(E 1.) Upon what writ it may be levied :- The original writ. p. 300. (E 2.) Of what things. p. 302. (E S.) (E 4.) In what order. p. 303. By what names. p. 303. (E 5.) The caption of the fine:- In court. p. 305. (E 8.) Licence to agree. p. 310. (E 9.) The concord: - Fine sur conusance de droit come ceo, &c. p. 313. (E 10.) Fine upon a release. p. 315. (E 11.) Fine upon a surrender. p. 315. (E 12.) Sur conusance de droit tantum. p. 316. E 14.) Sur concessit. p. 318. (E 15.) How a fine executory shall be executed. p.318. (E 16.) The note, and foot of the fine. p. 319. (F) Duid juris clamat, &c. p. 320. (G 1.) Proclamations, &c. p. 321. (G 2.) Ingrossing. p.322. (G 3.) Inrolment, and exemplification. p. 322. (H) A fine, how avoided. (H 1.) By plea. p. 322. (H 2.) How a fine shall be pleaded. p. 323. (H 3.) By writ of error:- What shall be error. (H 4. a.) By whom error shall be sued. p. $24. (H 5.) How it shall be pursued. p. 325. (1) Who are barred by a fine. (I 1.) Parties and privies. p. 326. (I 2.) Strangers: - For what interest. p. 327. p. 326. (K) WHO (K) Who are not barred. (K 1.) If they claim within five years. p. 330. (K. 2.) Or, within five years after a new right accrued. (K 3.) If they be an infant, feme covert, &c. p. 334. (L) How a fine operates, [and from what period.] p. 335. (A) The antiquity of it. A fine is (a) a feoffment upon record. Co. L. 10. a. (b) But it is an improper feoffiment. 1 Sal. 340. And it is called a fine, because finem ponit litibus. Co. L. 262. Pl. Com. 369. (c) And it is as antient as any court of record. Pl. Com. 357. a. 368. b. (d) And it was levied before the Conquest. 2 Inst. 511. Pl. Com. 368. Dub. Mad. Form. Int. 13. (e) (B) 15u (a) 1. A fine is an amicable agreement or composition of a suit, whether real or fictitious, between the demandant and tenant, with the consent of the judges, and enrolled among the records of the court where the suit is commenced, by which lands and tenements are transferred from one person to another, or any other settlement is made respecting them. 5 Cruise, 66.-2. To this mode of transferring estates of freehold, the ceremony of livery of seisin is unnecessary; not because the supposition and acknowledgement thereof in a court of record induces an equal notoriety, for in ancient fines no such acknowledgement is made; but because lands acquired in this manner, were supposed to be recovered by sentence of a court of justice; and the possession was delivered by the sheriff, in pursuance of a writ directed to him for that purpose; which was equal in point of notoriety to the ceremony of livery of seisin. Bract. 435. b. (b) 1. That is, a fine sur cognizance de droit come ceo. — 2. But this expression is by no means correct; for there are cases in which a feoffment has a more extensive operation than a fine; and therefore Sir William Blackstone has justly observed, that it might with more accuracy be called an acknowledgement of a feoffment upon record. 5 Cruise, 104. (c) 1. Et nota, quod dicitur talis concordia finalis, eo quod finem imponit negotio, adeo ut neuter litigantium ab ea de cetero poterit recedere. Glanv. lib. 8. c. 3. - 2. Finis est extremitas unius cujusque rei et ideo dicitur finalis concordia, quia imponit finem litibus. Bract. 435. b. (d) 1. The idea of a fine appears to have been originally taken from the transactio of the Roman law; which was an accommodation of a suit already commenced, or an agreement respecting some doubtful matter, that would otherwise become the subject of a suit; and is thus described: Transactio est super re dubia, aut lite incerta, conventio non gratuita, aliquo dato, retento, vel promisso. 5 Cruise, 67. Cowell's Dict. Fine. Voet, Comp. Jur. 51.- - 2. So Bracton defines a fine, Concordia in foro seculari idem est quod transactio; et est transactio de re dubia et lite incerta, aliquo dato, vel promisso, vel retento, à lite transactio. Bract. 510. Cruise, Ibid. 3. So Lord Coke, speaking of the etymology of the word fine, says and the civilians calls this judicial concord, transactionem judicialem de re immobili.' 1 Inst. 262. a. -4. The word finis, continues Mr. Cruise, appears to have been used upon the continent, as synonimous to transactio, in the twelfth century; of which several charters, published by Muratori, afford proof. Transactio inter Gerardum comitem, &c. atque Attonum Archiepiscopum Pisanum, anno, 1121. In Eterni Dei nomine, Amen. Breva recordationis qualitur Gerardus comes, &c. finem fecit et transactionem Grațiano vicedomin, ad partem ecclesiæ archiepiscopatus Sanctæ Mariæ et Vice Attoni ejusdem ecclesiæ archiepiscopo, &c. de quinque partibus integris de Curte de Bellora, &c. 5 Cruise, 68. Antiq. Med. Æv. tom. 9. 449. 463. 487. (e) 1. It has been, says Mr. Cruise, a favourite topic with our lawyers, to enlarge on the antiquity of fines. Some have carried this idea so far as to insist, that they U 3 were (B) By whom it may be levied. All persons (f) of full age and sound memory (g) may lery fines of lands of which they are seised. Vide West, Symb. 3. a. (h) Though seised only of a reversion or remainder. Vide West, Symb. 3. b. So, husband and wife, of lands of the wife. So a parcener, joint-tenant, or tenant in common may levy a fine of his purparty. Vide West, Symb. 3. b. (i) were coeval with the first rudiments of the common law, and formed an original assurance. Others have contended, that fines were well known in this kingdom before the Norman conquest. But if it be admitted that the first idea of a fine was derived from the Roman jurisprudence, it will follow that fines could not possibly have been known in England until some time after the year 1150, when a copy of the Pandects was found at Amalphi, in Italy. 5 Cruise, 69.-2. As a farther proof of this assertion, it may be observed, he continues, that Dugdale and Madox, two of the most diligent and learned inquirers into our ancient records and charters, have acknowledged, that they could not discover any traces of fines in this country before the time of Henry the second, who ascended the throne in 1155; that is, thirty-four years after the introduction of the Roman jurisprudence. So that there can scarce remain a doubt, but that fines were first introduced into England during the reign of king Stephen, or that of his immediate successor king Henry the Second, and that we are indebted to Justinian's Code for this assurance. Ibid. (f) 1. There are several records of fines published by Dugdale and Madox, to which the king was a party. 5 Cruise, 131. Dugd. Orig. Jur. 93. Mad. Form. No. 394. - 2. It was, however, much doubted in the reign of James the First, whether the king could levy a fine; and his majesty having consulted Lord Chief Justice Popham, and Lord Coke, who was then attorney-general, on this subject, they gave it as their opinion, that although the king could not be cognizor of a fine, because a writ of covenant could not be brought against him; yet that if a fine was levied to the king he might then make a grant and render, which would be good, and sufficient to bind him. 5 Cruise, 131. 7 Rep. 32. — 3. The queen may levy a fine, and a fine may be levied to her; for she has in every instance the particular privilege of suing, and being sued alone, and is considered in all legal proceedings as a feme sole. 5 Cruise, 131. 1 Inst. 3. a. 133. a. 4 Rep. 25. b. (g) Persons who are blind, deaf, or dumb, or who are both deaf and dumb at the same time, may levy fines, if it appear that notwithstanding those disabilities, they are capable of comprehending the nature and consequences of a fine, and can express their meaning by writings or signs. And there are three instances of persons born deaf and dumb, who were permitted to levy fines. Carter, 53. Barnes, 19. Id. 23. (h) 1. A disseisor may levy a fine. 5 Cruise, 136. 3 Rep. 79. b.-2. So if a person enters under a devise that is void, he thereby acquires a freehold by abatement, and may levy a fine. Ibid.—3. If the heir at law enters, notwithstanding a devise in favour of some other person, and levies a fine, it will be good. Cro. Car. 200.-4. And where a person has a seisin in law, by the descent of lands upon him, he may levy a fine. Cro. Eliz. 659. - 5. And a person having a defeasible right only to lands, may, notwithstanding, levy a fine of them; which cannot be set aside by the plea, that neither of the parties had an estate of freehold in the lands. 1 P. Wms. 505. 13 Vin. Abr. 336.— 6. Though where persons who have taken possession by wrong, levy a fine before any receipt of rent, such fine has no effect. 3 Atk. 336.— - 7. Where a fine was levied of Michaelmas term, relating to the 6th, though, in fact, levied on the 8th of November, it was held to be sufficient evidence of the seisin in fact of the cognizor at the time of the fine levied, that a writ of possession, after a recovery in ejectment, was executed on his behalf on the evening of the 6th, by the officer's entry on the land, and claiming it for the cognizor, but without any actual change of the tenant in possession, who afterwards paid rent to the cognizor. 11 East, 495.-8. There are two cases in which a fine is allowed to operate, although the parties have no estate of freehold in the lands. The first is, where a cestui que trust levies a fine of his trust estate; and the second is, where a fine is levied by a vouchee to the demandant in a real action; or from a demandant to a vouchee, which is held good. 5 Cruise, 144. (i) 1 Rep. 58. a. 6 Mod. 45. 1 Salk. 286. So So a corporation sole may levy a fine of his lands, which he has in his corporate capacity. (k) So a man may levy a fine, though he be outlawed in a personal action. (1) So a fine by a man non compos (m) though it ought not to be levied (n) binds for ever, when it is levied. (0) So a fine by a man attainted for treason or felony, binds all but the king. Vide West, Symb. 3. a. (p) So, a fine by an alien. (7) So, a fine by an infant, (r) or feme covert (s) without her husband, (k) Co. Read. 7. (1) West, Symb. p. 2. s. 13. binds (m) If it is suggested that the cognizor is insane, he may be produced and examined in court. Barnes, 218. (n) The statute de modo levandi fines expressly directs, that persons of this description shall not be permitted to levy a fine. (0) 1. Because the record and judgment of the court, being the highest evidence in the law, the cognizor must be presumed to have been capable of contracting at the time; therefore no averment can be admitted to the contrary. 5 Cruise, 148. 4 Rep. 124. -2. And a declaration of the uses of a fine, by an idiot or lunatic, will also be good. 12 Rep. 124. 2 Rep. 58. Winch, 106. Hob. 224. 10 Rep. 42. Vide Barnes, 218. (p) Á fine by tenant in tail having committed murder, before conviction, bars the heir in tail. 2 Wils. 219. (q) 1. An alien, being incapable of holding lands, ought not to be permitted to levy a fine. But if he does levy a fine, it will not conclude the king after office found. 5 Cruise, 144. 13 Vin. Abr. 228. 2. Nor will a fine be allowed to pass, where it appears that the cognizor, or one of several cognizors, is an alien enemy. 1 Taunt. 144. (r) 1. By 7 Ann. c. 19, it is enacted, that it shall and may be lawful to and for any person under the age of twenty-one years, by the direction of the court of chancery or exchequer, on the petition of the persons for whom such infants shall be seised or possessed in trust, to convey and assure any such lands, tenements, or hereditaments, in such manner as the said court shall direct. 2. Under which act, the infant heir of a mortgagee in fee, though a feme covert, may convey by fine. 3 Atk. 479. Com. Rep. 615.-3. By 4 G. 3. c. 16. it is enacted, that it shall and may be lawful for any infants, having estates in lands, tenements, or hereditaments, within the duchy of Lancaster or the counties palatine of Chester, Lancaster, and Durham, or in the principality of Wales, by the direction of the court of the duchy chamber of Lancaster, of the court of exchequer in the county palatine of Chester, or of the court of chancery of the county palatine of Lancaster, or the court of chancery of the county palatine of Durham, and of the several courts of the great sessions in Wales respectively, to convey and assure any such lands, tenements, or hereditaments, in such manner as the said several courts shall direct. (s) 1. The statute de modo levandi fines directs that if a feme covert be one of the parties to a fine, she ought first to be examined by four of the justices, and if she refused her assent to the fine, it should not be levied. 2 Inst. 515.- 2. When a married woman is party to a fine, she ought to be examined secretly and apart from her husband, pursuant to this statute, in order that the judges or commissioners may inform themselves, whether she joins in the fine of her own free will, or is compelled to it by the threats or menaces of her husband. Every thing contained in the writ should be distinctly named to her, and she ought to be informed of the consequences of her assenting to the fine. But although the statute de modo levandi fines thus positively directs the private examination of a married woman, yet if she is allowed to acknowledge a fine, without being examined, it will bind both her and her heirs for ever; there being no mode of reversing such a fine; because it cannot afterwards be averred that the married woman was not examined, the contrary being recorded. 5 Cruise, 152. 2 Inst. 515. 3 Atk. 712.-3. The private examination of a married woman, however, is not directed in all cases; as that circumstance was prescribed by the legislature only to prevent married women from making an imprudent disposition of their property, at the instance of their husbands; so that where a husband and wife acquire any interest by a fine, and depart with nothing, the wife need not be examined, because in that case she cannot possibly be prejudiced. It may therefore be laid down that a married U 4 woman (t) binds (u) till it be avoided. Vide Baron and Feme, (P 1.)Enfant, (B 2.) But a fine cannot be levied by (a) a corporation aggregate: for it cannot act but by attorney, and it cannot make conusance by attorney. (y) So, woman need only be privately examined, when she joins in granting some estate, or departing with some interest. 5 Cruise, 152. Litt. s. 670. 1 Inst. 355. b. 2 Inst. 515. 4. Thus if a fine be levied to a husband and wife, who grant and render a rent, the wife ought to be examined; because by the render she makes herself liable to the payment of the rent. Rol. Abr, tit. Fine, M. 1. (t) 1. 1 Inst. 76. a. 7 Rep. 43. a 10 Rep. 46. a. Hob. 225.-2. There is no case in which the court has authenticated a fine levied by a married woman as such without her husband. 5 Cruise, 134. — 3. Upon a motion that Ann Moreau, wife of Moreau, might levy a fine without her husband, it appeared that the lands had been sold by the husband, who covenanted, that he and his wife, when of age, should levy a fine when the wife came of age, she refused to join in it; but it was levied by the husband alone, who went abroad. Afterwards the wife consented to levy it, but the husband was husband. It was said, that it had been usual in such cases for the cursitor to make out a præcipe to the wife, as a feme sole; but no example of it was produced upon the motion. The court would make no rule to authenticate such a fine; but it was afterwards acknowledged de bene esse, before the lord chief justice then in court. 2 Blk. 1205.- - 4. The estate of a married woman having been regularly sold, the conveyances duly executed by the husband and wife, and the purchase money paid, the husband became insane. Upon an application to allow the wife to acknowledge the fine without her husband, the court said, that they should make no order upon the subject; but that it appeared to them that there was no objection to the acknowledgment of the fine being taken; valeat quantum. 1 N. R. 312,- 5. The court refused to allow a fine by a feme covert to pass, though her husband, declared a bankrupt, had absconded and gone abroad. 1 Taunt. 37. 6. Neither will it allow a feme covert to suffer a recovery without her husband, though as a joint-tenant with others. 1 Taunt. 478.7. Nor will it amend the recovery by adding the name of her husband. Ibid. -8. The most scrupulous adherence to the prescribed forms of the caption of the acknowledgment of a recovery by a feme covert, is requisite. 5 Taunt. 661. (u) If a woman levies a fine by the name of Mary the wife of Thomas Stiles, it will be void; because it appears by the very record itself, that the cognizor was a married woman. 1 Sid. 122. (a) 1. No person can levy a fine of lands that will affect strangers, unless he has at least an estate of freehold in possession, either by right or by wrong; otherwise it might be in the power of any two strangers to deprive a third person of his estate, by levying a fine of it; so that in every case where a fine is levied, and none of the parties to such fine have any estate of freehold in possession in the lands whereof the fine is levied, it will only bind the parties themselves and their heirs, but may at any time be set aside by the real owner, by pleading that neither of the parties had an estate of freehold in the lands, at the time when the fine was levied. 5 Cruise, 155. 5 Rep. 125. b. 5 Atk. 141. 2. And where a person entitled to an estate tail ir remainder, levied a fine of it jointly with his son, who had no freehold estate, it was held, that this fine had no effect. 2 Str. 1036. Andr. 125. 4 B. P. C. 85.-3. So if a person who is only possessed of lands for a term of years, or who holds them by statute-merchant, statute-staple, or writ of elegit, levies a fine of them, it will have no effect whatever, as to strangers, because the cognizor has no estate of freehold. 5 Rep. 77. b.- 4. And it follows from the same principle, that if a copyholder levies a fine of his copyhold, it is void, because the freehold is in the land. Co. Cap. 55. — 5. And the only mode by which a tenant for years, or a copyholder, can levy a fine, so as to give it any force, is, by first making a feoffment, by which means he acquires a freehold by desseisin. 1 Inst. 330. b. n. Lev. 52. 6. This doctrine, however, has been questioned by Lord Mansfield; but is, notwithstanding, admitted by some practitioners. 5 Cruise, 156. (y) 1. It appears from Glanville, that the suitors in the curiâ regis were at all times allowed to prosecute their causes by attorney, who was called responsalis ad lucrandum vel perdendum; and a plea might be thus commenced and determined, whether by judgment or by final concord, as effectually as by the principal himself. Per procuratorem itaque talem potest placitum illud deduci in curia, et terminari, sive per judi 1 |