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,b still the fine shall be carried on in all its remaining parts: of which the next is, b Comb., 71. trary, jealous of his great authority over her, and fearful of his using compulsion, it creates a disability in her to give her consent to any thing which may affect her right or claims after the coverture, and makes all acts of such a tendency absolute nullities. By the rigor of the ancient law we take this rule to have been so universally applicable, that a married woman could in no case bind herself or her heirs by any direct mode of alienation. But accident gave birth to two indirect modes, namely, by fines and common recoveries. Though it might be proper to incapacitate the wife from being influenced by the husband to prejudice herself by any conveyances or agreements during the coverture, yet justice to others required that such as might have any claim on the wife's freehold or inheritance should not be forced to postpone their suits till the marriage was determined; for if they should, then, to use the words of Bracton, in explaining why the husband's infancy would not warrant the parol to demur, in a suit for the wife's land, mulier implacitata de jure suo si propter minorem ætatem viri posset differre judicium, ita posset qualibet mulier in fraudem nubere. (Bract., lib. 5, tract. 5, c. 21, fo. 423, a.) Probably it was on this principle the common law allowed a judgment against husband and wife, in a suit for her land, to be as conclusive as if given against a femesole; which was carried so far that, till the Statute of Westminster the second, even judgment against them, on default in a possessory action for the wife's freehold, drove the wife, after the husband's death, to a writ of right to recover her land. (2 Inst., 342.) From enabling the husband and wife to defend her title, and making the judgment on such defense to be conclusive, permitting them to compound the suit by a final agreement of record, in the same manner as other suitors, was no great or difficult transition, more especially when it is considered that, in the case of femescovert, fines are. never allowed to pass without the court's secret examination of them apart from their husbands, to know whether their consent is the re The sult of a free choice, or of the husband's compulsive influence. Such, we conceive, is the true source whence may be derived the present force of fines and common recoveries, as against the wife who joins in them; for whatever, in point of bar and conclusion, was their effect when in suits really adverse, of course attended them when they were feigned, and in that form gradually rose into modes of alienation, or, as the more usual phrase is, common assurances. conjecture we have thus hazarded, to illustrate how it happens that a married woman may alienate her real rights by fine, though not by any instrument or act strictly and nominally a conveyance, leads to proving that the common notion of a fine's binding femes-covert merely by reason of the secret examination of them by the judges is incorrect. If the secret examination of itself was so operative, the law would provide the means of effectually adding that form to ordinary conveyances, and so make them conclusive to femes-covert equally with a fine. But it is clearly otherwise; and except in the case of conveyances by custom, there must be a suit depending for the freehold or inheritance, or the examination, being extra-judicial, is ineffectual. In the Second Institute, Lord Coke represents this to be the general law, and among many authorities cited to prove it, refers to a case of Hen. VII., reported by Keilway, in which, whether the examination of a feme-covert, on the enrollment of a bargain and sale to the king, sufficed to bind her, was largely debated. (2 Inst., 673; Keilw., 4 a to 20 a.) The just explanation, therefore, of the subject is, that the pendency of a real action for the freehold of the land, in consequence of previously taking out an original writ (without which preliminary, even at this day, a fine is a nullity), should be deemed the primary cause of the fine's binding a feme-covert; and that the secret examination of her, on taking the acknowl edgment of the fine, is only a secondary cause of this operation." (Hargr., Co. Lit., 121, n. See 1 Phill., 14.) Fourthly, the note of the fine. Fifthly, the foot or conclusion of the fine. 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 of it: which includes the whole matter, reciting the parties, day, year, and place, and before whom it was acknowledged 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., c. 1, [352] 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 Sixthly, enrolled of record in the Court of Common Pleas, by 1 Ric. III., proclamation, 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. 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 tion of fines. • Appendix, No. IV., § 4. (8) The fine mentioned only the parish, vill, or township in which the lands are situate, and the quantity and quality of the lands, as "so many acres of pasture, so many houses," &c.; and, for further particularity, a deed, referring to the fine, was always necessary. (2 Vent., 32; 1 Taunt., 284.) As there was a separate writ for each county, an estate lying in two counties required two fines. (1 Taunt., 538.) Saund., Index, tit. Fines. Fines were effectual as conveyances, without proclamations; but, without that ceremony, did not operate to bar issue, nor gain any title by non-claim; therefore, fines levied in courts of ancient demesne, and such other courts as have not the power of making proclamations, were good as conveyances only, for no fine but a fine with proclamations is within 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 ceo. tum. 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 cognizor.f 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 cog- 2. Fine tannizance 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.g 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" is where the cognizor, in order to make an end of concessit 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.in 4. A 4. Fine sur fine 66 sur done, grant, et render," is a double fine, comprehend- et render. ing the fine sur cognizance le 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. In this last species of fine, the f This is that sort of which an example is given in the Appendix, No. IV. ■ Moor., 629. (10) See 1 Prest. on Conv., 201. (11) The fine come ceo was most properly used for the transfer of estates of fee-simple in possession; but it was often employed to operate upon re h West. Symb., page 2, § 95. mainders or reversions. The fine sur done, grant 3. Force and effect of a 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. We are next to consider the force and effect of a fine. 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 claim, stat. c. 16 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 foot 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 ;1 whereby, as Sir Edward Coke obseryes,m great contention arose, and few men were sure of their possessions, till the Parliament, held 4 Hen. VII., reformed that mischief, and excellently moderated between the latitude given by the statute and the rigor of the common law. For the statute then made" 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 Stat. 4 Hen. 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.13 (13) The stat. 4 Hen. VII., c. 24, after directing the proclamations, proceeds, "And the said proclamations so had and made, the said fine to be a final end, and conclude as well privies as strangers to the same, except women covert (other than have been parties to the said fine), and every person then being within the age of twenty-one years, in prison, or out of this realm, or not of whole mind at the time of said fine levied, not parties to such fine; and saving to every person or persons, and to their heirs, other than the parties in the said fine, such right, title, claim, and interest, as they have to or in the said lands, &c., [at] the time of such fine engrossed, so that they pursue their title, claim, or interest by way of action or lawful entry within five years next after the said proclamations had and made; and, also, saving to all other persons such action, right, title, claim, and interest, in or to the said lands, &c., as first shall grow, remain, descend, or come to them after the said fine engrossed and proclamations made, by force of any gift in the tail, or by any other cause or matter had and made before the said fine levied, so that they take their action, or pursue their said right and title, according to the law within five years next after such action, right, &c., to them accrued, descended, remained, fallen, or come; and if the same persons, at the time of such action; &c., accrued, &c., be covert de baron, or within age, in prison, or out of this land, or not of whole mind, then it is ordained that their action, right, and title be reserved and saved to them and their heirs [see 2 H. Bl., 584; 4 T. R., 300; 4 Taunt., 830] unto the time they come and be at their full age of twenty-one years, out of prison, within this land, uncovert, and of whole mind, so that they or their heirs take their said actions or their lawful entry, according to their right and title, within five years next after that they come and be at their full age, &c., and the same actions pursue, or other lawful entry take, according to the law, and, &c. [a similar limitation of the remedy to five years after the cesser of any disability existing at the time of levying the fine]; saving to every person or persons, not party or privy to the said fine, their exception to avoid the same fine by that, that those VOL. -D D who were parties to the fine, nor any of them [see Br. Ab., Fine, 12; Burr., 95], nor no person or persons to their use, nor to the use of any of them [this was before the Statute of Uses, see Dy., 215], had nothing in the lands and tenements comprised in the said fine at the time of the said fine levied. And that every fine, which hereafter shall be levied in any of the king's courts, of any manors, lands, &c., after the manner, use, and form that fines have been levied afore the making of this act, be of like force, effect, and authority as fines so levied be or were afore the making of this act, this act, or any other act in this present Parliament made or to be made, notwithstanding; and every person shall be at liberty to levy any fine hereafter at his pleasure, whether he will, after the form contained and ordained in and by this act, or after the manner and form aforetime used." The following is a summary of some of the principal effects of a fine, according to its nature: it operated as a bar by non-claim, in the manner mentioned in the text, only when levied by a party seized rightfully or wrongfully of an estate of freehold, and duly proclaim. ed; and this bar extended to strangers as well as to parties and privies. (Stat. 4 Hen. VIL., c. 24; 7 Scott, 59.) But a fine did not bar any estate which was not, either previously, or by the operation of the fine itself, divested out of the owner, and turned to a right. (9 Rep., 106, a.) If the party levying the fine had an actual seizin, whether rightfully or wrongfully, and whether for an estate of fee-simple or for a less estate, the fine operated, by disseizin, if necessary, to the extent of its declared intention; but if the party to the fine was not seized at all, either from want of all right, or by having been disseized, the fine had no operation upon the seizin; although, if the cognizor has a vested remainder or reversion, it passed it. (Cro. Car., 156; Co. Litt., 298.) So that, if A. was tenant for life, remainder to B. for life or in tail, remainder to C. in fee, and B. levied a fine to a stranger, or was cognizee to a stranger's fine, this did not disturb the seizin of A., and, consequently, did not divest the remainder of C., who, therefore, could never be barred by the operation of the fine and non-claim. (2 N. R., 1; 3 Atk., 417 |