* 17 E. 3. 52.

10 E. 4. 13.

Perk. Sect. 19. Dyes 220, and

per Just. Bridg

obtained from idiots, &c. may not be impeachable at law by averment of idiotcy, &c. or interposition of the court to vacate the fine [Lister v. Lister, Barnes, 218;] yet a court of equity may relieve against a fraud in obtaining a declaration of the uses of the fine.] Also infants ought not to be Infants, Cromp. Jur. 37. received to levy a fine, and yet if an infant be admitted to levy a fine, and he do not avoid it by writ of error, during his minority (as he may if it be not a fine sur grant & render, in tail or for life) (36), the fine will be good for ever against him and all others, [but after a trial, by inspection during his minority, the fine may be reversed after he is adult]. And if he die during his nonage, before he hath avoided it, [read and before trial by inspection,] it seems his heir can never avoid it, and yet upon this point the judges of the Common Pleas have been divided on a solemn argument, and of this Just. Dod. in 17 Jac. made a query (37). [However, at this day there does not appear to be any doubt on this point, and the court may dispense with its rules to enable infants, &c. who are trustees, mortgagees, &c. to levy fines, leaving the right to avoid the fine open to the general rules of law. The reason that the party himself cannot avoid the fine after he has attained his age of twenty-one years, is because it cannot appear by inspection, unless he was inspected during his infancy, that he was a minor. Therefore, where a minor dies before he has avoided the fine, and before trial of his age by inspection, the heir can

Car's opinion in

private.

(36) The parts within the parenthesis may be omitted. The distinction seems to be, he may avoid his grant in the fine by writ of error; and he may by disagreement, declaration, &c. avoid any estate granted to him by the fine. Sed quære, [R. P.]

(37) The law makes a distinction with respect to an infant, between matters of record, and matters in fait; the latter he may avoid either before or after he comes of full age, but the former only during his minority, because matters of record, as fines, &c. are judicial acts, and taken by a court or a judge, and therefore the nonage of the party, to avoid, the same shall be tried not by the country, but by inspection of the person of the infant by the judge, which cannot be done after his full age. The judges, it is said, may inform themselves in cases of this kind by means of witnesses, church-books, or any other kind of evidence. Essay, 75. But if on a writ of error, brought by the infant to reverse the fine for his nonage, proof thereof is made before he comes of age, and he afterwards dies before the fine is reversed, his heir may reverse it, or if he comes of full age before the reversal is complete, it may be reversed after his full age. Co. Lit. 131, a. 380, b. Cro. Jac. 230. 2 Inst. 483. What is to be tried by the court upon inspection, see Bac. Abr. Trial, (D.) and for the manner of reversing a fine for the nonage of the conusor by inspection, 3 Bl. Comm. 332. Essay on Fines, 75.

not avoid the fine, because he cannot make it appear, by any competent evidence, that his ancestor was a minor when he levied the fine.] Women covert. Also women that have husbands ought not to be admitted alone without their husbands to levy fines, and yet if such a woman alone [and as a feme sole, viz. without disclosing the fact of her coverture] levy a fine of her own land she hath in fee simple [or in fee tail,] and her husband do not avoid it (as he may if he will) by writ of error, entry or otherwise, during her life, or after her death during his own life, if he be tenant by the curtesy, [in this case it will be pro interesse suo only,] this is now a good fine and will bind her and heir heirs for ever (38), except she be an infant at the time of the fine levied, and her husband happen to die during her minority; for then, in that case, if it be not a fine sur grant & render to her in tail or for life, she may avoid it during her minority; but if the coverture continue until her full age, in that case she cannot avoid it, except her husband join with her in it; but the husband and wife ought to be received together to levy any fine of her land (39). [Under special circumstances the court will permit a married woman, for perfecting a sale made by her and her husband, to levy a fine as if she were a feme sole; not however giving validity to the fine, for the court cannot change the law, though it may regulate the practice; but leaving to the wife the right of avoiding the fine. Thus the court merely dispenses with those rules which the court introduced for the protection of the wife.] If such persons as are civilly dead [by devotion to the church,] as friars, monks, and the like, be admitted to levy a fine, the fine is void; [but though attainted persons are said to be civilly dead, their fines are not actually void.] But such civil bodies as have absolute estate in their possessions, as mayor and commonalty, dean

Corporations.

(38) But if the husband avoid the fine, the whole estate which passed by it is defeated, the old estate of the wife becomes revested in her, the husband becomes again seised of the whole estate in her right, and neither the wife nor her heirs will be then barred by the fine. Essay on Fines, 70.

(39) The reason why fines are allowed to be of sufficient force to bind those whom the law generally disables in other cases, is, because the concord is made by leave of the king or his justices, and therefore all presumption of fraud and deceit is excluded; the king and his court of justice being supposed privy to the act. Chet. 2; Bracton, 1. 5, c. 28.

3 H. 6. 42.

41 E. 3. 7. 50 E. 3. 9. 24 E. 3. 62.

5 H. 7. 25. 19 H. 6. 25. Dyer 188.

his Tract of

Fines.

and chapter, colleges, and other societies corporate,
may levy fines of the lands they hold in common,
even by the common law, and such fines are good;
but ecclesiastical persons, as bishops, deans, mas-
ters of hospitals, parsons, vicars, prebends, and
such like, [and even ecclesiastical corporations, as
dean and chapter; and eleemosynary corporations,
as masters and guardians of hospitals, &c.] (40) are
by divers statutes restrained to levy fines of their
spiritual [and eleemosynary] inheritances [so as to
bind their successors] (41).

Any person that hath capacity to take by grant,
or may be a grantee, by deed, may take by fine,
and be a conusee therein; as any person male or
female, of full age or under age, whether it be a
feme covert, mad person, lunatic, idiot, any person
in prison, or beyond the sea, also any person
attainted of felony or treason, or outlawed in any
personal action, a bastard, clerk, convict or alien,
may be conusee in a fine, and a fine levied to such
persons is good. Also corporations spiritual and
temporal may be conusees in fines, and fines levied P. 8.
to them are good; but before the ingrossing of
such fines there goeth always a writ to the justices
of the Common Pleas, Quod permittant finem illum
levari. But such persons as are civilly dead [by
devotion to the church,] as fryars, monks, and the
like, cannot be conusees in a fine; and therefore
a fine levied to such persons is void.

West. Symb. in The names of cognisors and cognisees in fines must be certainly set down, and they [the parties] must for the most part be described by their right names of baptism and surname, whether they be king, princes, dukes, marquesses, earls, viscounts, barons, lords or knights, which be names of dignity; but Come of these are sometimes described without their surname, as Georg Comes Salop: Johannes Dux Lancastr. or whether they be esquires or

(40) Who are seised in right of their churches, &c. and cannot levy a fine to the prejudice of their successors. Chet. 74.

(41) The queen may levy fines: an alien who hath purchased land cannot levy a fine if the court perceives it, but if the fine is levied it is good, and shall never be reversed. Densh. R. on fines, 13. See further who may levy fines, Vin. Abr. Fines, (D. 10.) Brown 14. Bac. Abr. Fines, (C.) If any person levies a fine in the name of any other person who is not privy nor consenting thereto, and shall be lawfully convicted thereof, such person so levying the fine shall by statute 21 Jac. 1, c. 26, suffer death without benefit of clergy.

с

gentlemen, which be names of worship and honor. But these additions of names of dignity and honour given to such persons or any others, as bishops and the like, are used in fines rather of courtesy than of necessity, for they are not needful in fines. But in case where there be two of one name, it is safe to make some addition by way of distinction, as senior and junior and the like. [The omission however may be supplied by averment.

It is cer

tainly safe and proper to give the parties such addition as will distinguish them from all other persons of the same name; but though a person of the same name with his father is made a party to a deed, without any addition to distinguish him from his father, the absence of this addition will not vitiate the deed of grant.]

If a woman, living her first husband, take a se- 7 H. 4. 22. cond husband, and with him and by his name acknowledge a fine, it seems this is void [read voidable] because of this mistake; [but unless avoided by the rightful husband, it would remain in force against the wife and her heirs ;] but if a woman with her right husband, by a wrong christian name, [but with the addition of his wife,] levy a fine, she is concluded by it, and cannot avoid it during her life; [nor can it be avoided after her death, for the addition his wife marks a sufficient certainty of her person. So a fine levied by a man and woman as his wife, though in point of fact she is only his reputed wife, will bind her and her heirs. So will a fine levied by a man and woman, being his wife de facto, though they are afterwards divorced. Roll. Abr. 20.] And yet, 1 Ass. pl. 11. if a fine be levied to a man and his wife by a wrong name, as to A. and Sibill his wife, when her name is Isabell, this is holden to be void, [a conclusion not to be adopted without great consideration, for neither the case to which reference is made, nor the principles of law, warrant this position. The addition of wife affords a sufficient description of the woman, and the mistake in the name will not vitiate. In Terril v. Lucas, 1 Ass. pl. 11, being the authority to which reference is made, the question was discussed on the pleadings, and the question was, Whether Isabella was estopped from showing her actual name and deny

с

с

Litt. Broo.

Sect. 344

ing it was Sybill, by having accepted the fine levied F.N. B. 97. a. to her by the name of Sybill?] But if a fine be levied by a woman by the name of Margery when her name is Margaret, or by the name of Agnes, when her name is Anne, it seems this fine is a good fine, [provided she be called and known by one name as well as the other; or because the fine operates against her by estoppel. Scrope's opinion in 1 Ass. 2.]

West. Symb. ubi supra.

Stat. de Carlil.

g

And

place before whom the persons and and where it is what persons may take conusance of them. And where, and how, and tke sons therein.

fines or record

duty of such per

THE persons or judges before whom a fine is to 2. In respect of be levied are of two sorts, for some are judges the persons before only at the time of the cognisance, and certificate knowledged, and thereof, and others are judges to whom the cognisance is to be certified, and before whom it is to recorded. The first sort are such as have be recorded. power to take such cognisance, either er officio, and by virtue of their offices, or by some commission, general or special, granted unto them by the Stat. 15 E. 2. king out of Chancery; as all or any two of the justices of the Common Pleas may in open court take knowledge of fines, and record them by virtue of their office (42). Or the chief justice of that court may by the prerogative of his place take cognisance of fines in any place out of the court, and certify the same without any writ of dedimus potestatem (43): 'and so also as it seems may two of the justices of that Court with the consent of the rest or one of them with a knight (but this is not usual at this day.) Also justices of assize by the Broo. Fines 190, general words of their patents may take and certify cognisances of fines without any special dedi

* Dyer 324. Cromp. Jur.

Stat. 15 E. B. Broo. Fines120,

* Dyer 224.

Cromp. Jur. 92.

F. N. B. 147.

mus potestatem, but at this day they do not use to
certify them without a special writ of dedimus *P. 9.
potestatem. And fines have been levied before
justices errants.

Also cognisances of fines are taken by a special. Dedimus potesb. 146. F. G. writ issuing out of the Chancery called a dedimus tatem, quid. potestatem, whereby commission is given in divers cases to a private man for the speeding of some act appertaining to a judge, upon a surmise that the parties that are to do the same are not able to

(42) By the stat. 18 Ed. I. de modo levandi fines, which directs fines to be levied in the Common Pleas, and not elsewhere. 2 Inst. 515. Except in a court of antient demesne. See 1 Salk. 340. Hunt v. Bourne, Bac. Abr. Fine, &c. (D.)

(43) But the Chief Justice of England cannot, nor any other of the justices, except the Chief Justice of the Common Pleas, who hath this special authority by custom, and not by any statute. 9 Co. Read. Chet. 19.