misinformation, or misrecital of former grants; or if his own title to the thing granted be different from what he supposes; or if the grant be informal; or if he grants an estate contrary to the rules of law; in any of these cases the grant is absolutely void.** For instance; if the king grants lands to one and his heirs male, this is merely void: for it shall not be an estatetail, because there want words of procreation, to ascertain the body, out of which the heirs shall issue; neither is it a fee-simple, as in common grants it would be; because it may reasonably be supposed, that the king meant to give no more than an estate-tail:1 the grantee is therefore (if anything) nothing more than tenant at will.m And, to prevent deceits of the king, with regard to the value of the estate granted, it is particularly provided by the statute 1 Hen. IV. c. 6. that no grant of his shall be good, unless, in the grantee's petition for them, express mention be made of the real value of the lands.†

III. We are next to consider a very usual species of assurance, which is also of record; viz. a fine of lands and tenements. In which it will be necessary to explain, 1. The nature of a fine; 2. It's several kinds; and 2. It's force and effect.

1. A fine is sometimes said to be a feoffment of record: though it might with more accuracy be called, an acknowlegement of a feoffment on record. By which is to be understood, that it has at least the same force and effect with a feoffment, in the conveying and assuring of land: though it is one of those methods of

k Freem. 172.

m

1 Finch. 101, 102.

Bro. Abr. tit. Estates. 34. tit. Patents. 104. Dyer. 270. Dav. 45.

n Co. Litt. 50.

- Quoted, 5 Hayw. (Tenn.) 198. Cited, 2 Hen. & M. 339.

+ Cited, 3 Litt. 475. Ref. 4 Bibb, 330.

- Quoted, 66 N. C. 85. Cited, 2 Wend. 203; 19 Am. Dec. 577; 20

Mass. 525, 533; 1 Munf. 173.

transferring estates of freehold by the common law, in which livery of seisin is not necessary [349] to be actually given; the supposition and acknowlegement thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine 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 acknowleged to be, the right of one of the parties. In it's original it was founded on an actual suit, commenced at law for 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.*

4

A fine is so called because it puts an end, not only to the suit thus commenced, but also to all others suits and controversies concerning the same matter.† Or, as it is expressed in an antient record of parliament, 18 Edw. 66 I. non in regno Angliæ providetur, vel est, aliqua securitas major vel solennior, per quam aliquis statum certiorem habere possit, neque ad statum suum verificandum aliquod solennius testimonium producere, quam finem in curia domini regis levatum: qui quidem finis sic vocatur, eo quod finis et consummatio omnium placitorum esse debet, et hac de causa providebatur." Fines indeed are of equal antiquity with the first rudiments of the law itself; are spoken of by Glanvils and Bracton in the reigns of Henry II., and Henry III., as things then well known and long established; and instances have been produced of them even before the Norman invasion. So that the statute 18 Edw. I. called modus

r

r l. 5. t. 5. c. 28.

9

Ninth edition reads, " prior to."

t-t Quoted, 51 Miss. 657. Cited, 5 Denio, 421.

levandi fines, did not give them original, but only declared and regulated the manner in which they should be levied, or carried on. And that is as follows: 1. The party, to whom the land is to be conveyed or assured, commences an action or suit at law against the other, [350] generally an action of covenant, by suing out a writ or præcipe, called a writ of covenant:▾ the foundation of which is a supposed agreement or covenant, that the one shall convey the lands to the other; on the breach of which agreement the action is brought. On this writ there is due to the king, by antient prerogative, a primer fine, or a noble for every five marks of land sued for; that is, one tenth of the annual value." The suit being thus commenced, then follows,

2. The licentia concordandi, or leave to agree the suit." For, as soon as the action is brought, the defendant, knowing himself to be in the wrong, is supposed to make overtures of peace and accommodation to the plaintiff. Who, accepting them, but having, upon suing out the writ, given pledges to prosecute his suit, which he endangers if he now deserts it without licence, he therefore applies to the court for leave to make the matter up. This leave is readily granted, but for it there is also another fine due to the king by his prerogative which is an antient revenue of the crown, and is called the king's silver, or sometimes the post fine, with respect to the primer fine before-mentioned. And it is as much as the primer fine, and half as much more, or ten shillings for every five marks of land; that is, three twentieths of the supposed annual value.

t A fine may also be levied on a writ of mesne, of warrantia chartæ, or de consuetudinibus et servitiis. (Finch. L. 278.)

V See appendix, No. IV. ? 1.

u 2 Inst. 511.

w Append. No. IV. 2. In the times of strict feodal jurisdiction, if a vasal had commenced a suit in the lord's court, he could not abandon it without leave: lest the lord should be deprived of his perquisites for deciding the cause. (Robertson. Cha. V. i 31.)

x 5 Rep. 39. 2 Inst. 511.

Stat. 32 Geo. II. c. 14.

3. Next comes the concord, or agreement itself, after leave obtained from the court; which is usually an acknowlegement from the deforciants (or those who keep the other out of possession) that the lands in question are the right of the complainant. And from this acknowlegement, or recognition of right, the party levying the fine is called the [351] cognizor, and he to whom it is levied the cognizee. This acknowlegement must be made either openly in the court of common pleas, or before 9one of the judges' of that court,* or else before commissioners in the country, empowered by a special authority called a writ of dedimus potestatem; which judges and commissioners are bound by statute 18 Edw. I. st. 4. to take care that the cognizors be of full age, sound memory, and out of prison. If there be any feme-covert among the cognizors, she is privately examined whether she does it willingly and freely, or by compulsion of her husband.t

By these acts all the essential parts of a fine are completed: and, if the cognizor dies the next moment after the fine is acknowleged, provided it be subsequent to the day on which the writ is made returnable, still the fine shall be carried on in all it's remaining parts: of which the next is

4. The note of the fine: which is only an abstract of the writ of covenant, and the concord; naming the parties, the parcels of land, and the agreement. This must be enrolled of record in the proper office, by direction of the statute 5 Hen. IV. c. 14.

5. The fifth part is the foot of the fine, or conclusion

y Append. No. IV. ? 3.

z Comb. 71.

a Append. No. IV. ? 4.

9 Ninth edition reads, "the lord chief justice."

9 Ninth edition inserts, "one of the judges of that court, or two or more."

*Cited, 4 Mason, 55.

+ Cited, 2 Har. & McH. 23; 1 Am. Dec. 371; 29 W. Va. 41; 4 Mason, 51; 4 Dev..515.

of it: which includes the whole matter, reciting the parties, day, year, and place, and before whom it was acknowleged or levied. Of this there are indentures made, or engrossed, at the chirographer's office, and delivered to the cognizor and the cognizee; usually beginning thus, "hæc est finalis concordia, this is the final agreement," and then reciting the whole proceeding at length. And thus the fine is completely levied at common law.

By several statutes still more solemnities are superadded, in order to render the fine more universally public, and less liable to be levied by fraud or covin. And, first, by 27 Edw. I. [352] c. 1. the note of the fine shall be openly read in the court of common pleas, at two several days in one week, and during such reading all pleas shall cease. By 5 Hen. IV. c. 14. and 23 Eliz. c. 3. all the proceedings on fines either at the time of acknowlegement, or previous, or subsequent thereto, shall be enrolled of record in the court of common pleas. By 1 Ric. III. c. 7. confirmed and enforced by 4 Hen. VII. c. 24. the fine, after engrossment, shall be openly read and proclaimed in court sixteen times; viz. four times in the term in which it is made, and four times in each of the three succeeding terms; during which time all pleas shall cease: but this is reduced to once in each term by 31 Eliz. c. 2. and these proclamations are endorsed on the back of the record. It is also en

3

acted by 23 Eliz. c. 3. that the chirographer of fines shall every term write out a table of the fines levied in each county in that term, and shall affix them in some open part of the court of common pleas all the next term: and shall also deliver the contents of such table to the b Ibid. 15.

c Appendix. No. IV. § 6.

3 Third edition only, "common court of"; all other editions as in the text.

9 Ninth edition inserts, "( during which all pleas shall cease)," 9 Ninth edition reads, "which."

2 BLACKST.-46.