« EdellinenJatka »
[ *349 ]
Their use and antiquity.
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 necessary to be actually given; the supposition and acknowledgement 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 (o). 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.
A fine is so called because it puts an end, not only to the 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 (q) 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
which they should be levied, or carried on. follows:
And that is as
[ *350 ]
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 præcipe, called a writ of covenant (v): 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, 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 writ of mesne, of warrantia chartæ, or de consuetudinibus et servitiis. (Finch, L. 278).
(v) See Appendix, No. IV. s. 1. (u) 2 Inst. 511.
(w) Appendix, No. IV. s. 2. In the times of strict feodal jurisdiction, if a
vassal had commenced a suit in the
(x) 5 Rep. 39. 2 Inst. 511. Stat. 32
(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 recognition 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 die after the return of the writ, and the acknowledgment
of the fine, the fine may still be
The note of the fine.
The foot or conclusion.
By these acts all the essential parts of a fine are completed: and, if the cognizor dies the next moment after the fine is acknowledged, provided it be subsequent to the day on which the writ is made returnable (2), still the fine shall be carried on in all its remaining parts: of which the next is,
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 statute 5 Hen. IV. c. 14.
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 acknowledged or levied (b). 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.
(~) Comb. 71.
(a) Appendix, No. IV. s. 4.
(b) Ibid. s. 5.
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. *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 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.
ral kinds of Sur cognizance
de droit, come ceo, &c.
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 "ceo que il ad de son done," or, a fine upon acknowledgment of the right of the cognizee, as that which he hath of 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.
of record; the livery, thus 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 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 manner: "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, "shall go to the cognizee." (f). 3. A fine "sur concessit" 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 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 speeies of fine, sur cognizance de droit, come ceo &c., is the most used, as it conveys a clean and absolute freehold, and (g) West, p. 2, s. 66. (h) Salk. 340.
(c) Moor. 629.
(f) West. Symb. p. 2, s. 95.