived till the first year of the reign of Rich. III., who seems to have endeavoured to palliate his cruelties, and the usurpation of the Crown, by the many excellent laws which he immediately enacted; one of those was the stat. 1 Rich. III. c. 7., by which the common law was restored, and the doctrine of non-claim revived. Of the Statute 3. This act was soon followed by the stat. 4 Hen. 4 Hen. VII. VII.,; and as in this last law all the clauses in 1 Rich. III. are copied almost verbatim, and some additional matters are subjoined, the statute 1 Rich. III. is now become obsolete; and the effect of fines depends almost entirely, at this day, on the stat. 4 Hen. VII., for which reason it will be necessary to examine it at large. c. 2. § 78. 4. This act, after reciting the last clause in the statute De finibus levatis, proceeds thus:-" The King our Sovereign Lord considereth that fines ought to be of the greatest strength, to avoid strifes and debates, and to be a final end and conclusion; and of such effect were taken, afore a statute made of non-claim, and now is used to the contrary, to the universal trouble of the King's subjects; will therefore it be ordained, &c." The first section, which directs the proclamations to be made, has been already stated. 5. The second section of the act is in these words: "And the said proclamations so had and made, the said fine to be a final end, and conclude as well privies as strangers to the same; except women covert, other than be parties to the said fine, and every person then being within age of twenty-one years, in prison, or out of this realm, or not of whole mind, at the time of the said fine levied, not parties to such fine." 6. We have seen that by the common law a fine ante, e. 8. levied of an estate tail only operated as a discon§ 4. tinuance of it, and did not bar the issue from bringing their formedon. But in consequence of some ambiguous expressions in this statute, it was supposed to enable tenants in tail to bar their issue by fine: estates tail had however continued so long, and were so much favoured by the nobility, on account of their not being forfeitable for treason, that the Judges were extremely cautious of putting so extensive a construction on it, especially as the statute De donis conditionalibus had expressly declared that a fine levied of an estate tail should be void. 7. A case however arose in 19 Hen. VIII. in Bro. Ab. tit. which this point came in question, before all the Fine, pl. 1. Judges in Serjeants' Inn. A tenant in tail levied a 1 Inst. 121 a. Dyer, 3 a. fine, and five years passed in his lifetime; upon his n. 1. death a question arose, whether his issue should be barred by the fine. Englefield, Shelley, and Coningsby contended that the issue was not barred, because he was neither privy nor party to the fine; for he claimed the land from the donor, and not from the donee, although he must convey himself to the land by the father. On the other side, Fitzjames, Brudenell, Fitzherbert, Brooke, and Moore were of opinion that the issue was barred; for the intention of the makers of the statute was, that a fine should be a final end, and conclude as well privies as strangers; and that the third saving only extended to strangers, and not to privies. Of the Statute c. 36. 8. This determination appears not to have been 32Hen. VIII. entirely approved of; for in 32 Hen. VIII. a statute was made, reciting that doubts had arisen respecting the validity of the statute 4 Hen. VII. in barring the issue in tail, and enacting, (§ 1.) " that all and singular fines, as well heretofore levied as hereafter to be levied, with proclamations according to the statute, by any person or persons of full age of one and twenty years, of any manors, lands, tenements, or hereditaments before the time of the said fine levied in anywise entailed to the person or persons so levying the said fine, or to any of the ancestors of the same person or persons, in possession, reversion, remainder, or in use, shall be, immediately after the same fine levied, engrossed, and proclamations made, adjudged, accepted, deemed, and taken, to all intents and purposes, a sufficient bar and discharge for ever against the said person and persons and their heirs, claiming the said lands, tenements, and hereditaments, or any parcel thereof, only by force of such entail; against all other persons claiming the same, or any parcel thereof, only to their use, or to the use of any manner of heir of the bodies of them; any ambiguity, doubt, or contrariety of opinion arisen or grown upon the said statute to the contrary notwithstanding." Bffect of these Statutes in barring Estates Tail. and 9. The statute of 32 Hen. VIII. having been professedly made for the purpose of explaining the statute 4 Hen. VII., they must be considered as forming one law. The doctrine established by them is, that a fine with proclamations shall bar all privies and strangers; and when levied of any manors, lands, tenements, or hereditaments entailed to the person levying such fine, or to any of his ancestors, shall bar the said persons and their heirs, whether lineal or collateral, claiming by force of such entail. 10. The term by which the issue in tail are descri- 1 Inst. 271 a. bed in the statute 4 Hen. VII. is that of privy, which 8 Rep. 42 b. has various significations in law. It sometimes means that connexion which arises between persons who have entered into a mutual contract with each other, as between donor and donee, lessor and lessee; or else it signifies a relationship of blood, as between ancestor and heir. But in consequence of the stat. 32 Hen. VIII. it has been determined, that by the word privies in the stat. 4 Hen. VII. are meant those persons who are not only privies in blood to the persons who levy the fine, but also privies in estate and title to the land whereof the fine is levied; that is, those who must necessarily convey their descent through the cognizor, before they can make out their title to the estate; which comprehends the issue in tail: and a person who is privy Touch. 21. within the intention of the stat. 4 Hen. VII. is an heir in tail within the intention of the stat. 32 Hen. VIII., et sic è converso. 11. Thus if a tenant in tail in possession levies a fine with proclamations, it will be an effectual bar to all his issue; for they are privy to him both in blood and estate, and can only make a title to the estate tail as his sons. Case, Cro Car. 476. 12. Husband and wife being tenants in special Beaumont's tail, by gift after their marriage, the husband alone 9 Rep. 138. levied a fine; the wife survived. It was determined S. C. in 18 Eliz. and also in 10 Ja. I. that the fine was a Baker v. good bar to all their issue: for in making out their Willis. title they must necessarily show themselves to be heirs to the father, as well as to the mother; and |