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May. A caveat to prevent the completing of this fine was brought to the king's silver office the 13th of June, before the record was made up in form, in behalf of Joha Nunn, eldest son and heir of the cognizor. A rule to shew cause why that caveat should not be withdrawn was made absolute, and the court utterly exploded the notion which prevailed, undoubtedly by mistake, in Harneis v. Micklethwaite, Barnes, 214., that the king's silver was the pre-fine, or fine, for licence to alienate, whereas the king's silver is the post-fine, or fine quæ pro licentia concordandi. The return of the writ of covenant was agreed to have been in the life-time of Mary Nunn, the cognizor; and from that time the crown had a right to the post-fine, which was entered at the king's silver office before any caveat was entered against it. The making up the record in form is a ministerial act, not necessary to be done previous to the caveat, as the entry of the clerk of the king's silver was sufficient. 5 Cruise, 79. Barnes, 218. -6. When a year and a day has elaped from the date of the caption, or acknowledgment of a fine without entering the king's silver, an affidavit must be made, that all those who depart with any interest by the fine are still living, otherwise the king's silver will not be received. And if a year elapses before the fine is carried to the king's silver office, an affidavit must be made that the parties were alive when the king's silver was made. 5 Cruise, so. Barnes, 25. 215. – 7. By a rule of the court of common pleas, made in Easter term, 9 Anne, it is ordered, that no fine whatsoever, taken and acknowledged before the chief justice, or any judge of assise, or serjeant at law, if the dates of the caption of such fine shall appear to have been raised, shall for the future pass the queen's silver office, and the queen's silver of such fine be recorded by the said clerk of the queen's silver, before there be an order under the hand of the said chief justice, or some other justice of this court, for his passing and entering such fine, first had and obtained. 5 Cruise, 80. - 8. Formerly the post-fine or king's silver was paid at the king's silver office; but by the st. 32 G. 2. č. 14. s. 1., it is enacted, that on every writ of covenant which shall be sued out for passing of fines in the common pleas at Westminster, the officer whose duty it is to set and indorse the pre-fine payable thereon, shall, at the same time, set the usual post-fine, and indorse the same on the back of the said writ, together with his name or mark of office, in like manner as the same are now indorsed at the king's silver office; which post-fine shall be forthwith paid to the receiver of the pre-fines at the alienation office, with 4d, as his fee for receiving the same, instead of his fee of 4d. charged on lands and hereditaments, and payable to sheriffs, bailiffs, and others, on discharging the same, by 3 G. 1. c. 15.; which fee of 4d. by the said act granted, after the first day of Trinity term, 1759, shall cease; and such receiver shall indórse upon the back of every such writ of covenant one mark of office, as is now used by him on the receipt of pre-fines at the alienation office, with the name of such receiver, and the sum received as the post-fine; which mark of such receiver, shall discharge the manors, lands, and hereditaments comprised in the said writ of covenant, and the cognizees named therein. - 9. By s. 2., the officer or clerk of the king's silver office, or his deputy, shall continue to enter every fine upon record, in the way hitherto used, and make the same entries, and put thereon the same indorsements, with the same mark, and in like manner, as hath hitherto been the practice of the said office in passing fines; and no fine until the same be marked with the sum to which the post-fine amounts in the king's silver office, shall be effectual in law. - 10. By s. 3. where no pre-fine is payable on any. writ of covenant, viz. where the lands are, under the yearly value of five marks, the officer at the alienation office, whose duty it is to set pre-fines, shall set on every writ of covenant brought to the said alienation office, on which no pre-fine is payable, a post-fine of 68. 8d. and shall indorse such post-fine of 6s. 8d. on every such writ of covenant, with his name and mark of office as has been usual ; and every such postfine of 68. sd, shall be paid to the receiver of the alienation office before the writ of covenant, on which po pre-fine is payable, be passed at the alienation office; and the receiver on payment of the said 6s. 8d, shall indorse and mark every such writ of covenant, as other writs of covenant are by this act directed to be indorsed. - 11. By s. 4. the officer or clerk of the king's silver office or his deputy, after the first day of Trinity term, 1759, shall not receive any writ of covenant; unless it appear, by the mark and indorsement of such receiver, that the post-fine has been paid. — 12. By s. 5. if after the payment of such post-fine, the writ of covenant, by the death. of any of the parties, or other cause, be prevented from passing through the several other offices, so as the said fine is not completed, then the said receiver shall repay to the cognizees, or their attorney, on producing and filing with him the said writ of covenant, every such sum as has been by him before received for the post-fine; and such writ of covenant so remaining filed with such receiver, shall be a discharge to such receiver. - 13. By a rule of the court of C. B. made in Easter term, 36 G., 3.,
(E 9.) The concord:-Fine sur conusance de droit come ceo, &c.
The third part of a fine is the concord. 5 Co. 39. a. (r)
it is ordered, that no fines which shall appear to have been acknowledged more than twelve calendar months, shall be permitted to pass the king's silver office, without a rule of court, or an order under the hand of the lord chief justice, or some other judge of that court. And that where the conuzor or conuzors shall be all living at the time of making the application for such rule or order, an affidavit shall be made thereof. And in case any or either of the conuzors of such fine should not then be living, an affidavit shall be made, stating the time of the death of such conuzor or conuzors; and the application in such case for a rule or order, that the said fine may pass the king's silver office, shall be made to the court by motion, if in term time, or if in vacation to the lord chief justice or some other of the justices of that court, at his chambers. And that the rule or order in such last-mentioned cases, when obtained, shall be filed with the præcipe and concord of the fine at the king's silver office. 1 B. & P. 530.
(r 1. Which is entered into openly in the court of common pleas, or before the chief justice of that court, or commissioners duly authorised for that purpose. 5 Cruise, 83. 5 Rep. 39. a. - 2. It is usually an acknowledgment from the deforciants, or those who keep the others out of possession, that the lands in question are the right of the demandant; and from the acknowledgment or recognition of right thus made, the party who levies the fine is called the cognizor, and the person to whom it is levied, the cognizee. Ibid. — 3. And the form of the concord is this: And the agreement is such, to wit, that the aforesaid A. (the deforciant in the original writ) hath acknowledged the aforesaid manors, lands, tenements, and hereditaments, with the appurtenances, to be the right of him the said B. (the plaintiff or demandant) and those he hath remised and quit-claimed from him the said A. and his heirs, to the aforesaid B. and his heirs for ever. And inoreover the said A. hath granted for himself and his heirs, that he will warrant to the aforesaid B. and his heirs, the aforesaid manor, lands, tenements, and hereditaments, with the appurtenances, against him the said A. and his heirs for ever. 5 Cruise, 83. – 4. By the common law, indeed, the cognizor seems to have been bound to warrant the lands to the cognizee, though 'no express words to that purpose were inserted in the fine. Thus Bracton says, Item sufficit finis factus in curia domini regis, licet expressa warrantia vel homagium et servitium non intervenerit; dum tamen constiterit, per finem et chirographum, quod ille qui tenet, tenere debeat de eo qui vocatur ad warrantiam. Bract. 382. a. 389. a. 5 Cruise, 84. — 5. But in course of time it became the practice to annex an express warranty to all fines, which is still continued. 5 Cruise, 84. Vide infra in the text.
(s) 1. The loss of the concord was supplied by another, that it might pass the custos brevium office. 4 Taunt. 195.- 2. So a fine was allowed to pass by a copy of the præcipe and concord left with the judge, the original having been lost. i Mars. 553. 6 Taunt. 231.- 3. So if the clerk of an attorney employed to levy a fine abscond, whereby the papers are mislaid, the court will permit such fine to be afterwards perfected, although the time allowed by rule of court of Trin. 52 G. 3. be exceeded. i B. Moore, 125. — 4. A fine was varied, by omitting a conusor, whose acknowledgment had been incorrectly taken. 5 Taunt. 249. – 5. A fine was permitted to pass, where the Christian name of one party had been interlined after acknowledgment by another party. 6 Taunt. 586.- 6. A fine was permitted to pass as to all the parties as one fine, on, in addition to the original, a new præcipe and dedimus, under which the acknowledgments of all but one, who was abroad, were taken anew, to correct the misnomer of another in the first writ. 4 Taunt. 817.-7. The court will not permit a fine to pass, which is left imperfect by the attorney's laches. 5 Taunt. 305.
(t) 1. The concordia facta in curia is the complete fine; and therefore, if after the concord is acknowledged in court, one of the cognizors dies, still the cognizee may proceed with this fine, against the surviving cognizor. 5 Cruise, 84. – 2. Two brothers acknowledged the concord of a fine, and then the elder brother died; and held that the cognizee might proceed with his fine as against the surviving brother, and take out his writ of covenant accordingly; the death of his elder brother being no impediment; for the acknowledgment of each person was good against himself, and should operate for as much as he could pass. Hob. 329. - 3. A fine was stopped at the king's silver office, for want of an affidavit that the parties were living, a year having elapsed since
All fines agreed to be levied are executed, or executory. Vide West, Symb. 5. b. 2 Inst. 513. (u)
A fine executed is sur conusance de droit come ceo, &c. Upon a release, or upon a surrender. Vide West, Symb. 6. 2 Inst. 513.
A fine sur conusance de droit come ceo que il ad de son done is so called from those words in the fine, (x) and it is the most high and powerful fine. (y)
Antiently it had only these words recogn' maneriam, &c. esse jus ipsius A. ut illa quæ iidem A. & B. habent de dono (-) prædicť D. 2 Inst. 513.
Afterwards these clauses were added, et remiserunt et quiete clam', &c. and the clause of warranty. 2 Inst. 513.
A fine sur conusance de droit come ceo, fc. grants the fee (a) to the conusee (6): and therefore there cannot be a remainder over upon such fine. Pl. Com. 248. a.
But it grants the fee only by implication, which may be controuled by an express limitation for life. R. 1 Sal. 340. (c)
If the præcipe entered in the concord be duobus messuagiis, where the writ of covenant is duobus toftis, it is not material : for the concord rethe acknowledgment; and one of the cognizors being dead, application was made to the court that he might be struck out, and that the fine might pass as to the other cognizor. This motion was denied ; but a rule was made that the surviving cognizor should shew cause why the fine should not pass generally as to all the parties, and upon affidavit of service, the rule was made absolute. Barnes, 215.
(u) Vide infra, (E 15.)
(ix) The form of this fine is, And the agreement is such, to wit, that the aforesaid A. hath acknowledged the aforesaid manor, &c. to be the right of him the said B., as that which the said B. hath of the gift of the aforesaid A.; and that he hath remised and quit-claimed from him the said A. and his heirs, to the aforesaid B. and his heirs for ever. 5 Cruise, 104.
(v) And it is the best and surest kind of fine; for the deforciant, in order to keep his supposed covenant with the plaintiff, of conveying him the lands in question, and at the same time to avoid the formality of an actual feoffment with livery of seisin, acknowledges in court a former feoffment or gift in possession to have been made by him to the plaintiff; so that it is rather an acknowledgment of a former conveyance than a conveyance originally made; for the deforciant acknowledges, 'cognoscit,' the right to be in the plaintiff or cognizee as that which he had de son done, of the proper gift of himself, the cognizor. 2 Comm. 352.
() Formerly lands purchased of different persons were allowed to be comprised in the same concord; and every vendor warranted against himself and his heirs only; but by an order of Lord Chancellor Hatton, reciting that by fines of this sort her majesty was defrauded of the profits of her post-fines, and of the seals on writs, and the chancellor and others lost their fees; the cursitors are authorised to stay a writ where there is more than one demandant, and one deforciant, except coparceners, joint tenants, and tenants in common. But the cursitors will permit two separate purchases to be comprised in one fine, on an affidavit that the value of both together, does not exceed two hundred pounds. Wils, on Fines, 47. 5 Cruise, 87.
(a) Vide supra, Estates by Grant, (A 2.) in notis.
(6) 1. The object of fines being to settle the possession, not only for the present, but for ever, in the most certain and secure manner, the judges never allow lands to be limited in the concord of a fine to two persons and their heirs, but always direct them to be limited to the two persons, and to the heirs of one of them. 5 Cruise, 86. Bro. Abr. tit. Fine, 7. Co. Read. 8. 5 Rep. 38. b. 2 Taunt. 198. - 2. The necessity of the case however requires that where the lands comprehended in a fine are held in gavelkind, this rule should be dispensed with ; and therefore when a fine is levied of lands of this sort, the judges will permit them to be limited to two or more persons and their heirs. 5 Cruise, 86. Rob. Gav, 132.-3. For the reason before given, a warranty ought 'not to be allowed in the concord of a fine from two persons and their heirs. Co. Read. 3. -- 4. But a warranty has been allowed from three persons and their heirs, where the lands were held in gavelkind. Rob. Gav. 132. (c) Vide supra, Estates by Grant, (A 2.) in notis.
fifty acres has nee, who render as to the fifty fifty acres
lates to the writ of covenant, and the dedimus potestatem, and entry of the præcipe upon the concord is more than is necessary, and ought to be a rehearsal of the substance of the writ; but if it be variant, it is idle. R. 2 Cro. 78. (d)
If a dedimus potestatem and concord upon it be five years before the writ of covenant, where by the foot of the fine it is said, hæc est finalis concordia capta 7 Jac., it shall be good : for it shall be intended another concord according to the foot of the fine. R. by 2 J. 2. Cont. Jon. 420. (e)
(E 10.) Fine upon a release. A fine upon a release is, when he in reversion releases by fine his estate to his lessee for life, or years.
If a joint-tenant releases by fine to his companion. 2 Cro. 696.
If a donor of fifty acres has other fifty acres in K. and levies a fine of one hundred acres to the donee, who renders one hundred acres to the donor for life, &c. this operates as a release as to the fifty acres contained in the gift, and the render operates as to the other fifty acres only : for it shall be restrained to the quantity intended by the deed declaring the uses. Poph. 104.
But a fine does not operate by way of release, where the conusee has no estate of freehold, either in remainder, or reversion, or there is no privity between the conusor and conusee. Ray. 146. Vide Release, (B 3.)
(E 11.) Fine upon a surrender. A fine upon a surrender is, when a lessee for life, or pur auter vie, tenant in tail after possibility, tenant by the curtesy, or in dower, by fine surrender their estates to him in reversion.
(d) 1. The concord comes in lieu of the sentence which would have been given in case the parties had not compounded the cause; and is therefore considered as exactly similar, and attended with the same consequences, as a judgment in an adversary suit. The cognizance must therefore be made of those things only, and to those persons only, who are named in the original writ, on which the fine is levied; because the cognizance being in the nature of a judgment, binds only those persons and things which are judicially before the court. 5 Cruise, 85. Co. Read. 6. 2. This rule, however, admits of a few exceptions; for a remainder may be limited in the concord of a fine, to a person not named in the original writ; in the same manner as a remainder may be limited, in a deed, to a person who is not a party. Ibid. — 3. And if a præcipe be brought against a tenant for life, and upon his default the person in reversion is received, he may levy a fine of his reversion to the demandant, although he is not named in the original writ. 5 Cruise, 85. Co. Read. 11. – 4. So if a fine is levied by a vouchee to the demandant, or by a demandant to the vouchee, it will be good; but a fine levied by a vouchee to a stranger is void. 3 Rep. 39. b.
(e) 1. It was formerly the practice for the cognizor to make the cognizance, that is, to acknowledge the concord of the fine, before any original writ had been sued out; and this custom so far prevailed, that the judges uniformly supported such fines; but in all cases of this kind, an original writ must have been sued out and made returnable on some day previous to that on which the concord was acknowledged: a licentia concordandi must also have been obtained; for these circumstances were absolutely necessary to complete the fine. 5 Cruise, 84. Hob. 330. — 2. The practice of acknowledging the concord of a fine before the writ of covenant was sued out, was often productive of great inconvenience and irregularities; which are now prevented by a rule of C. B., by which it is ordered that every fine, at the time of signing the judge's allocatur thereon, shall have the writ of covenant sued out and annexed thereto. 5 Cruise, 84. i H. BI. 526.-3. Lands situated in different counties may be contained in the same concord, though there must be several writs of covenant. Dyer, 227. 2 Inst, 512, a.
A fine upon a surrender is in the form of a fine (f) sur conusance de droit come ceo, &c. saving that they add the words sursum reddidit, and omit the warranty.
(E 12.) Sur conusance de droit tantum. Fines executory (g) are a fine sur conusance de droit tantum (h), or, sur grant et render. Vide West, Symb. 6.
A fine sur conusance de droit tantum omits the clause come ceo que il ad de son done. (i)
(E 13.) Sur grant et render. A fine sur grant et render, is (k) when by the same fine the conusee renders the estate granted, or part of it, or a rent out of it, to the conusors, or some of them.
And this fine shall be always levied upon a fine sur conusance de droit come ceo, &c.; for, if it should be levied upon a fine executory, the conusee has nothing which he can render to the conusor, till execution. Vide West, Symb. 6.
Or it may be upon fines upon a release, or surrender : for those are executed.
The render ought to be of a thing issuing out of the same land con(f) Vide infra, (E 12.) in notis. (g) Vide infra, (E 15.) in notis.
(h) Or upon acknowledgment of the right only, without the circumstance of a preceding gift by the cognizor.
(c) 1. This species of fine is generally used to pass a reversionary interest, which is in the cognizor; for of such reversions there can be no feoffinent or grant supposed; as the freehold and possession, during the particular estate, is vested in a third person, 5 Cruise, 105. – 2. It may also be used by a tenant for life, in order to make a surrender of his life-estate to the person in remainder or reversion; and it is then called a fine upon surrender. Co. Read. 5. — 3. The form of this fine is, And the agreement is such, to wit, that the aforesaid A. hath acknowledged the aforesaid tenements, &c. to be the right of the said B.; and he hath granted for himself and his heirs, that the aforesaid tenements which W. R. and M. his wife hold for the term of the life of G. of the inheritance of the said A., on the day on which the agreement was made, and which, after the decease of him the said G., ought to revert to the said A. and his heirs, shall, after the decease of the said G., entirely remain to the said B. and his heirs for ever. 5 Cruise, 106. - 4. It passes an estate in fee-simple without the word "heirs.' Ibid. Co. Read. 6. — 5. And seems to have been, the most antient species of fine, for the demandant was obliged to follow the rules of law, and sue out a writ of possession; but when it became usual to procure a feoffinent of the lands first, a writ of possession was unnecessary; which probably gave rise to fines sur cognizance de droit come ceo, &c. Ibid. — 6. If there be tenant for life, remainder for life, and the first tenant for life levies a fine to the person in remainder, sur cognizance de droit tantum, it will operate as a surrender of his estate for life; because by this fine the tenant for life acknowledges all the right which he had in the lands to belong to the person in remainder. Co. Read. 3.
(K) 1. It is a double fine, comprehending the fine sur cognizance de droit come ceo, and the fine sur concessit. 5 Cruise, 107. – 2. It is used in order to create particular limitations of estates; whereas the fine sur cognizance de droit come ceo, fc., conveys nothing but an absolute estate, either of inheritance, or at least of freehold; for in this fine the cognizee, after the right is acknowledged in him, renders or grants back to the cognizor some other estate in the lands. 5 Cruise, 107.— 2. The form of the fine is, And the agreement is such, to wit, that the aforesaid A. hath acknowledged the aforesaid tenements to be the right of him the said B., as those which the said B. hath of the gift of the aforesaid A. and those he hath remised and quit-claimed from himself the said A. and his heirs for ever (warranty from the cognizor); and for this acknowledgment, remise, quit-claim, warranty, fine, and agreement, the said B. hath granted to the said A. the aforesaid tenements, &c. And this he hath rendered to him in the same court, to hold the said tenements to the said A. and the heirs of his body.