the fine, which was only an abstract of the writ of covenant, and of the concord; naming the parties, the parcels of land, and the agreement: and this was to be enrolled of record in the proper office, by direction of the statute 5 Hen. IV. c. 14. 5. The fifth and last part was the foot of the fine, or conclusion of it: which included the whole matter; and recited the parties, and the day, year and place when, where and before whom it was acknowledged or levied. Of this, there were indentures made and engrossed at the chirographer's office, and delivered to the cognizor and the cognizee; usually beginning thus: "Hæc est finalis concordia, this is the final agreement," and then reciting the whole proceedings at length. And thus the fine was completely levied at common law.

To render the fine more universally public, and less liable to be levied by fraud or covin, it was directed by 4 Hen. VII. c. 24 (in confirmation of a previous statute), that a fine, after engrossing, should be openly and solemnly read and proclaimed in court (during which all pleas should cease), sixteen times; viz., four times in the term in which it was made, and four times in each of the three succeeding terms, which was reduced to one in each term by 31 Eliz. c. 2; and these proclamations were indorsed on the back of the record (q).

Fines thus levied were of four kinds:-1. What in our law French was called a fine sur cognizance de droit, come ceo que il ad de son don; or, a fine upon acknowledgment of the right of the cognizee, as that which he hath of the

(9) Though in modern times fines have always been levied with proclamations, yet trouble and expense were often incurred in procuring evidence that they were so levied ; and therefore, by 11 & 12 Vict. c. 70, it is now provided, that all fines theretofore levied in the Court of

Common Pleas shall be conclusively deemed to have been levied with

proclamations-with proviso, however, that this shall not affect any proceedings then pending; nor extend to any fine theretofore levied of lands which were then actually possessed by any person, under a title adverse to or inconsistent with the operation of such fine if levied with proclamations.

gift of the cognizor. This was the best and surest kind of fine; for thereby the deforciant, in order to keep his covenant with the plaintiff, of conveying to him the lands in question, and at the same time to avoid the formality of an actual feoffment and livery, acknowledged in court a former feoffment, or gift in possession, to have been made by him to the plaintiff. This fine was therefore said to be a feoffment of record; the livery, thus acknowledged in court, being equivalent to an actual delivery: so that this assurance was rather a confession of a former conveyance, than a conveyance then originally made; for the deforciant or cognizor acknowledged the right to be in the plaintiff, or cognizee, as that which he had de son don, of the proper gift of himself, the cognizor. 2. A fine sur cognizance de droit tantum, or upon acknowledgment of the right merely; not with the circumstance of a preceding gift from the cognizor. This was commonly used to pass a reversionary interest which was in the cognizor. For of such reversions there could be no feoffment, or donation with livery, supposed, as the possession during the particular estate belonged to a third person (r). It was worded in this manner, "that the cognizor acknowledges the right to be in the cognizee, and grants for himself and his heirs, that the "reversion, after the particular estate determines, shall go "to the cognizee (s)." 3. A fine sur concessit was where the cognizor, in order to make an end of disputes, though he acknowledged no precedent right, yet granted to the cognizee an estate de novo, usually for life or years, by way of supposed composition. And this might be done, reserving a rent or the like, for it operated as a new grant (t). 4. A fine sur don, grant et render was a double fine, comprehending the fine sur cognizance de droit come ceo, &c. and the fine sur concessit, and might be used to create

66

(r) Danver's case, Moore, 629. (s) West. Symb. p. 2, s. 95. (t) Ibid. s. 66. This was commonly used for the creation of smaller

estates, as for life or years, though it might be also used to convey the fee simple. (Burt. Compend. 24.)

particular limitations of estate, whereas the fine sur cognizance de droit come ceo, &c., conveyed nothing but an absolute estate, either of inheritance, or at least of freehold (u). In this last species of fine, the cognizee, after the right was acknowledged to be in him, granted back again, or rendered to the cognizor, or perhaps to a stranger, some other estate in the premises. But, in general, the first species of fine sur cognizance de droit come ceo, &c. was the most used.

We are next to consider the force and effects of a fine, which were principally as follows (v):

1. Like all other conveyances, it bound the parties thereto, and also all "privies," that is, persons deriving title under the parties; and this whether levied with proclamations or not (x). But in this respect, it had a force peculiar to itself; for even if one of the parties was a married woman, she would be bound, notwithstanding her coverture, by the fine; and (supposing her husband to concur in it (y)) it would effectually pass any estate, or bar any right of dower that she might have in the lands therein comprised (~): though the coverture would suffice to avoid her alienation, either of estate or dower, in the case of an ordinary conveyance (a). And this peculiarity was justified by the circumstance that the court would not allow a fine, affecting her interest, to pass without privately examining her as to her voluntary consent; which removed the general suspicion of compulsion by her husband (b).

(u) Hunt v. Bourne, Salk. 340. (v) A fine had several other effects, the enumeration of which will be found in the First Real Property Report, p. 21; and see Co. Litt. by Harg. 121 a, n. (1).

(x) 2 Bl. Com. 355; see 5 Cruise, Dig. 133, 159, 202. It did not, however, unless levied with proclamations, bar the issue in tail of their right to bring an action of formedon;

Hunt v. Bourne, Salk. 340; Doe d.
Thomas v. Jones, 1 Tyrw. 517; et
vide post, p. 574.

(y) 5 Cruise, Dig. 82, 154.
(*) Ibid. 156.

(a) 4 Cruise, Dig. 20. As to the probable reason for allowing this effect to a fine, vide Co. Litt. by Harg. 121 a, n. (1).

(b) 2 Bl.Com. 355; 5 Cruise, Dig.

2. A fine with proclamations (c) bound not only parties and privies, but even strangers (that is, persons not parties or privies), if they failed to put in their claims within the time allowed by law (d); and if during all that period they were subject to no legal disability sufficient to excuse their acquiescence. It was in reference to this property of a fine, (which belonged to it from the remotest period of legal history,) that rights are said in our books to be barred by fine and non-claim (e). The doctrine, indeed, was abolished for a time, by a statute made in 34 Edw. III. c. 16, which admitted persons to claim and falsify the fine at any indefinite distance (ƒ). But by 1 Richard III. c. 7 (g), and 4 Henry VII. c. 24, the doctrine itself was again restored, though the time of claim was extended; and after the latter statute, and until the late abolition of these assurances, the state of the law was as follows,that by a fine, when duly proclaimed, the right of all strangers whatever was bound (h), unless they made claim by way of action, or lawful entry (not within one year and a day, as at the common law, but) within five years after proclamation made: except femes covert, infants, prisoners, persons beyond the seas, and such as were not of whole mind,-who had five years allowed to them and their heirs after the death of their husbands, their attaining full age, recovering their liberty, returning to England, or being restored to their right mind (i). By the statute 4 Anne, c. 16, it was also provided, in cases where the claim

82, 153. This was by the statute 18
Edw. 1, de modo levandi fines.
(c) As to proclamations, vide sup.
p. 570.

(d) 2 Bl. Com. 354. There were antiently four methods of claiming so as to avoid being concluded by a fine: 1. By action; 2. By entering such claim on the record at the foot of the fine; 3. By entry on the lands; 4. By continual claim. But

the second of these was not in force
after the statute of Henry 7. The
time for making the claim was a year
and a day after the fine levied.
(e) 2 Bl. Com. 354.
(f) Ibid.; Litt. s. 441.

(g) See Co. Litt. by Harg. 121 a,

n. (1).

(h) 4 Hen. 7, c. 24; Davies v. Lowndes, 5 Bing. N. C. 172. (i) 2 Bl. Com. 356.

was made by entry, that it should be of no avail unless an action was brought within one year afterwards, to try the right of the claimant, and unless the same were prosecuted with effect. It is to be observed, however, that, in order to bar by non-claim persons who were not parties or privies, it was necessary that the person levying the fine should be seised of the freehold, either by right or by wrong (k): for if he had nothing in the land, or if his possession were merely as tenant for a term of years, or other chattel interest, the fine might be avoided by pleading partes finis nihil habuerunt (1). And it is further to be remarked, that persons having no estate in possession, but only in remainder or reversion, were not bound to make claim within five years after proclamation made, but within the same period after their right of entry accrued (m).

3. A fine levied by tenant in tail, with proclamations, barred the issue in tail. It had indeed been expressly provided by the statute de Donis, that a fine should have no such effect (n); but by 32 Hen. VIII. c. 36, it was at length enacted, that when levied with proclamations according to 4 Hen. VII. c. 24, by any person of full age (of lands or tenements before in anywise entailed to him or to any of his ancestors, in possession, reversion, or remainder), it should be a sufficient bar and discharge for ever against the tenant and his heirs, claiming only by force of the entail (o). It did not, however, bar those in remainder or reversion upon the entail (p); who (upon his death and the failure of his issue) had either a right of

(k) Davies v. Lowndes, 5 Bing. N. C. 172.

(1) Stat. 4 Hen. 7, c. 24; 2 Bl. Com. 356; 1 Saund. by Wms. 319, n. (1); Doe d. Thomas v. Jones, 1 Tyrw. 506.

(m) Co. Litt. 372 a; 1 Saund. by Wms. 319, n. (1).

(n) 2 Bl. Com. 355; Doe v. Jones, 1 Tyrw. 517; Burton, 239.

(0) Before the statute of 32 Hen. 8, it had been held that, under the preceding Act of 4 Hen. 7, a fine with proclamations would have the effect of barring the issue in tail; but the doctrine was considered as doubtful, and the 32 Hen. 8 was passed to remove the doubt; see Co. Litt. by Harg. 121 a, n. (1).

(p) 5 Cruise, Dig. 148.