West. Sym. ubi supra. Sect. 30. Co. 5. 38.

lands that are prohibited to be sold by act of par-
liament, ought not to levy a fine of such land.
Also, she that hath an estate of lands of her hus-
band, or of any of his ancestors, assured to her for
her jointure, dower, or in tail, by the means of her
husband or any of his ancestors, may not [read
ought not, without the consent of the person next
in remainder or reversion, or the next in succession
under the intail to] levy a fine of this land, for if
she grant a greater estate than for her own life, this
worketh a present forfeiture (75), [and such fine
cannot discontinue the seisin, so as to turn the
estate into a right of action; but it will devest the
remainders and reversion, and render non-claim
on her fine a bar. A husband is prohibited from
discontinuing, as at common law he might have
done, the seisin of his wife; but his fine may,
under an alienation by him, become a bar by
non-claim on the fine. The husband's power of
aliening is not abridged. The effect of the aliena-
tion, as a discontinuance, is merely taken away;
and the wife and her heirs have a remedy by entry,
&c. instead of remedy by action] (76).

5.

In respect of matters touching it; and what conmay be made by

the concord and

cord or agreement

In the concords of fines some things are to be regarded in the manner and form; and some things in the matter and substance. First, when a fine is levied to divers cognisees, the right shall [ought to] be limited to one of them (77). As if a fine fine or not. be levied by A. to B. and C. it shall [read it ought to] be, Quod prædict' A. recognoverit tenementa prædict' esse jus ipsius B. ut ill' quæ iidem B. et C. habent, &c. But the King's tenant [a point for which no reason occurs] may acknowledge the right to be in divers, [and so may coparceners in gavelkind]. Secondly, the estate shall be limited to his heirs only, to whom the right is limited, and not to the heirs of all the cognisees, as thus, Quod prædict' A. cognoverit ten' præd' &c.

(75) See further of what estate persons may levy fines, Vin. Abr. Fine, (D.) Wood's Inst. 241. (76) A. seised in fee in right of his wife of a share in the New River Water. Husband and wife mortgage for 1000 years by deed without fine, reserving a peppercorn-rent; husband died, whereupon feme received the profits and paid the interest; the mortgagee brought his bill to foreclose the wife. The court held, there ought to have been a fine, it being the inheritance of the wife; that the lease expired by the death of the husband; and therefore dismissed the bill. Drybutter v. Bartholomew, 2 Pr. Wms. 127. See the edition of P. Wms. by Cor.

(77) For if a fine be levied to two persons and their heirs, the court will refuse it. 1 Leon. Rep. 62. See Essay on Fines, 311.

esse jus ipsius B. ut ill' quæ iidem, B. & C. habent
de dono prædict' A. & ill' remisit & quiet' clam' de
se & hered' suis prafat' B. & C. et hæred' ipsius
B. &c. [And yet if the right be acknowledged to
two and their heirs, there will be an informality
only, and not a vitiating error. Fieri non debuit, sed
factum valet.] The release and warranty must be
from the heirs of one of the cognisors, where there
be more than one; for in a fine from divers the fee
is supposed to be in one only, and therefore it must
be thus: Quod prædict' A. & B. cogn' &c. & ill'
remis, &c. de se & hæred' ipsius A. &c. Et üdem
A. et B. concesserunt pro se et hæred' ipsius A.
quod ipsi war' tenementa, &c. contra se et hæredes
ipsius A. in perpetuum. [The practice is mistated.
There are frequently several and distinct warranties.]
But if the fine be of lands in gavelkind, contra (78).
[This is also form and not substance. When there
are several conusors they usually warrant first
jointly for themselves and their heirs, against them-
selves and their heirs ; next, each warrants for him-
self and his heirs against himself and his heirs, and
each husband and wife warrant for themselves and
for the heirs of the husband against the husband
and wife and the heirs of the husband, and after-
wards for themselves and the heirs of the wife
against themselves and the heirs of the wife.]'
Fourthly, the concord need not to rehearse all the
special names of the things contained in the writ,
but it is sufficient to say, Tenementa prædicta, [or
other appropriate terms.
See the rule in Wood's
Conveyancing, vol. 2, p. 740] as quod prædict'
A recognoverit tenementa prædicta, &c. Fifthly,
as a concord cannot be without an original writ,
so it must pursue the original writ, and cannot be
of
any foreign thing, i. e. such a thing as is not
contained in the writ, except it be consequent
thereunto; as when the writ is of land, there may
[in a fine, sur grant & render,] be in the concord
a rent out of this land; but there may be more
things in the precipe than are named in the concord.
[And then the fine would be good for those things.
only which are in the concord, being the substantial
part of the fine; and] a concord may be with an ex-

(78) Accordingly a fine levied by three, with warranty for the heirs of them all, admitted by the court; because the land was gavelkind, and the conusors heirs by the custom Robinson on Garelkind, 132, and the authorities there..

See in West. Symb. divers examples. Perk.

Fines 108.

ception of some part; but this exception must al-
ways be of such things whereof the writ will lie and
are mentioned therein; [and the excepted parcels]
must be certainly named, and must succeed the *P. 16.
things out of which they be excepted, as præcipe A.
B. quod teneat C. D. convenc' &c. de manerio de
D. cum pertinen' (79) in C. (except' uno messuagio,
duabus acris terræ, et advocatione Ecclesiae de C,
&c.) Et est concordia, &c. quod præd' A. cogn'
tenementa prædict' cum pertinen' (except. præex-
cept.) [The instance does not correspond with the
proposition by which it is introduced; the propo-
sition refers to a general præcipe, with a concord
containing a particular exception; while in the
instance here given there is a præcipe with an ex-
ception, and a concord adopting that exception.]
And in all these and such like cases, as before,
where the concord is not formal, the judges ought
not to receive the fine nor suffer it to pass; but if
they do, and the fine be finished, it cannot after-
wards be avoided, by writ of error or otherwise, for
these faults (80.) [except so far as the concord is
not warranted by the writ.]

The concord and agreement may be made of an
estate in fee simple, fee tail, for life, or for years;
sect. 629. Broo. it may be also of divers remainders, and that to
them that are no parties but strangers to the fine.
It may be also single or double, with [a grant and]
a render back again of some estate in the same land
or some rent out of it; so as a concord may have
in it a reservation of rent, a clause of distress, or
nomine pœnæ, and a warranty.
And therefore if

118. Co. 6. 33Plow. 435.

Dyer 279.

Co. 1. 76.

*Bro. Fines106. A. levy a fine to B. sur cognisance de droit come ceo, &c. And B. by the same concord do grant and render the land back again to A. for life without impeachment of waste, the remainder to C. the wife of A. for her life, the remainder to A. and his heirs, this is a good concord; and by this device a jointure may be, and is oftentimes made to a woman (81); [and through the medium of this render, a man may take back an

(79) It is said, that all the services, royalties and appendixes, belonging to a manor, may pass well enough by the words cum pertinentiis. Brown, 29.

(80) For various precedents of præcipes and concords, see Brown, 26. Wils. 101 to 239. Wils. Form of Fines, sur conusans de droit come ceo, &c. 101. Done grant et render 185. Done de droit tantum 208. Done concessit 214. Mad, Form. Angl. 217 to 237; and for the nature and antiquity of concords, see Mad. Form. Angl. Dissert. p. 13.

(81) Accordingly verbatim. Chet. 8 & 9; and in Wood, 549.

Jointure.

Lease.

estate to himself or to his wife, or make his heirs, or heirs of his body, purchasers by that appellation. In construction of law, the conusee in the first grant, is, in the second grant, the grantor.] And if a man would have a lease for life or years made of land by fine, the lessee must by the concord acknowledge the lands to be the right of the lessor (who is seised of the land) as that, &c. And then the lessor must grant and render the same land back again to the lessee (the conusor) in the fine for life, or for a certain number of years, as the agreement is, reserving a rent with clause of distress; and this is a good fine, and a common device for this purpose, [and a very clumsy device it was, and is now obsolete in practice. Such demise for years may be made immediately, in the first instance, by a fine sur concessit from the intended lessor to the intended lessee.] But if the lessor be tenant in tail, it seems this fine will not bind the issue in tail, [unless the fine be with proclamations] (82). And yet if A. tenant in tail, and N. do by fine acknowledge the land to be the right of a stranger, as that, &c. and then the stranger, that is the cognisee, doth grant and render the land again to N. for life or years, with clause of distress, &c. and then grant and render the reversion to the tenant in tail, this is a good fine, and will bar the issue in tail also, and will likewise pass the rent, and the reversion to the tenant in tail. [In one case the original grant, and in the other case the render only, proceeds from the tenant in tail; but no reason occurs why the tenant in tail should not be bound by his grant in the render. And a fine sur concessit with proclamations, would, of a certainty, bind the issue in tail.] So if a stranger that hath nothing in the land levy a fine sur cognisance de droit come ceo que il ad, &c. to him in remainder in tail depending upon an estate for life, and the cognisee by the same fine render to the cognisor for ten years to begin at Michaelmas following, and dieth, and all the proclamations are made after his death, and the tenant for life dieth after the time the lease is to begin; this is a good fine, and so a good lease to bar the issue in tail. [This proposition, and a former proposition, being two passages

(82) Unless executed in the life of the tenant in tail. See Chet. 8, & 27.

West. Sym. ubi

of the original text, are at variance; unless re-
conciled by the addition to the text.]

If A. B. & C. levy a fine to D., and D. render supra. Co. 7. 38. the land back again to A. for life, the remainder to

1] 24 Ed. 3. 27. Bro. Fines 108.

B. in tail, the remainder to C. * in tail, and the *P. 17. remainder to a stranger in fee, this, or any such like record as this, is good (83.) And if A. and B. join in a fine of a messuage to C. and D. and to the heirs of C. who do grant and render a charge of 30l. out of the land to A. for his life, to begin after the death of B. to be paid at the feasts of, &c. Proviso semper quod præd' concessio præd' annualis reddit' 30l. non aliqualit' se extendat ad onerand' personas dict' C. & D. sed tantummodo ad onerand' dict' messuag' tota vita ipsius A. and then they grant and render the messuage to A. during the life of H. the remainder to B. in tail, the remainder to the right heirs of B. this is a good fine. But in such a fine sur grant & render, these things must be heeded:-1. None may take the first estate by the concord, but the cognisors [viz. parties to the fine] or one of them, [and yet in a conveyance or fine to uses, a stranger may take the first use.] And therefore if A. acknowledge a fine to B., and B. render and grant the land to A. habendum sibi & E. uxori ejus, and the heirs of their bodies, [for the wife is a stranger;] or if the husband levy a fine of his wife's land, and the cognisee grant and render the land to the husband and wife, [for she is not a party to the fine] this is not a good concord [so far as respects the wife; and if the first estate which is rendered be to a stranger, all the remainders will be void, as in grants at the common law, for 2) Co. 2. in the debile fundamentum fallit opus.] 2. The render of Lord Cromwel's the rent must be to one of the parties to the fine, 3] 24 E. 3. 26. and not to a stranger. 3. A man cannot [by the render grant an estate to himself, or in other terms he cannot grant to himself or to his heirs, or heirs of his body co nomine, or to his wife, or] reserve a less estate to himself than a fee; and therefore if A. acknowledge a fine to B. and B. render to A. in

case.

14 H.

4- 31.

Dyer 69. 33, 34.

(83) The estate, made by the render, cannot be made to a stranger to the fine in the first instance; but if it be made to a party to the fine in the first instance, it may be afterwards limited to a stranger by way of remainder. 2 Inst. 514. Wils. 64. 2 West. Prec. 30. Chet.7. The render may be of a thing issuing out of the same land contained in a fine, but not of a thing collateral, or of another nature, which is not issuing out of or incident to it. 2 Inst. 514.