*P. 5.

4. The manner and order of levying of a fine.

also is either single, which is such a fine by which
an estate is granted to the cognisee and nothing
granted or rendered back again to the cognisor by
the cognisee. Or it is double, which is such a fine
as doth contain a grant, and render back again
either of the land* itself, or of some rent, common
or other thing out of it to the cognisor for some
estate, [or even an estate in fee] limiting thereby
many times remainders to strangers which be not
named in the writ of covenant; which also is some-
times with reservation of rent, clause of distress,
and grant of the same over (19); [and such new
fee in the grantor will be a new seisin, descendible
from him, as the first purchaser, although prior to
the fine, he was seised by descent.] (20)

The manner and order of suing out or levying of
a fine is thus (21):-First, there is an original writ
sued out, and this may be a writ of mesne, warran-
tia carta, de consuetudinibus et servitiis, or any
writ of right, (for upon these or any other writ
whereby land is demanded or may be recovered, a
fine may be levied), [1 Cruise, 18. 1 Prest.
Convey. 268;] but the most usual writ whereupon
a fine is levied is a writ of covenant (22). And
while this writ is depending, (for howsoever it be
the common practice to take out a dedimus potesta-
tem, and have the conusance of a fine before any
original writ be sued forth,) yet the original writ
is always supposed in law to precede the dedimus
potestatem, and therefore doth and must evermore
bear teste before it; [or on the same day as the
writ of covenant,] or else it is erroneous (23).

Experientis, levandi Fines 18 E. 1. West. H. 7. 9 Bro. Sym. ut supra. Fine 116.

Stat. de modo

(19) And this fine, sur done, grant et render, operates as a feoffment and re-enfeoffment, and is the only fine which gives a new estate. See Essay on Fines, 49. The cases there, and post, 18.

(20) See further, as to the different kinds of fines, West. Symb. part 2. § 19. Vin. Abr. Fine, (N. b.) For the nature and use of a fine sur concessit, which is a fine executory, and commonly used to grant estates for lives or years, see Chet. 5. 2 Bl. Com. 353.

(21) The curious reader will find the ancient manner of levying a fine in Glan. 1. 8. c. 2, 3. (22) See the form of it in Wils. 4. If there is no original writ sued out the fine is not void, but voidable only by writ of error, as is the case also where there is an original writ, and the fine is levied not only of that which is contained in the writ, but also of some other things not contained in the writ. 2 Inst. 513. Vin. Abr. Fine, (F. 2.) 3 Co. 5. Plow. 394. If the sheriff happens to be one of the deforceants, the writ must be directed to the coroner, otherwise it is not good. Cro. Eliz. 300.

(23) Accordingly Cro. Eliz. 740. Goburn v. Wright. But it seems, if the writ of covenant and De. po. both bear date on the same day, it is not error. Arundel v. Arundel, ibid. 677. S. P. Herbert v. Binnon, Roll. Rep. 223. Essay on Fines, 61. But it is said the writ of De. po. shall be good, although it bear test before the writ of covenant, and though

After the original writ sued forth, there is a præcipe,
which is the tituling of the writ whereupon the
fine is levied, [which is the summary of the writ
of covenant,] and the concord and agreement of
the parties, both which are fairly written, (and
that most commonly in parchment :) after this, the
party or parties that is or are to knowledge and
levy the fine is or are to come in person before
him or them that have power to take the same
conusance; who are to take notice of the per-
sons (24), [viz. observe, for the purpose of form-
ing a judgment,] that if there be any woman that
hath a husband amongst the conusors in the fine,
they do examine her whether she be willing and
do it freely without compulsion of her husband (25).
After this, all the parties that are to levy the fine
are to declare themselves before the judges or
commissioners (having power to take the same
conusance) to be willing to pass their right in the
lands according to the agreement, and to subscribe
their names or marks to the concord: and if it be
taken by a special dedimus potestatem, it is to be
returned and certified under the hands and seals of
the commissioners into the court of Common Pleas,
that it may be there recorded and finished. [And
now by rule of court, one of the commissioners
must make an affidavit authenticating the age, &c.
unless there be special circumstances to induce the
court to dispense with the rule. The rules and ex-
ceptions are collected by Mr. Cruise on Fines, p. 84.
But though the writ of dedimus potestatem specifies in
terms, that the return of the writ should be under
the seals as well as the hands of the commissioners,
yet, in practice, the commissioners do not affix
their seals to the return.] And there the party
conusee is first to compound with the king for his
licence, for which he is to pay the king's silver,
and thereof he is to have an entry on the back of
his writ of covenant; and then he is to have it

it recites the writ of covenant to be depending. See 1 Roll 223. Cro. Eliz. 677. 3 Com. Dig. 350. Contra, Cro. Eliz. 740.—Note. In the several editions of Cro. Eliz. the number of the pages from 457 to 472 is repeated.

(24) That the conusors are of full age, sound mind, and out of prison. 2 Bl. Com. 351. (25) In what cases a feme covert shall be examined, see Vin. Abr. Fine, (F. M.) and Co. Lit. 353. a. How she shall be examined, and when she shall be barred, though not examined, Chet. 52. When a year and a day have elapsed from the acknowledgment of a fine, 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. Barnes, 215.

*P. 6.

5. The nature,

a fine.

inrolled by the custos brevium; and upon this roll
the proclamations are to be indorsed; after this, it
is to be brought to the chirographer, who is first to
make that note thereof that is called the note of
the fine (26): and hereupon if it be a remainder,
reversion, rent or seigniory whereof the fine is le-
vied, the writ of quid juris clamat, per quæ servitia,
quem redditum reddit, as the case requireth, must
be sued forth (27). [See these writs and comments
on them, in Booth's Real Actions, 250.] And after
this, the chirographer is to enter the fine of record
to ingross it, and to make and to deliver the inden-
tures thereof unto the conusee (28), and if it be a
fine with proclamations, it is to be proclaimed
openly in the court of Common Pleas once every
one of the four terms next after the ingrossing of
it, (and it was to be proclaimed within the county
where the land did lie at every assizes and sessions
the next year after the ingrossing of it, but this it
seems is not necessary now) and the next term
after the ingrossing of it the contents thereof are
to be recorded in a table (made for that purpose)
to be set up in the court of Common Pleas at
Westminster in an open place all the term time;
and so also at every assizes. The fine may also be
inrolled and exemplified.

A fine is a record as of great antiquity (29), so use, and fruit of of a high nature, great force, and much credit and esteem; and it is now become and serves for a formal conveyance of land, and one of the common assurances of the kingdom; for by this means a man may convey his land to another in fee simple, fee tail, for life or years, with reservation of rent also. It is therefore called a feoffment of record; [or the acknowledgment by record of a feoffment;] for it doth countervail [that is, is equivalent to] a feoffment with livery of seisin in

(26) Which must be inrolled in the proper office, according to the statute of 5 H. 4. c. 14. (27) By the couusee against the tenant to compel him to attorn; but by the stat. of 4 & 5 Ann, c. 16. § 9. fines are good, without attornment; and there is no occasion for suing out those writs. Wils. 44.

(28) Though it is usual to complete the indentures of the fine immediately on its being levied, yet there may be many years between the levying and ingrossing a fine. Plow. 366. Chetw. 13.

(29) Fines at the common law were frequent before the accession of Will. the 1st. 2 Inst511. Vin. Abr. Fine, (A. 1, 2.) And are supposed to have been coeval with our courts of record. See Chet. 2. As to the origin and antiquity of fines, see Essay on Fines, ch. 1.

the country, and it concludeth all that the feoff-
ment doth; [under those circumstances in which
a feoffment might have been made; and therefore
a fine by tenant in tail in possession, operates by
discontinuance of the seisin; and by a tenant for
life seised of the immediate freehold without hav-
ing the first estate inheritance, and attempting to
convey the fee, operates to pass a fee by wrong or
disseisin, and devests the remainder and reversion.
Goodright v. Forrester, 1 Taunt. 578.] and worketh
further of his [its] own nature, and it is indeed for
many purposes the best and most excellent assur-
ance of all others; for by the ancient common law
it was so high a bar and of so great force, and of
so strong a nature in itself, that it did conclude
and bar not only such as were parties and privies
thereto and their heirs, but all others of full age,
out of prison, of good memory, and within the
four seas the day of the fine levied, if they did not
make their claim within a year and a day (30).
And it is still of that [or like] force, [Helps v.
Hereford, 2 Barn. & Ald. 242. Sir W. Jones,
456.] albeit it be somewhat enfeebled by some
statutes, that either it passeth all the right and
interest, [viz. estate, if any, or collateral interest
as rent; or right or title, if the seisin be in the
conusee] of the conusor to the conusee, or else
it worketh by way of extinguishment [of rents,
or of title to the seisin] and estoppel; [when the
conusee has not any seisin; and the conusor has
an expectancy as heir, or may acquire a future
title,] and doth perpetually bar the conusor and his
heirs of all present and future right and possibility
of right or other collateral benefit to the thing
whereof the fine is levied. And if it be a fine
with proclamations, it doth in time become a per-
petual bar to all others also, that have right, except
they do take care to prevent the bar by their
claim, action, or entry, within five years after the
proclamations ended (31), [last proclamation; and
their right to the possession commences]. And it

(30) And the stat. of 18 Ed. 1. says, that on these accounts such solemnity is required in passing a fine. 2 Inst. 513.

(31) The fine, with proclamations, if the conusee dies before the proclamations are completed, his heir may, if he pleases, cause them to be made. Wakefield v. Hodgson, Cro. Eliz. 692 & 708.

6. What shall be said a good fine,

or not: and how

the persons there

by, or to whom a

may be conusors

barreth intails peremptorily, whether the heir do claim within five years or not, if he make his claim [present or future, vested or contingent in estate or in title or possibility] by him, [vis. title by or through him] that levied the fine (32). Any person male or female, body sole, or corporate, that hath capacity to grant, or is able to be a 1. In respect of grantor by a deed, may levy a fine and be a conuund their sor therein; but there are certain persons prohibited capacity. And by law, which the judges or commissioners that fine may be le- take the conusance of fines, ought not to admit or vied, and who receive; and yet if they do admit them, and a fine or conusees. And be levied by such persons, the fine is good and by what names. unavoidable, fieri non debet sed factum valet; and of this sort are madmen, lunatics (33), villains, idiots, men that have the lethargy, doting old persons that want discretion, drunken men, and men that are forced to it by threatening, imprisonment, or the like: also such as are born blind, deaf and dumb, but a man that becomes so accidentally may be received and ought not to be refused. Also Persons attaint. persons attainted of felony or treason ought not to be received to levy a fine, but such persons being admitted to levy a fine, the fine will be good against all persons but the king and the lord of whom their lands whereof the fine is levied, are held, for their times (34): but persons waived or outlawed in personal actions only, ought not to be refused (35). And the king, lord, &c. may be benefited by such fine; since the fine may bar an intail, and thus exclude the issue: and though fines

*P. 7.

Non sana memoria.

(32) It is grown at this day to be the most common assurance or conveyance, and is the strength of almost every man's inheritance. Wils. on Fines, 2.

(33) This is true strictly at law; but where a man conveyed lands by deeds, fines and recoveries, under value, and by an inquisition was found to be a lunatic, the purchase was set aside, and the purchaser only allowed the money he had actually paid. 2 Vern. 678.

(34) See the case of Stevens v. Winning, 1 Wils. Rep. part 2. p. 219; where on a special verdict in C. B. the question was, whether a tenant in tail having committed murder, could afterwards, and before conviction, levy a fine, and bar the next heir in tail. The court inclined to think he could, but allowed a second argument, which the reporter never heard came on.-As to conveyances by felons, and whether attainder in a premunire shall have relation to the time of the offence, or only to the time of the judgment, to cause a forfeiture of lands. See Cro. Car. 172. Grosse v. Gayer, Sir Wm. Jones, 217.-Forfeitures for treason and felony arise only upon attainder, but they have relation to the time of the offence committed, so as to avoid all intermediate sales and incumbrances. 4 Bl. Com. 381 & 386. 7 ed.

(35) Fine levied by an outlaw in a personal action before seizure is good, and the conusee shall hold the land against the king; but if seizure be made before the fine is levied, it is otherwise. Windsor v. Saywell, 1 Lev. 33.