the Week of Proper 26 / Ordinary 31
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Bible Encyclopedias
Fine
1911 Encyclopedia Britannica
or a word which in all its senses goes back to the Lat. finire, to bring to an end (finis). Thus in the common adjectival meanings of elegant, thin, subtle, excellent, reduced in size, &c., it is in origin equivalent to "finished." In the various substantival meanings in law, with which this article deals, the common idea underlying them is an end or final settlement of a matter.
A fine, in the ordinary sense, is a pecuniary penalty inflicted for the less serious offences. Fines are necessarily discretionary as to amount; but a maximum is generally fixed when the penalty is imposed by statute. And it is an old constitutional maxim that fines must not be unreasonable. In Magna Carta, c. III, it is ordained "Liber homo non amercietur pro parvo delicto nisi secundum modum ipsius delicti, et pro magno delicto secundum magnitudinem delicti." The term is also applied to payments made to the lord of a manor on the alienation of land held according to the custom of the manor, to payments made by a lessee on a renewal of a lease, and to other similar payments.
Fine also denotes a fictitious suit at law, which played the part of a conveyance of landed property. "A fine," says Blackstone, "may be described to be an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices, whereby the lands in question become or are acknowledged to be the right of one of the parties. In its original it was founded on an actual suit commenced at law for the recovery of the possession of land or other hereditaments; and the possession thus gained by such composition was found to be so sure and effectual that fictitious actions were and continue to be every day commenced for the sake of obtaining the same security." Freehold estates could thus be transferred from one person to another without the formal delivery of possession which was generally necessary to a feoffment. This is one of the oldest devices of the law. A statute of 18 Edward I. describes it as the most solemn and satisfactory of securities, and gives a reason for its name - "Qui quidem finis sic vocatur, eo quod finis et consummatio omnium placitorum esse debet, et hac de causa providebatur." The action was supposed to be founded on a breach of covenant: the defendant, owning himself in the wrong,' makes overtures of compromise, which are authorized by the licentia concordandi; then followed the concord, or the compromise itself. These, then were the essential parts of the peformance, which became efficient as soon as they were complete; the formal parts were the notes, or abstract of the proceedings, and the foot of the fine, which recited the final agreement. Fines were said to be of four kinds, according to the purpose they had in view, as, for instance, to convey lands in pursuance of a covenant, to grant revisionary interest only, &c. In addition to the formal record of the proceedings, various statutes required other solemnities to be observed, the great object of which was to give publicity to the transaction. Thus by statutes of Richard III. and Henry VII. the fine had to be openly read and proclaimed in court no less than sixteen times. A statute of Elizabeth required a list of fines to be exposed in the court of common pleas and at assizes. The reason for these formalities was the high and important nature of the conveyance, which, according to the act of Edward I. above mentioned, "precludes not only those which are parties and privies to the Hence called cognizor; the other party, the purchaser, is the cognizee. fine and their heirs, but all other persons in the world who are of full age, out of prison, of sound memory, and within the four seas, the day of the fine levied, unless they put in their claim on the foot of the fine within a year and a day." This barring by non-claim was abolished in the reign of Edward III., but restored with an extension of the time to five years in the reign of Henry VII. The effect of this statute, intentional according to Blackstone, unintended and brought about by judicial construction according to others, was that a tenant-in-tail could bar his issue by a fine. A statute of Henry VIII. expressly declares this to be the law. Fines, along with the kindred fiction of recoveries, were abolished by the Fines and Recoveries Act 1833, which substituted a deed enrolled in the court of chancery.
Fines are so generally associated in legal phraseology with recoveries that it may not be inconvenient to describe the latter in the present place. A recovery was employed as a means for evading the strict law of entail. The purchaser or alienee brought an action against the tenant-in-tail, alleging that he had no legal title to the land. The tenant-in-tail brought a third person into court, declaring that he had warranted his title, and praying that he might be ordered to defend the action. This person was called the vouchee, and he, after having appeared to defend the action, takes himself out of the way. Judgment for the lands is given in favour of the plaintiff; and judgment to recover lands of equal value from the vouchee was given to the defendant, the tenant-in-tail. In real action, such lands when recovered would have fallen under the settlement of entail; but in the fictitious recovery the vouchee was a man of straw, and nothing was really recovered from him, while the lands of the tenant-in-tail were effectually conveyed to the successful plaintiff. A recovery differed from a fine, as to form, in being an action carried through to the end, while a fine was settled by compromise, and as to effect, by barring all reversions and remainders in estates tail, while a fine barred the issue only of the tenant. (See also EJECTMENT; PROCLAMATION.)
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Chisholm, Hugh, General Editor. Entry for 'Fine'. 1911 Encyclopedia Britanica. https://www.studylight.org/encyclopedias/eng/bri/f/fine.html. 1910.
