.

grants; or if his own title to the thing granted be 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 grant it would be; because it may reasonably be supposed, that the king meant to give no more than an estatetail: (1) 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 no 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.

5

III. We are next to consider a very usual species of assurance, which is also of record; viz. a fine of 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.

1. A fine is sometimes said to be a feoffment of record: (n) though it might with more accuracy be called an acknowledgment of a feoffment on record. By which is to be understood, that it has at least the same force and effect with 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 actual [349] ly given; the supposition and acknowledgment 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 ancient record of parliament, (p) 18 Edw. I. "Non in regno Angliae providetur, vebest, 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 causâ "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 Hen. II. and Hen. 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

(5) See in general, Com. Dig. Fine; Bac. Ab. Fines and Recoveries; Cruise on Fines and Recoveries; Vin. Ab. Fine: Cru. Dig. index, Fine; 1 Prest on Conv. 200 to 309.; Thomas Co. Litt. 2 vol. 606 to 615.; 2 Saunders Rep. index, tit. Fine.

fines, did not give them original; but only declared and regulated the manner in 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 assured, com

mences an action or suit at law against the other, generally an ac[350] tion of covenant, (t) by suing out a writ of praecipe, 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 ancient prerogative, a primer fene, or a noble for every five marks of land sued for; that is, one-tenth of the annual value (u) The suit being thus commenced, then follows,

2. The licentia concordandi, or leave to agree the suit. (w). 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 ancient 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, three-twentieths of the supposed annual value. (4)

3. Next comes the concord, or agreement itself, (y) after leave obtained from the court: which is usually an acknowledgment 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 cognizor, [351] 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 A fine may also be levied on a writ of mesne, or warrantin chartae, or de consuetudinibus et servitiu. (Finch. L. 278. See Appendix, N° IV. §1. u 2 Inst. 511.

w Appendix, No IV. § 2. In the times of strict feodal jurisdiction, if a vassal had commenced a suit in the lord's court, he could not abandon it without leave; lest the lord sould be deprived of his perquisites for deciding the cause. (Robertson, Cha. V. i. 31.)

15 Rep. 39. 2 Inst. 511. Stat. 32 Geo. II. c. 14.

y Appendix, No IV. § 5...

(6) All fines acknowledged in Westminster must be acknowledged before a judge or a serjeant; if there be a judge in town, and if it be acknowledged there before any of his commissioners, it is irregular. 3 Taunt. 49. Fines and recoveries in Westminster-hall of lands in Wales, or the counties palatine, are coram non judice, and therefore void. 1 Pres. Conv. 266. They may be levied in the respective local courts. See 34 and 35 Hen. VIII. c. 26. 43 Eliz. c. 15. 2 and 3 Edw. Vlec. 28. 37 Hen. VIII. c. 19. 5 Eliz. c. 7. Fines of copyhold lands should be le vied in the lord's court, and fines of land in ancient demesne in the count of the manor. 1 Cruise Dig. 93. b. 1 Prest. Conv. 159. 266. But the court of common pleas has jurisdiction over the lands as far as they are of freehold tenure, so that the lord may implead or be impleaded in that court. Ib. 167. The courts in England have no jurisdiction over lands in Ireland, or the West Indies, though a fine of lands in the West Indies is sometimes levied in the courts in Westminster hall, because the colonial courts respect such fine, as a species of solemn conveyance. Ib. fine may be levied in the king's bench on a writ of error from the common pleas, ib 268.; and it it be levied on a writ returnable in K. B. it is voidable only, not void. Co. Read. 8. 9 Vin. Abr. Fine, 217. Chitty. (7) Or before justices of assize, in which case it is the practice, though not deemed absolutely necessary, to sue out a dedimus potestatem after the acknowledgment is taken. 1 Prest. Conv 278. See also Jenk. Cent. 277. Co. Read. 9.

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.

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

(8) By the stat. 7 Ann. c. 19. infant trustees and mortgagees may, under the direction of the court of chancery or exchequer, convey the trust or mortgage estate, and must do so if so ordered, and if levying a fine be necessary, the court will order them to levy the fine, 3 Atk. 479.; but it seems implied or constructive trusts are not within the act. Goodwyn v. Lister, 3 P. Wms. 388. And by the 4 Geo. III. c. 16. infant trustees of lands within the counties palatine, and in the principality of Wales and duchy of Lancaster, may in like manner convey under the direction of their respective courts; and see 6 Geo. IV. c. 74. Chitty.

(9) In order to bar the wife's claim to dower upon the land of the husband, and enable him to convey his estate disincumbered from that liability; and in order also absolutely to convey the estate of the wife, when she and her husband are entitled to it in her right, her joining in a fine is essential. Upon this point Mr. Hargrave in Co. Litt. 122. C. note 1. makes the following excellent remarks. (See also 1 Prest. on Conv. 254 to 257.) "A third effect of fines is, passing the estates and interests of married women in the inheritance or freehold of lands and tenements. Our common law bountifully invests the husband with a right over the whole of the wife's personalty, and entitles him to the rents and profits of her real estate during the coverture. It further gives him an estate for his own life in her inheritance, if the husband is actually in possession, and there is born any issue of the marriage capable of inheriting. But the same law which confers so much on the husband, will not allow her, whilst a feme-covert, to enlarge the provision for him out of her property, or to strip herself of any claims which the law gives her on his. On the contrary, jealous of his great authority over her, and fearful of his using compulsion, it creates a disa bility in her to give her consent to any thing which may effect her right or claims after the coverture, and makes all acts of such a tendency absolute nullities. By the rigour 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 quelibet 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 judginent against husband and wife, in a suit for her land to be as conclusive, as if given against a feme-sole; which was carried so far, that till the statute of Westminster the second, even judgment against them, on default in 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 defence 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 result of a free choice, or of the busband'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 forin gradually rose into modes of alienation, or, as the more usual phrase is, common assurances. The conjecture we have thus hazarded to illustrate, how it happens, that a married woman may alienate her real rights by tine, though not by any instrument or act strictly and nominally a conveyance, leads to proving that the cominon notion of a fine's binding femmes-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 exami. nation being extra-judicial is ineffectual. In the second institute, lord Coke represents this to be the general law, and amongst 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 enrolment 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 acknowledgment of the fine, is only a secondary cause of this operation." Chitty

be subsequent to the day on which the writ is made returnable, (2) t 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 statue 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, "haec est finalis concor"dia, this is the final agreement," and then reciting the whole proceding at length. And thus the fine is completely levied at common law."

or covin. 12

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 And, first, by 27 Edw. I. c. 1., the note of the fine shall [352] 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.

2. Fines, thus levied, are of four kinds. 13 1. What in our law 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 a Appendix. N° IV. § 4. b Ibid. § 5. e Appendix. N° IV. § 6.

z Comb. 71.

d This is that sort, of which an example is given in the Appendix, No IV.

(10) For if either the cognizor or cognizee die before the return of the writ of covenant, it is error, and the fine may be reversed, 2 Lord Raymond, 872.; but where there are several plaintiffs, or several defendants, the death of one of them before the return of the writ renders the fine avoidable for error, as to that one person only. See 1 Prest. Conv. 275.

(11) If the land lie in different counties, there must be a writ, concord, and fine for the parcels in each county, 1 Prest. Conv. 286.; and several owners of distinct tenements will not be allowed to join in the same fine, unless the lands are under the value of 2001. and there is an affidavit to that effect. But this rule does not apply in the case of coparceners, joint-tenants, and tenants in common. Archbold

(12) As to the utility of proclamations, see 1 Prest. 214. et seq. 2 Saund. index, tit. Fines. Fines are as effectual as conveyances, without proclamations; but without that ceremony they cannot 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, are 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 an estate-tail. 1 Salk. $39. 1 Saund, 258. Chitty.

a. note 8.

(13) See 1 Prest, on Conv. 201.

CHAP. 21.]

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 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 acknowledges, cognoscit, the right to be in the plaintiff, or cognizee, [353] 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 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 66 grants for himself and his heirs, that the reversion, after the particular "estate determines, shall go to the cognizee." (f) 3. A fine " sur con"cessit" 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. (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. 14 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 seisin in law, without an actual livery; and is therefore called a fine executed, whereas the others are but executory.

These prin3. We are next to consider the force and effect of a fine. 15 cipally depend, at this day, on the common law, and the two statutes, 4 Hen. VII. c. 24. and 32, Hen. VIII. c. 36. The ancient common law, with respect to this point, is very forcibly declared by the sta- [354] tute 18 Edw. I. in these words: "And the reason, why such so"lemnity 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 preludes 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 (i) of the fine within a year and a day."

f West. Symb. p. 2. § 95.

g West. p. 2. § 66.

h Salk. $40. e Moor. 629. i Sur la pie, as it is in the Cotton MS. and not pur le pais, as printed by Berthelet, and in 2 Inst. 511.

(14) The estate so rendered makes the conusor a new purchaser as much as a feoffment and Co. Litt. 316. re-feoffment at common law. Thus if before the fine the estate descended ex parte materni, it is afterwards descendible in the paternal line. 1 Salk. 337. Dy. 237. b.

(15) See in general, 1 Prest. on Conv. 200. &c. 2 Saund. index, Fines; and as to pleading a fine, see 2 Chitty on Pleading, 4th edit. 580.