DIRECTOR   Arlena Oatman


What the superiority of a fine in this respect consists of will best appear by stating the chief uses to which it is applied.—One use of a fine is extinguishing dormant titles, by shortening the usual time of limitation. Fines, being agreements concerning lands or tenements solemnly made in the king's courts, were deemed to be of equal notoriety with judgments in writs of right; and therefore the common law allowed them to have the same quality of barring all who should not claim within a year and a day. See Plowd. 357. Hence we may probubly date the origin and frequent use of fines as feigned proceedings. Hut this puissance of a fine was taken away by the 34 E. 3, and this statute continued in force till the 1 R. 3, and 4 H. 7, which revived the ancient law, though with some change, proclamations being required to make fines more notorious, and the time for claiming being enlarged from a year and a day to Jive years. See 34 E. 3. c. 16. 1 R. 3. c. 7. 4 H. 7. c. 24. The force of fines on the rights of strangers being thus regulated, it has been ever since a common practice to levy them merely for better guarding a title against claims, which, under the common statutes of limitation, might subsist, with a right of entry for twenty years, and with a right of action for a much longer time.—Another use or effect of fines is barring estates tail, where the more extensively operative mode by common recovery is either unnecessary or impracticable. The former may be the case when one is tenant in tail with an immediate reversion or remainder in fee; for then none can derive a title to the estate except as his privies or heirs, in which character his fine is an immediate bar to them*, the latter occurs when one has only a remainder in tail, and the person, having the freehold in possession, refuses to make a tenant to the praecipe for a common recovery, which would bar all remainders and reversions; for, under such circumstances, all which the party can do is to bar those claiming under himself by a fine. How this power of a fine over estates tail commenced has been vcxata questio. The statute de donis, after converting fees conditional into estates tail, concludes with protecting them from fines, there being express words for that purpose. But the doubt is, when this protection was withdrawn, whether by the 4 H. 7, or the 32 H. 8. It is a common notion, into which some of our most respectable historians have fallen, that the 4 H. 7, was the statute which first loosened entails; and thus opening the door for a free alienation of landed property has been attributed to the deep policy of the prince then on the throne. See Hume's History, 8vo. ed. v. 3. p. 400. But this is an error proceeding from a strange inattention to the real history of the subject. Common recoveries had been sanctified by a judicial opinion in Taltarum's case, as early as the twelfth of Edward the fourth : and from them it was that entails received their death wound ; for, by this fiction of common recoveries, into the origin of which we mean to scrutinize in some other place, every tenant in tail in possession was enabled to bar entails in the most perfect and absolute manner; whereas fines, even now, being only a partial bar of the issue of the persons who levy them, must in general be an inefficacious mode. In respect to the 4 H. 7, it was scarce more than a repetition of the 1 R. 3, the only object of which indisputably was to repeal the statute made the 34 E. 3, in favour of non-claims, and against them to revive the ancient force of fines, but with some abatement of the rigour in point of time, and other improvements, as we have already hinted ; a provision of the utmost consequence to the security of titles. Accordingly lord Bacon, whose discernment none will question, in his life of Henry the seventh, commends the statute of the 4th of his reign, merely as if aimed at non-claims.