tained in the fine, and not of a thing collateral, or of another nature, which is not issuing out of it, nor incident to it. 2 Inst. 514. (7)

It ought to be some party to the fine, if it be not by way of remainder. 2 Inst. 514. 4 Leo. 26.

So a render shall be only of the lands granted by the fine, and intended to be passed by it, though the parcels comprised are sufficient for more lands: and therefore, if a donor of 50 acres in K., having other 50 acres there in fee, by fine grants 100 acres in K. to the donee, who renders 100 acres to the donor for life, &c. nothing shall be rendered but the 50 acres in fee. R. Poph. 104. (m)

And a fine sur grant et render operates as a feoffment and refeoffment. R. 1 Sal. 337. (n)

But a render shall be transposed by construction, to make it effectual: as, if a fine be to D., who renders a rent out of it, &c. to A. and B. and the heirs of B., and afterwards renders the tenements out of which, &c. to A. and B. for life, remainder to C. in tail, remainder to the heirs of B.; it shall be a good render of the rent. 1 Leo. 255. Cro. El. 226. (0)

So, if a render be of a remainder to A. upon condition (p), and for default, &c. to B.; it shall be good. Pl. Com. 34. b. (q)

(1) A rent cannot be reserved on a fine which is executed; because, as the cognizance supposes a preceding gift, the cognizor cannot reserve to himself any thing out of the lands whereof he has already conveyed away the absolute property; so that the reddendum comes too late, when a precedent absolute gift, without any such reservation is before acknowledged. 5 Cruise, 105. Rol. Abr. tit. Fine, O. pl. 14.

(m) 1. In a fine of this sort, the render must be made of the lands demanded in the original writ, or of something issuing out of those lands. 5 Cruise, 108. Co. Read. 11. 2 Rol. Abr. 15.-2. Thus, if the cognizance be made of the manor of Dale, the cognizee cannot make a render of the manor of Dale; or if the cognizance be made of the third part of a manor, the render cannot be made of the whole manor; because the court can only determine the right of that about which the parties contended, and which was demanded in the original writ. Ibid.-3. But if the cognizor acknowledges all his right in the land to be in the cognizee, and the cognizee in return grants and renders to the cognizor a particular estate in the land, or a rent, or common, out of it, the render is good; because the determination entirely refers to the things in dispute; one party taking the ultimate property in the land, and the other a particular estate in it: all which is comprehended in the original writ. Ibid.-4. It follows, from the same principle, that the lands must be rendered, in the first instance, to some person named in the original writ. But an estate may be rendered, by way of remainder, to a person not named in the original writ, as well as in any other kind of concord. Ibid.

(n) 1. And therefore gives a new estate. - 2. But as the cognizee has only a seisin of an instant of that which he renders, it will not entitle his wife to dower.

(0) This species of fine being generally used to create particular limitations of estates, is construed rather as a private deed or conveyance, than as a judgment in an adversary suit; and therefore it need not have such a precise form as other fines. Touch. 18. 5 Rep. 38.

(p) 1. The judges ought not to permit a fine to be levied upon conditions; nor should a saving or exception, or a clause of re-entry, be allowed in a fine. But if a fine is actually levied to two persons and their heirs, or with a warranty from two persons and their heirs, or upon condition, with a saving, exception, or clause of re-entry; such fine will notwithstanding be valid, upon the principle that fieri non debuit, sed factum valet, et facta tenent multa quæ fieri prohibentur. 5 Cruise, 87. 2 Rep. 74. b. 5 Rep. 38. b. 12 Rep. 125.-2. And Plowden has given some instances of fines levied on condition, which were allowed to be good. Plowd. 34.

(q) 1. If lands be rendered by fine to a person and his heirs, the lands are thereby immediately bound. And though the person, to whom the render is made, die before execution, yet his heir will have the lands; for the fine having been levied in the lifetime of the parties, the lands are so bound by it, that it cannot be altered. 5 Cruise, 110. 5 Rep. 156. a.-2. And a declaration of the uses of a fine of this kind, which is contrary to the grant and render, is void. Clayt. 94.

So,

(E 14.) Sur concessit.

So a fine may be sur concessit (r), when tenant for life, or for years grants his estate.

So, if he in remainder grants his estate to tenant for life. 2 Cro. 40.

So, if A. and B. levy a fine to C. who renders to B. in tail, and if he dies without issue, quod tenementa integre remanebunt to A. this operates as a fine sur concessit of the reversion to A. R. Cro. El. 727. 792.

A fine sur concessit grants only that which the party may lawfully grant; and does not devest the estates of others in remainder. Semb. per 2 J. 2 Lev. 154. (s)

(E 15.) How a fine executory shall be executed.

A fine executory may be executed by entry, or by writ. Vide West, Symb. 57. Vide Execution, (A 6.) (t)

For the conusee may enter into the lands comprised in the fine. Vide West, Symb. 57.

Or, within a year, may have (u) an habere facias seisinam. Vide West, Symb. 57. (x)

And

(r) 1. Which is where the cognizor, in order to make an end of all disputes, though he acknowledges no precedent, right, or gift, grants to the cognizor an estate de novo, by way of supposed composition; which may be either an estate in fee, in tail, or for life, or even for years. 2 Comm. 353.-2. The form of this fine is, And the agreement is such, to wit, that the aforesaid A. hath granted to the aforesaid B. the aforesaid tenements, &c. to hold for, &c. 5 Cruise, 106.

(s) 1. A fine sur concessit will not be allowed to be levied for the purpose of passing such estate as the party may have, by the description of all and whatsoever he hath in the tenements. 2 Taunt. 198.-2. A man and his wife, being seised of different estates in different hereditaments, and intending to pass them all, acknowledged the concord of a fine sur concessit, to hold the said tenements, with the appurtenances, to the cognizee and his heirs, for and during all the term, and other estates, and all and whatsoever else the said S. and A. had in the tenements aforesaid, with the appurtenances.' The chirographer of fines refused to make out the indentures, alleging that the limitation must be certain, that is, to the cognizee and his heirs for ever, or for the life of the tenant, or pour auter vie; and the court refused to permit the fine to pass. Ibid. (t) 1. Whenever a judgment is obtained, whether in an adversary or an amicable suit, the next step is to procure the execution of it, by obtaining the actual possession of the thing recovered; and for this purpose the law has provided, that in all real actions, the person who recovers shall have a writ of habere facias seisinam, directed to the sheriff of the county in which the lands are situated, commanding him to deliver the possession, according to the judgment. 5 Cruise, 101.-2. Fines having at all times been considered as judgments, a writ of habere facias seisinam always issued, to put the party who acquired the lands by a fine, into possession of them. When fines became common assurances, the purchaser, in order to avoid the trouble and expense of suing out a writ of possession, had in many instances livery of seisin given him in the country, and for his further assurance obliged the vendor to covenant that he would levy a fine to him; but as the purchaser was already in possession, no writ of habere was necessary. Ibid.-3. This practice gave rise to the distinction between fines executed and fines executory. A fine executed, immediately transferred the possession from the cognizor to the cognizee, who might therefore enter on the lands which had been conveyed to him by the fine, as soon as it was levied. 5 Cruise, 102. Co. Read. 2.

(u) 1. If a fine executory is levied of a reversion, depending on an estate for life or years, or of a seignory, or any thing which lies in grants, they will pass immediately; because it would be impossible to give actual possession of them. 1 Rep. 97. a. — 2. And since the statute of uses, writs of possession are never sued out when fines are levied to uses; for the statute executing the possession to the use, the cognizee is immediately in possession without attornment. 5 Cruise, 103. Booth, 250. Pigot, 49. 6 Rep. 68. a.-3. And by the 4 & 5 Ann. c. 16., attornment after a fine is become unnecessary. 4. So that writs of possession are now totally disused. Ibid. (a) If the party to whom the estate was limited by a fine executory, was in posses

And after the year, a scire facias. Vide West, Symb. 58.

A scire facias for executing a fine may be brought by the issue of tenant in tail. West, Symb. 58.

Or, by him in remainder. Co. Ent. 632. b.

Or, by the heir of him in remainder. West, Symb. 59. a. 625. 630.

Co. Ent.

To a scire facias for executing a fine, the defendants may plead quod partes finis nihil habuerunt. West, Symb. 59. a. Co. Ent. 631. b. Vide post, (H1.)

Quod partes finis habuerunt only for life. Co. Ent. 633. a.

So, to a scire facias for executing a fine by the heir, the defendant may plead, that the plaintiff is a bastard. West, Symb. 63. b.

That another was heir, cujus statum ipse habet. West, Symb. 62. a. Until a fine be executed, nonclaim to bar any stranger does not begin. Pl. Com. 357. b.

(E 16.) The note, and foot of the fine.

After conusance, and before the ingrossing of a fine, the chirographer (y) makes a note of the fine, which contains an abstract of the original and the concord. (z) 5 Co. 39. a.

The office of chirographer is appointed by the king's patent. Dy. 176. a. Vide Courts, (C 2.)

If the writ of covenant with the dedimus potestatem be returned, the concord made, the king's silver paid, and the note of the fine made, the fine is then complete. Semb. Pl. Com. 431. (a)

So, by the st. 5 H. 4. 14. writs of covenant, and other writs whereon fines be levied, with the dedimus potestatem if any be, the knowledges, and notes of the same, before they be drawn out of the common bench by the chirographer, shall be inrolled of record by the chief clerk (viz. the custos brevium) for the old fee of 22d. To the intent, that if the notes in the custody of the chirographer, or the fines, be imbezilled,

sion at the time when such a fine was levied, he need not have sued out a writ of habere facias seisinam, for in that case the fine would enure by way of extinguishment. Touch. 4.

(y) Fines are to be carried to the chirographer within fourteen days after passing the king's silver office. 4 Taunt. 601.

(z) 1. It is only a docquet taken by the chirographer, from which he draws up the indenture. - 2. It is sometimes taken, in the old books, for the concord. 5 Cruise, 87. (a) 1. A fine, says Lord Coke, is said to be levied, when the writ of covenant is returned, and the concord and the king's silver duly entered; this maketh the land to pass, and from this shall the year and day be accounted, albeit the fine be engrossed afterwards. 2 Inst. 517.-2. When the mode of levying a fine by first acknowledging the concord, the suing out an original writ, and paying the king's silver, was allowed, a different manner of expressing the rule laid down by Lord Coke was adopted; for the fine was said to be completed upon the entry of the king's silver, provided it was previously acknowledged; and if any of the cognizors died before the remaining parts of the fine were perfected, still the fine would be valid. 5 Cruise, 95.-3. A motion was made to stay the passing of a fine, which was acknowledged by an infant of thirteen years old. The court said, that as the king's silver was paid, it was gone too far; but they assigned the infant a guardian, who had instructions to bring a writ of error to reverse it. 5 Cruise, 76. 1 Freem. 78.- 4. In consequence of the rule of court already stated, by which it is required that the writ of covenant shall be sued out before the concord is acknowledged, it may now be laid down, that a fine is completed when the concord is duly acknowledged.

recourse

recourse may be to the said roll to have execution in the same manner as if the fines were not imbezilled. Vide post, (G. 3.)

And this is called the foot (b) of the fine.

Which contains the day, year, and before whom levied.

(F) Quid juris clamat, &c.

5 Co. 39. a.

If a fine be of a reversion or remainder, if the particular tenant refuses to attorn, a quid juris clamat issues, before the ingrossing, out of the record remaining with the custos brevium. West, Symb. 47, &c. Pl. Com. 431. b.

So, if a fine be of a rent, and the terre-tenant refuses attornment, a quem redditum reddit issues. West, Symb. 52. b.

So, if a fine be of a seigniory, manor, &c. a per quæ servitia. West, Symb. 53. a.

So, though a fine be by one parcener, of her reversion to the other. R. 3 Leo. 6.

If the conusee dies pending the quid juris clamat, his heir shall have a new writ. Cro. El. 693.

But a quid juris clamat does not alter the fine, though the defendant, has judgment for him.

And if he pleads to part that he himself has the fee, and attorns for the residue; the fine may be ingrossed for the whole. R. Cro. El. 693.

By the st. 23 El. 3. no attornment on a fine shall be entered on record, except the person, mentioned to attorn, appear in court in person, or by attorney warranted by hand of the judge, or justices of assise, on a writ of quid juris clamat, quem redditum reddit, or per quæ servitia, as the case requires: and if entered, it shall be void, without error, &c.

But now, by the st. 4 & 5 An. 16. all grants and conveyances thereafter to be made of any manors or rents by fine or otherwise, or of the reversion or remainder of any messuages or lands, shall be good and

(b) 1. Chirograph, or indenture, 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 and engrossed at the chirographer's office, and delivered to the cognizor and cognizee; beginning with these words: This is the final agreement,' &c. and then stating the whole proceeding at length. Thus the fine is completely levied at common law. 5 Cruise, 88.- 2. A fine is said to be engrossed when the chirographer makes out the indentures, and delivers them to the parties. But it is not absolutely necessary that a fine should be engrossed, provided the concord be recorded; for Lord Coke observes, that a fine is a perfect record before it is engrossed. And a fine may be engrossed at any time after it is levied. Ibid. Co. Read. 1. 3. Sir John Brome, in 33 H. 8., acknowledged a fine of certain lands. The king's silver was entered, and the cognizance taken; and in 29 Eliz. the person who claimed under this fine came into court, and prayed that the fine might be engrossed, it appearing upon examination that the party to whom the fine was levied was seised after the fine, and had suffered a common recovery of the land, which had been enjoyed according to the said fine. The court ordered the fine to be engrossed. 5 Cruise, 88. 4 Leon. 96. Dyer, 254. a. — 4. The record of the fine which remains in the possession of the chirographer, is the principal document; so that if there is any difference between it and the record which remains with the custos brevium, that which continues with the chirographer is considered as the true record. 5 Cruise, 88. 3 Leon. 183. Godb. 103.5. The stat. 23 Eliz. c. 3. s. 6., enacts, that the chirographer shall every term write out a table of the fines levied in each county in that term, and shall affix it in some open part of the court of Common Pleas, all the next term; and shall also deliver the contents of each table to the sheriff of each county, who shall, at the next assizes, fix the same in some open part of the court.

effectual

effectual to all intents, without any attornment of the tenants of any such manors, or of the lands out of which such rent was issuing, or of the particular tenant, upon whose estate any such remainder, or reversion was dependant. (c)

(G 1.) Proclamations, &c.

By the st. 27 Ed. 1. de finibus levatis, notæ et fines in posterum levandi publicè et solemnitur legantur, et placita interim cessant; et hoc fiat per duos dies in septimana secundum discretionem justiciariorum.

By the st. 4 H. 7. 24. a fine shall be read and proclaimed in court the same term, (d) and in three terms next ensuing the engrossing, and in four several days (but now, by the st. 31 El. 2. only in one day) of the said terms, and the pleas then to cease. (e)

And by the st. (ƒ) 1 Mar. 2 Parl. 7. if the term be adjourned, a fine shall be of as good force, notwithstanding the neglect of proclamations by reason of such adjournment, as if the term had been held from the beginning to the end. 1 Leo. 84.

So, if part of the term be adjourned. (g)

If the conusee dies before proclamations, his heir, if he pleases, may cause proclamations to be made. R. Cro. El. 693.

(c) 1. Applications are sometimes made to the court of common pleas by motion, to prevent fines from being completed; on a suggestion that the parties are disabled by law from levying such fines. 5 Cruise, 94.2. And by a rule of court all persons making any complaint against. fines acknowledged by infants, feme coverts without the consent of their husbands, or persons of nonsane memory, or otherwise disabled by law to acknowledge the same, or by any person in the name of another, or by the like deceit, and obtaining rules for the staying of such fines, shall from term to term, so long as they shall expect benefit or observance of such rules, enter and continue the same rule for that term, or leave copies thereof with the custos brevium, clerk of the king's silver, and chirographer, that the same may thereby be the better taken notice of; or in default thereof, the said officers, or any of them, shall not stand farther obliged thereby. And all persons concerned in the obtaining or prosecuting such rules for the staying of such fines so levied as aforesaid, their attornies and clerks, are thereby enjoined, every term, to search and see the books and entries of fines with the clerk of the king's silver, or other officer where entries are kept for that purpose. Wilson on Fines, 96. 3. And by another rule of court, all manner of caveats and orders for the stopping any fines, shall be renewed every term, and copies thereof left with the clerk of the king's silver, for which he is to demand only his ancient fee of 5s. 4d. the term; and in default thereof, all caveats that shall not be so renewed, shall lose their force and be void. 5 Cruise, 95.

(d) 1. At the time when the judges are sitting.'-2. Hence if proclamations appear to have been made out of term, or on a Sunday, or other festival, on which the court of C. B. does not sit, the proclamations will be all void. And although the proclamations should be made on days which were dies juridice. Yet if the contrary appear on record, the proclamations will be void; as no averment can be admitted against the record. 5 Cruise, 99. Plowd. 265. Dyer, 181. b.-3. If the proclamations on a fine be certified in a certiorari by the custos brevium, and it appear by the certificate, that two of the proclamations were made in one day, a new certiorari may be directed to the chirographer; and if he certifies that the proclamations were well and duly made, the court will direct the proclamations in the office of the custos brevium to be amended, according to the proclamations in the chirographer's office: because the chirographer makes the proclamations, and is the principal officer as to them; and the custos brevium has only an abstract of them. 5 Cruise, 99. 3 Leon. 106.

(e) Since the making of this act the proclamations are indorsed on the foot of the fine, and are considered as matters of record. Dyer, 234. a.

(f) By the words of the st. 4 H. 7., if one of the three terms immediately subsequent to that in which a fine was levied was adjourned, the proclamations would have been ineffectual, and this defect could not have been supplied in the next term. Plowd. 371. (g) Dyer, 186. a. 2 Inst. 519.

VOL. IV.

Y

A fine