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Fourthly. the note of the fine.

4. The note of the fine;c 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.

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

which includes the whole matter, reciting the parties, day, the fine.

year, and place, and before whom it was acknowledged or levied.d 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., c. 1, [ 352] the note of the fine shall be openly read in the Court of Com

mon 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 Sixthly, enrolled of record in the Court of Common Pleas, by 1 Ric. III., tion, record, c. 7, confirmed and enforced by 4 Hen. VII., c. 24, the fine, aftand publica- er 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 endorsed on the back of the record.e' 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 c Appendix, No. IV., 4.

d Ibid., Ø 5.

• Ibid., ý 6.

proclama

(8) The fine mentioned only the par. Saund., Index, tit. Fines. Fines were ish, vill, or township in which the lands effectual as conveyances, without procare situate, and the quantity and quali- lamations; but, without that ceremony, ty of the lands, as “ so many acres of did not operate to bar issue, nor gain pasture, so many houses," &c.; and, any title by non-claim; therefore, fines for further particularity, a deed, refer- levied in courts of ancient demesne, ring to the fine, was always necessary. and such other courts as have not the (2 Vent., 32; 1 Taunt., 284.) As there power of making proclamations, were was a separate writ for each county, an good a conveyances only, for no fine estate lying in two counties required but a fine with proclamations is within two fines. (1 Taunt., 538.)

the statute 4 Hen. VII., which enacts

that a fine with proclamations shall bar (9) As to the utility of proclama- an estate-tail. (1 Salk., 339 ; 1 Saund., tions, see 1 Prest., 214, et seq. ; 2 258, a, note 8.)-[Chitty.]

Assizes, fix the same in some open place in the court, for the more public notoriety of the fine.

kinds of

2. Fine tan

2. Fines, thus levied, are of four kinds :10 1. What in our 2. Several law French is called a fine “sur cognizance de droit, come ceo fines. que il ad de son done;" or, a fine upon acknowledgment of the 1. Fine come right of the cognizee, as that which he hath of the gift of the ceo. cognizor. 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 have been a feoffment 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 de- [ 353] forciant or cognizor acknowledges, cognoscit, the right to be in the plaintiff, or cognizee, as that which he hath de son done, of the proper gift of himself, the cognizor. 2. A fine “

sur cognizance de droit tantum," or, upon acknowledgment of the right tum. 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.8 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.”h 3. A fine“

sur

3. Fine sur

concessit. 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 grant.i" 4. A 4. Fine sar fine “sur done, grant, et render," is a double fine, comprehend- et render. ing 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.j In this last species of fine, the

[ This is that sort of which an exam- h West. Symb., page 2, Ø 95. ple is given in the Appendix, No. IV. i West., page 2, \ 66. 6 Moor., 629.

j Salk., 340.

(10) See 1 Prest. on Conv., 201. mainders or reversions. The fine sur

concessit was sometimes used to pass a (11) The fine come ceo was most fee-simple, but more generally to creproperly used for the transfer of estates ate an estate for life or years, and was of fee-simple in possession; but it was thought more capable of a restricted often employed to operate upon re- operation than the other species of fine.

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 gives the cognizee a seizin in law, without any actual livery; and is therefore called a fine executed, whereas the others are but executory.

3. Force

c. 16

3. We are next to consider the force and effect of a fine. and effect of These principally depend, at this day, on the common law, and

the two statutes, 4 Hen. VII., c. 24, and 32 Hen. VIII., c. 36. 354] The ancient common law, with respect to this point, is very

forcibly declared by the statute 18 Edw. I., in these words: “* And the reason why such solemnity is required in the passing of a fine is this, because the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it precludes not only those which are parties and privies to the 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 footk of the fine within a year and a day.” But this Bar by non. doctrine, of barring the right by non-claim, was abolished for a 34 Ed. III., time by a statute made in 34 Edw. III., c. 16, which admitted

persons to claim and falsify a fine at any indefinite distance ;! whereby, as Sir Edward Coke observes,m great contention

arose, and few men were sure of their possessions, till the ParStat. 4 Hen. liament, held 4 Hen. VII., reformed that mischief, and excel

lently moderated between the latitude given by the statute and the rigor of the common law. For the statute then maden restored the doctrine of non-claim, but extended the time of claim. So that now, by that statute, the right of all strangers whatsoever is bound, unless they make claim, by way of action or lawful entry, not within one year and a day, as by the common law, but within five years after proclamation made : except feme-coverts, infants, prisoners, persons beyond the seas, and such as are not of whole mind, who have five years allow

Sur la pie, as it is in the Cotton the foot of the fine. 3. By entry on MS., and not pour le pais, as printed the lands. 4. By continual claim.-2 by Berthelet, and in 2 Inst., 511. Inst., 518. The second is not now in There were then four methods of force under the statute of Hen. VII. claiming, so as to avoid being con- | Litt., § 441. cluded by a fine: 1. By action. 2. By m 2 Inst., 518. entering such claim on the record at 0 4 Hen. VII., c. 24. See page 118.

VII., c 24.

(12) The estate so rendered made in the paternal line. (1 Salk., 337; the cognizor a new purchaser as much Dy., 237, b; Co. Litt., 316.) This last as a feoffment and re-feoffment at com- species of fine had become obsolete in mon law. Thus, if, before the fine was practice long before the abolition of levied, the estate had descended to the fines and recoveries generally; and the cognizor from his ancestors ex parte ma- fine tantum was not often resorted to. terná, it became afterward descendible

ed to them and their heirs, after the death of their husbands, their attaining full age, recovering their liberty, returning into England, or being restored to their right mind.is

(13) The stat. 4 Hen. VII., c. 24, who were parties to the fine, nor any after directing the proclamations, pro- of them (see Br. Ab., Fine, 12; Burr., ceeds, “ And the said proclamations so 95], nor no person or persons to their had and made, the said fiue to be a use, nor to the use of any of them (this final end, and conclude as well privies was before the Statute of Uses, see as strangers to the same, except women Dy., 215], had nothing in the lands covert (other than have been parties and tenements comprised in the said to the said fine), and every person then fine at the time of the said fine levied. being within the age of twenty-one And that every fine, which hereafter years, in prison, or out of this realm, shall be levied in any of the king's or not of whole mind at the time of courts, of any manors, lands, &c., after said fine levied, not parties to such fine; the manner, use, and form that fines and saving to every person or persons, have been levied afore the making of and to their heirs, other than the par- this act, be of like force, effect, and ties in the said fine, such right, title, authority as fines so levied be or were claim, and interest, as they have to or afore the making of this act, this act, or in the said lands, &c., [at] the time of any other act in this present Parliament such fine engrossed, so that they pursue made or to be made, notwithstanding; their title, claim, or interest by way of and every person shall be at liberty to action or lawful entry within five years levy any fine hereafter at his pleasure, next after the said proclamations had whether he will, after the form conand made ; and, also, saving to all oth- tained and ordained in and by this act, er persons such action, right, title, or after the manner and form aforetime claim, and interest, in or to the said used.” lands, &c., as first shall grow, remain, The following is a summary of some descend, or come to them after the said of the principal effects of a fine, accordfine engrossed and proclamations made, ing to its nature : it operated as a bar by force of any gift in the tail, or by by non-claim, in the manner mentioned any other cause or matter had and in the text, only when levied by a party made before the said fine levied, so seized rightfully or wrongfully of an that they take their action, or pursue estate of freehold, and duly proclaimtheir said right and title, according to ed; and this bar extended to strangers the law within five years next after as well as to parties and privies. (Stat. such action, right, &c., to them accrued, 4 Hen. VII., c. 24; 7 Scott, 59.) But descended, remained, fallen, or come; a fine did not bar any estate which was and if the same persons, at the time of not, either previously, or by the operasuch action, &c., accrued, &c., be co- tion of the fine itself, divested out of vert de baron, or within age, in prison, the owner, and turned to a right. (9 or out of this land, or not of whole Rep., 106, a.) If the party levying the mind, then it is ordained that their ac- fine had an actual seizin, whether righttion, right, and title be reserved and fully or wrongfully, and whether for an saved to them and their heirs (see 2 estate of fee-simple or for a less estate, H. Bl., 584; 4 T. R., 300; 4 Taunt., the fine operated, by disseizin, if neces830) unto the time they come and be sary, to the extent of its declared intenat their full age of twenty-one years, tion; but if the party to the fine was out of prison, within this land, unco- not seized at all, either from want of all vert, and of whole mind, so that they right, or by having been disseized, the or their heirs take their said actions or fine had no operation upon the seizin ; their lawful entry, according to their although, if the cognizor has a vested right and title, within five years next remainder or reversion, it passed it. after that they come and be at their (Cro. Car., 156; Co. Litt., 298.) So full age, &c., and the same actions pur- that, if A. was tenant for life, remainsue, or other lawful entry take, accord- der to B. for life or in tail, remainder ing to the law, and, &c. (a similar lim- to C. in fee, and B. levied a fine to a itation of the remedy to five years after stranger, or was cognizee to a stranger's the cesser of any disability existing at fine, this did not disturb the seizin of A., the time of levying the fine] ; saving and, consequently, did not divest the reto every person or persons, not party or mainder of c., who, therefore, could privy to the said fine, their exception to never be barred by the operation of the avoid the same fine by that, that those fine and nou-claim. (2 N. R., 1; 3 Atk., Vol. II.-DD

417

It seems to have been the intention of that politic prince, King Henry VII., to have covertly, by this statute, extended

135; 5 Mau. & S., 326.) So, the fine Al., 242.) And this estoppel (which of one of two joint-tenants or tenants in could not be taken advantage of by strancommon did not divest the estate of the gers) bound the heirs in tail, notwithother. (1 Salk., 285 ; 2 Id., 423; Cr. standing the Statute de Donis, though El., 1640.) In such cases, to give effect the fine was not proclaimed; for that to a fine, a previous disseizin by feoff- statute merely preserved to the issue his ment was resorted to. When levied by formedon, so that he might insist that, tenant in tail, in possession, remainder, by virtue of that statute, he was not reversion, or possibility, and duly pro- barred of his action, and yet could not claimed, it barred the issue in tail, but aver any thing contrary to the fine itself. not those in remainder or reversion; nor (1 Leon., 83 ; 3 Rep., 89; 1 Cr. & J., was it a bar unless the entail had been 528.) The privies who are bound by a created before the fine levied. (32 Hen. fine are their heirs or their grantees by VIII., c. 36 ; 10 Rep., 50, a.) When conveyance subsequent to the fine. levied by tenant in tail, seized of a cor- Heirs claiming in fee, being bound by poreal hereditament in possession (by the estoppel, are bound altogether; but hinself or by his termor), it was a dis- heirs in tail, though as much estopped continuance of those in remainder or re- as other heirs, had their formedon preversion (that is to say, it destroyed their served by the Statute de Donis, so far as right of entry, and put them to their that statute was not controlled by the formnedon or real action). If proclaim- stat. 32 Hen. VIII., c. 36. “ Every esed, it barred the issue in tail; if not pro- toppel ought to be reciprocal, that is, to claimed, it discontinued them also. (Co. bind both parties; and this is the reaLitt., 327, b; 1 H. Bl., 269 ; 1 B. & Cr., son, that regularly a stranger shall nei241; 4 B. & Ad., 283; 1 Cr. & J., 535; ther take advantage nor be bound by 7 Mee. & W., 102.) So that if A., ten- the estoppel; privies in blood, as the ant in tail in possession, with remainder heir, privies in estate, as the feoffee, to B., levied a fine come ceo, without lessee, &c., privies in law, as the lords proclamations, to S. and his heirs, this by escheat, tenant by the courtesy, tenwas a discontinuance of his own issue in ant in dower, the incumbent of a benetail, and of the remainder-man; if with fice, and others that come under by act proclamations, a bar of the issue, and a of law or in the post, shall be bound and discontinuance of the remainder-man. take advantage of estoppels.” (Co. Litt., If he first bargained and sold the lands to 352, a; Bro. Ab., Estoppel, 216.). S. in fee, this innocent conveyance passed But though strangers shall not directly the seizin out of himself without effect- aver and take advantage of estoppels, ing a discontinuance; and if upon that yet that which originally was merely an he levied a fine with proclamations, the estoppel may, by circumstances, acquire issue were barred, and the remainder- greater efficacy, so as to be available by man not discontinued. (Touchst., 27.) a stranger. Thus, if a contingent reIf made without proclamations, but with mainder-man or expectant heir levied a warranty, by one who claimed or ex. fine, he was estopped from averring his pected an estate-tail, but was not seized vant of present interest; but when the thereof, it effected what was equivalent contingency happened, the estate fed to a discontinuance of the issue in tail, the estoppel, and passed under the fine, but not of the remainder-man, because, which thenceforth became, to all intents, had the issue in tail (who were bound as operative as if the contingency had by the warranty and assets in fee-simple) happened before it was levied. (Polbeen allowed to enter, the estate to le f., 54; 2 P. Wms., 372; 8 B. & Cr., which the warranty was annexed would 497; 10 Id., 181.) The notion that a have determined, and thus the benefit of fine extinguished the rights and continthe warranty would have been lost. gent interests and powers of the cogni(Litt., s. 598, 601; 10 Rep., 96, a; 1 Cr. zor, seems to be now overruled, at least & J., 528.) If levied with or without so far as regards fines in which, or in the proclamations by any person, whether deeds leading or declaring the uses of entitled to any estate in the land or not, which, a coutrary intention is apparent. it estopped the parties (including mar- (Id.; M'Clel. & Y., 58.) Where such ried women) and privies from pleading an effect was not contrary to the apparor insisting that the parties had no es- ent intention, however, a fine operated tate at the time, or that it did not pass as an extinguishment or release of all the according to the terms of the fine. (27 cognizor's rights, interests, and powers. Ed. I., st. 1, c. 1; 3 Rep., 87 ; 2 B. & It was formerly supposed that if A. was

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