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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 causá 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 ($). So that the statute 18 Edw. I., called modus levandi fines, did not give them original, but only declared and regulated the manner in () Co. Litt. 120.

(r) L. 5, t. 5, c. 28. (p) 2 Roll. Abr. 13.

(s) Plowd. 369. (2) L. 8, c. 1.

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 sured, commences an action or suit at law against the other,

of levying fines. *generally an action of covenant (t), by suing out a writ or [ *350 ] præcipe, called a writ of covenant(v): the foundation of The precipe. 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, know- concordandi. ing 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 by 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

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 fine.

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

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.

and the ac

clusion.

- hæc

(a) Appendix, No. IV. s. 4.

(3) Comb. 71.

(6) Ibid. s. 5.

By several statutes still more solemnities are superadded, Other requisites in order to render the fine more universally public, and less in the levying of

fines, imposed liable to be levied by fraud or covin. And, first, by 27 Edw. by statute, for

the prevention I. *c. 1, the note of the fine shall be openly read in the court of fraud. of Common Pleas, at two several days in one week, and dur- [ *352 ] ing 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 acknowledgment, 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 (during which all pleas shall cease) sixteen times; viz. four times in the term in which it is made, and four times in each of the three succeeding terms; which is reduced to once in each term by 31 Eliz. c. 2; and these proclamations are indorsed on the back of the record (c). It is also enacted 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 sheriff of every county, who shall, at the next assizes, fix the same in some open place in the court, for the more public notoriety of the fine.

2. Fines, thus levied, are of four kinds : 1. What in our 2. Of the sevelaw French is called a fine “sur cognizance de droit, come

ral kinds of ceo que il ad de son done;" or, a fine upon acknowledg- Sur cognizance ment of the right of the cognizee, as that which he hath of de droit, come the gift of the cognizor (d). This is the best and surest kind of fine; for thereby the deforciant, in order to keep his covenant with the plaintiff, of conveying to him the lands in question, and at the same time to avoid the formality of an actual feoffment and livery, acknowledges in court a former feoffment or gift in possession, to have been made by him to the plaintiff. This fine is therefore said to be a feoffment

(c) Appendix, No. IV. s. 6.
(d) This is that sort, of which an example is given in the Appendix, No. IV.

fines.

ceo, &c.

ner:

of record; the livery, thús acknowledged in court, being equivalent to an actual livery: so that this assurance is rather a confession of a former conveyance, than a conveyance

now originally made; for the deforciant or cognizor ac[ * 353 ] knowledges, *cognoscit, the right to be in the plaintiff, or

cognizee, as that which he hath de son done, of the proper Sur cognizance gift of himself, the cognizor. 2. A fine “sur cognizance de droit tantum. de droit tantum,or upon acknowledgment of the right

merely; not with the circumstance of a preceding gift from the cognizor. This is commonly used to pass a reversionary interest, which is in the cognizor. For of such reversions there can be no feoffment, or donation with livery, supposed; as the possession during the particular estate belongs to a third person (e). It is worded in this man

“ that the cognizor acknowledges the right to be “ in the cognizee; and grants for himself and his heirs,

“ that the reversion, after the particular estate determines, Sur concessit. “shall go to the cognizee.” (f). 3. A fine “sur conces

sit” is where the cognizor, in order to make an end of disputes, though he acknowledges no precedent right, yet grants to the cognizee an estate de novo, usually for life or years, by way of supposed composition. And this may be

done reserving a rent, or the like; for it operates as a new Sur done, grant, grant (g). 4. A fine,sur done, grant, et render," is et render a double fine, comprehending the fine sur cognizance de droit, come ceo &c., and the fine sur concessit: and

may

be used to create particular limitations of estate: whereas the fine sur cognizance de droit, come ceo &c. conveys nothing but an absolute estate, either of inheritance or at least of freehold (h). In this last species of fine, the cognizee, after the right is acknowledged to be in him, grants back again, or renders, to the cognizor, or perhaps to a stranger, some other estate in the premises. But, in general, the first species of fine, sur cognizance de droit, come ceo &c., is the most used, as it conveys a clean and absolute freehold, and (c) Moor. 629.

(g) West, p. 2, s. 66. (f). West. Symb. p. 2, s. 95. (1) Salk. 340.

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