motas in Curia domini regis per amicabilem compositionem et finalem concordiam terminari......dicitur talis concordia finalis, eo quod finem imponit negotio adeo ut neuter litigantium ab ea de cetero poterit recedere." The Modus Levandi fines of 1290 recites that a fine solemnly levied concludeth or barreth all parties and privies to the fine and their heirs, and all other persons in the world, being of full age, out of prison, of whole memory and within the four seas the day of the fine levied, unless they make their claim of their action within a year and a day. That these Fines were then well known as means of transferring lands is shown by the fact that the Statute de Donis contains an express provision against them: "Et si finis super hujusmodi tenemento imposterum levetur, ipso jure sit nullus, nec habeant haeredes hujusmodi aut illi ad quos spectat reversio, licet plenae sint aetatis, in Anglia, et extra prisonam, necesse apponere clameum suum.”

The barring of all claims by non-claim within a year and a day was abolished by an Act of 13603, which shortly provided that the plea of non-claim of fines should not be taken for a bar in time to come. This Statute, " whereby" as Coke says "great contention arose, and few men were sure of their possessions," was repealed by an Act of 1483, practically re-enacted by an Act of 1489. This last statute has been treated by Hume and others as a deep device of Henry VII. to obtain free alienation in land by weakening the force of entails. It is sufficient to point out that entails had practically been destroyed by the time of the decision as to common recoveries in 1472, and also that the Statute of Henry VII. only re-enacts the preceding Statute of Richard III., which, as the Act of an usurper, might be taken to require confirmation. And Lord Bacon in his history of the reign discovers no such design in the Act. The two statutes together give all, except parties to the fine, five years in which to claim against it. At the expiration of this period they were barred by non-claim. But heirs in tail or in remainder

1 Gl. vi. 1, 2, 3.

2 18 Edw. I.

3 31 Edw. III. c. 16.

4 1 Rich. III. c. 7. 4 Hen. VII. c. 24. Blackstone, 11. 351. Coke, 11. 518. 6 Butler's note to Co. Litt. 121, a.

might have no right to the estate till the death of the levier of the fine, their ancestor, and he might survive the fine by more than five years, thus barring their claim. The Statute therefore expressly provides that persons whose title did not accrue till after the levying of the fine should have five years from the accrual of their title in which to claim. Thus the Statute instead of destroying Estates Tail seems rather intended to preserve them'. But subsequent provisions of some technicality left it open to doubt whether a fine levied by a tenantin-tail did not really bind his own issue, and in 1528 the judges were divided on this point, three holding that the Statute of 1489 was not a bar to the issue and four that it was. An Act of 1540 resolved this doubt by the provision that fines levied with proclamations according to the Statute should immediately bar the heirs in tail of the tenant levying the fine, without any time being allowed during which they might claim with success. In this Act, however, certain exceptions were contained, notably that the Act should not apply to lands the alienation of which was restrained by Parliament or to entailed lands the reversion of which was in the king. These exceptions left open to consideration the effect, by itself, of the Statute of 1489, and in the reign of Charles II. eight judges against three held that by the Statute of 1489 also a fine levied by a tenant-in-tail barred his issue*.

As the system of Common Recoveries as bars to Estates Tail had been definitely established in 1472, the recognition in 1540 of the efficacy of fines for the same purpose was only of secondary importance. There were however two classes of cases in which the use of a fine instead of a common recovery was advisable. If the tenant-in-tail had also a reversion or remainder in fee, there was no one who need be barred but his privies or heirs, and this could be effected by a fine without the necessity of resorting to a common recovery. Secondly, where a remainderman in tail desired to bar the entail, but the person having the freehold in possession refused to play his part in a common recovery, a fine was the only 1 Barrington, Ancient Statutes, 3rd Murray dem. Derby v. Eyton ed. p. 402. and Price, T. Raym, 260.

2

FINES.

79 method open to the remainderman though it would only bar and bind his own issue.

In the history of the defeat of strict entails, fines, though they developed into a system of great complexity and expense1, are therefore of secondary importance. Their efficiency as devices for barring entails was unintentionally effected by the Statute of 1489, and intentionally confirmed by the Act of 1540. From that time Fines and Recoveries, both fictitious proceedings countenanced by the judges for the purpose of evading the Statute de Donis, grew in complexity, losing in their growth any semblance of reality they had once possessed, till they were swept away in 1833 by the "Act to abolish Fines and Recoveries," which substituted for them a simple deed enrolled. Their only merit was that the judges by their use had been enabled to evade in the interests of the Community a statute passed in the interests of a Class.

1 The Real Property Commissioners give an instance where the amount

payable on levying a fine was £4000.

3 and 4 Will. IV. c. 74.

CHAPTER V.

USES.

As the ingenuity of ecclesiastics and their advisers originated the system of common recoveries, by which ultimately the strictness of entailed estates was broken down, so the conception of Uses, by which the prohibition against Wills of Land was evaded and the secrecy of land-transfer was ensured, was due to clerical endeavours to evade the laws of mortmain. If uses had been common or well-known at the passing of the Statute De Viris Religiosis, they would have been alluded to in some more specific way than "alio quovis modo arte vel ingenio." The ingenuity however which found that common recoveries were not prohibited by the Act discovered also that lands might be conveyed to a third person, or held by the donor himself, to the use of some religious house, or in trust to pay the proceeds to religious purposes with the result of obeying the letter and evading the spirit of the Statute. But just as this use of common recoveries had been prohibited by the Statute of Westminster the Second, so also the evasion of the Statute of Mortmain by means of uses was prohibited by a statute of 1391', which recited that "of late by subtile imagination and by art and engine some religious persons" had evaded the Statute, whereby "men were possessed by feoffment or by other manner to the use of religious people of

1 15 Rich. II. c. 5.

2 This word is oeps i.e. ad opus et usum. It first appears in a Statute of 1383, "Si ascun alien occupie ascun

benefice, soit il a son orps propre, ou al oeps d'autri. 7 Rich. II. c. 12. Digby, 3rd ed. p. 274 note.

EARLY RESTRAINTS ON USES.

81

lands......to amortise' them, whereof the said religious persons take the profits," and enacted that such lands should only be so alienated by the license of the king or lords or else sold "to some other use"" under pain of forfeiture and that "from henceforth no such purchase be made so that such religious and other spiritual persons take thereof the profits." The Statute contains similar provisions as to lay corporations: "and whereas others be possessed or hereafter shall purchase to their use, and they thereof take the profits......it shall be done in like manner as is afore said of people religious."

But though religious alienations by means of uses were thus restrained, the device had been viewed with favour by the laity, and several statutes were passed to meet the different methods in which uses were employed to evade common law liabilities. Thus in 1376 a statute recites that divers people having incurred debts "do give their tenements and chattels to their friends by collusion to have the profits thereof at their will, and after" take sanctuary, "and there do live a great time till the creditors are forced to take a small parcel of their debts and release the remnant," and it is enacted that such gifts if made by collusion shall not protect the goods and chattels from the creditors. In the following year (1377) another statute attacks the practice by which persons unjustly in possession resist the true owners by making feoffments of their lands to Lords and great men, against whom the true owners dare not proceed, and declares that such feoffments made by fraud and maintenance shall be void, and that the persons disseised shall bring actions within a year against those who take the profits of the disseised lands. After the prohibition of uses ecclesiastical, further restraining statutes show that the laity fully appreciated the advantages of the device. Thus a Statute of 1402 extends the remedies of the Statute of 1377 by allowing

1 i.e. alienate in mortmain. This has been interpreted as 8 legislative sanction of uses. I think it only implies the devotion of the land to secular purposes, without

necessarily any double interest.

3 50 Edw. III. c. 6.

4 1 Rich. II. c. 9.

5 To hold to their (the wrongful possessor's) use.