In short an actual entry is now necessary [214]only in the single instance of a fine with

proclamations.

Fines with proclamations, are fines at the common law, with the addition only of proclamations made, for the sake of notoriety, in pursuance of several statutes (z).

Two objects are to be attained by the proclamations.

First. To protect, by reason of non-claim on the fine, a defective title from dormant claims.

Secondly. To bar the issue in tail when the fine is levied by tenant in tail.

The general objects for which fines are levied are:

1st. As a conveyance by married women. 2d. As a conveyance by issue in tail. 3d. To gain a title, or confirm one, by non-claim.

First. A married woman cannot convey her freehold, or inheritance, so as to bind herself or her heirs without some assurance of record, as a fine or common recovery: and except in those instances in which a recovery is to be suffered for some other pur

pose,

as to bar an estate-tail with remainder over, &c. a fine is generally levied by the [215]husband and wife, when they are to alien her freehold or inheritance. In no other instance

(x) 4 Hen. VII. c. 24. 32 Hen. VII. c. 36.

is a fine necessary by the common law, merely and simply as a conveyance.

The fine levied for the purpose of being a conveyance, may be either with or without proclamations; for the proclamations are not necessary when the sole object of the fine is to pass the estate of the wife. For the security of the title, and to obtain the protection of the statute of non-claim, it is always advisable to have the fine proclaimed.

The fine is equally necessary, whether the wife has an estate for life only, or an estate of inheritance.

But no fine is necessary when the wife has merely an authority not coupled with an interest, or when a power of appointment is given to a married woman, to be exercised notwithstanding her coverture, or which, from the nature of the power, is to be exercised during the coverture. In Burnaby v. Griffin, (a) Lord Chancellor Loughborough decided, that a woman who had a separate estate, by way of trust, which gave her the equitable ownership of the freehold, was competent to transfer the same without a fine.

Secondly. In consequence of the statute [ 216] de donis, which restrained alienations by

tenant in tail, and declared, "Et si finis super

"ipso jurc sit nullus," tenant in tail was incapacitated from alienating intailed lands, otherwise than by means of a feigned recocovery, till the statutes of 4 Hen. VII. and 32 Hen. VIII. were passed, and enabled him to alien the intailed lands by a fine with proclamations.

The statute of the 4 Hen. VII. which is the statute of non-claim on fines, enacted that, the proclamations so made as therein mentioned, the said fine should be final, and conclude as well privies as strangers, except women covert, other than parties to the said fine, every person then being within the age of twenty-one years, in prison or out of this realm, or not of whole mind at the time of such fine levied, not parties to such fine.

And in the 19 Hen. VIII. (b), the majority of the judges were of opinion, that a fine levied by tenant in tail, according to the statute of Hen. VII., was a good bar to his issue. Some of the judges, however, argued that the issue were not barred by the [ 217 ]fine of their ancestor, not being privy to him, but claiming the estate immediately from the donor per formam doni.

To obviate the doubt entertained of the operation of the statute of 4 Hen. VII., the

(b) Br. Abr. Finel; Dyer, 2. b; 4 Reeves, 334; Harg. Co. Litt. 121 a. n. 1.

statute of 32 Hen. VIII. was passed.-It expressly recites that doubts had arisen respecting the statute 4 Hen. VII. as to barring the issue in tail, and enacts, “That "all and singular fines, as well heretofore "levied as hereafter to be levied with pro“clamations according to the statute, by

any person or persons of full age, of one "and twenty years, of any manors, &c. "before the time of the said fine levied, in

any wise intailed 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, ingrossed, 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, "hereditaments, or any parcel thereof, only by force of such intail, and 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 [218] "of them, any ambiguity, doubt, or con

66

trariety of opinion, risen or grown upon "the said statute to the contrary notwithstanding."

It is clear, under this act, that tenant in

tail of a veşted estate, either in possession, remainder (c), or reversion, may, by a fine with proclamations, alien that estate so as to bind his issue.

So if he has merely a contingent or executory interest in tail, he may, by levying a fine with proclamations, bar his issue in tail, or, according to the nature of the assurance, bind them by estoppel. - So he may bar his issue, though the estate-tail be discontinued, or devested (d), or previously conveyed (e).

In short, the words of this statute are so strong and comprehensive, that the issue in tail can never claim a right to succeed to lands intailed, in opposition to the fine of their ancestor or parent who is within the line of the intail, even though the fine be levied, while the person levying the same [219]has merely a hope, or chance of succession, as is the situation of the issue in tail in the life-time of his ancestor (ƒ).

And even as between collaterals (g), the fine will be a bar, if levied by the

person on whom, or on whose issue, the intail, or the right to the intail, afterwards descends.

(c) Shep. T. 25; 6 Jenk. Cent. 96; Case of Fines, 3 Co. 84. Co. Litt. 372. a.

(d) Zouch v. Bamfield, 3 Co. 90. a.

Jenk. Cent. 275.

Archer's case, 3 Co. 90. a. (e) Goodright v. Mead, 3 Burr. 1703.

(f) Archer's case, 3 Co. 90; Hob. 333.

(g) Co. Litt. 372, Hob. 258.