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some grants, which only pass through certain offices, as the admiralty or treasury, in consequence of a a sign manual, without the confirmation of either the signet, the great, or

the privy seal. Mode of con- The manner of granting by the king does not more differ struction observed as to from that by a subject, than the construction of his grants, grants by the

when made. 1. A grant made by the king, at the suit of the king.

grantee, shall be taken most beneficially for the king, and against the party (3): whereas the grant of a subject is construed most strongly against the grantor. Wherefore, it is usual to insert in the king's grants, that they are made, not at the suit of the grantee, but “ ex speciali gratia, certa scientia, et mero motu regis;" and then they have a more liberal construction (). 2. A subject's grant shall be construed to include many things besides what are expressed, if necessary for the operation of the grant. Therefore, in a private grant of the profits of land for one year, free ingress, egress, and regress, to cut and carry away those profits, are also inclusively granted (k): and if a feoffment of land was made by a lord to his villein, this operated as a manumission (1); for he was otherwise unable to hold it. But the king's grant shall not enure to any other intent than that which is precisely expressed in the grant.

As, if he grants land to an alien, it operates nothing; for [ * 348 ] *such grant shall not also enure to make him a denizen, that

so he may be capable of taking by grant (m). 3. When it appears, from the face of the grant, that the king is mistaken, or deceived, either in matter of fact or matter of law, as in case of false suggestion, misinformation, or misrecital of former grants; or if his own title to the thing granted be

(1) Finch, L. 100. 10 Rep. 112.
(k) Co. Litt. 56.
(1) Litt. s. 206.

(m) Bro. Abr. tit. Patent, 62. Finch, L. 110.

(3) See ante, p. 18, note (8) to chap. 2; p. 22, with notes (6) and (8) to chap. 3.

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 (k). For instance, if the king grants lands to one and his heirs male, this is merely void: for it shall not be an estate-tail, 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 (l): the grantee is therefore (if any thing) 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 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 assur- III. Fines of ance, which is also of record, viz. a fine of lands and tene- lands and tenements. In which it will be necessary to explain, 1. The nature of a fine; 2. Its several kinds; and 3. Its force and effect (4).

1. A fine is sometimes said to be a feoffment of record (n): 1. Of the nature though it might with more accuracy be called an acknow- of fines. ledgment of a feoffment on record. By which is to be understood, that it has at least the same force and effect with




(k) Freem. 172.
(1) Finch, 101, 102.
(m) Bro. Abr. tit. Estates, 34. Tit.

Patents, 104. Dyer, 270. Dav. 45.

(n) Co. Litt. 50.

(4) Our author's explanation is too commissioners of inquiry into the law complete and precise to need annota- of real property; and there can be little tion; more particularly as there is cause to fear that they will recommend reason to hope that much of the tech the legislature pertinaciously to adhere nicality, which now clogs every assur- to forms, of which the basis is the juance by fine, will be got rid of; and dicial record of a falsehood, and the dea simpler mode of effecting the same tails are, many of them, ridiculous, tepurposes will be adopted. The ques. dious, expensive, and liable to fatal tion is under the consideration of the mistakes.

a feoffment, in the conveying and assuring of lands: though it is one of those methods of transferring estates of freehold

by the common law, in which livery of seisin is not necessa[ *349 ] ry *to be actually given; the supposition and acknowledge

ment 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 acknowledged to be, the right of one of the parties (0). In its 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. Their use and A fine is so called because it puts an end, not only to the antiquity.

suit thus commenced, but also to all other suits and controversies concerning the same matter. Or, as it is expressed in an antient record of Parliament (p), 18 Edw. 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 Glanvil (9) and Bracton (r) 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 prior to the Norman invasion (s). So that the statute 18 Edw. I., called modus levandi fines, did not give them original, but only declared and regulated the manner in


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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 as- of the manner

of levying fines. sured, commences an action or suit at law against the other, *generally an action of covenant (t), by suing out a writ or [ *350 ] præcipe, called a writ of covenant (v): the foundation of The præcipe. 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, onetenth of the annual value (u). The suit being thus commenced, then follows,

2. The licentia concordandi, or leave to agree the suit(w). The licentia 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, threetwentieths of the supposed annual value (x).

3. Next comes the concord, or agreement itself (y), after the concord. leave obtained from the court: which is usually an acknow

(t) A fine may also be levied on a vassal had commenced a suit in the writ of mesne, of warrantia charte, or lord's court, he could not abandon it de consuetudinibus et servitiis. (Finch, without leave; lest the lord should be L. 278).

deprived of his perquisites for deciding (v) See Appendix, No. IV. s. 1. the cause. (Robertson's Cha. V. i. 31). (u) 2 Inst. 511.

(x) 5 Rep. 39. 2 Inst. 511. Stat. 32 (w) Appendix, No. IV. s. 2. In the Geo. II. c. 14. times of strict feodal jurisdiction, if a (y) Appendix, No. IV. s. 3.

ledgment 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 acknowledgment, or re

cognition of right, the party levying the fine is called the [ *351 ] *cognizor, and he to whom it is levied, the cognizee. This

acknowledgment must be made either openly in the court of Common Pleas, or before the lord chief justice of that court, or else before one of the judges of that court, or two or more 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 hy compulsion of her

husband. If the cognizor By these acts all the essential parts of a fine are completdie after the return of the writ, ed: and, if the cognizor dies the next moment after the and the ac- fine is acknowledged, provided it be subsequent to the day knowledgment of the fine, the on which the writ is made returnable(z), still the fine shall fine may still be be carried on in all its remaining parts: of which the next is, completed. The note of the 4. The note of the fine (a); 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 sta

tute 5 Hen. IV. c. 14. The foot or con- 5. The fifth part is the foot of the fine, or conclusion of clusion.

it: which includes the whole matter, reciting the parties,
day, year, and place, and before whom it was acknowledg-
ed or levied (6). Of this there are indentures made, or
engrossed, at the chirographer's office, and delivered to the
cognizor and the cognizee; usually beginning thus,
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.


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(6) Ibid. s. 5.

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