II. Fines are of four kinds. II. Fines, thus levied are of four kinds. 1. What in our law French is called a fine" sur cognizance de droit de droit come come ceo que il ad de son done;” or, a fine upon acknowledg Fine sur cognizance ceo. Fine sur cognizance tum. ment of the right of the cognizee, as that which he hath of the 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, acknowledges in court a former feoffment, or gift in possession, to have been made by him to the plaintiff. This fine is therefore said to be a feoffment of record; the livery, thus acknowledged in court, being equivalent to an actual livery: so that this assurance is rather a confession of a former conveyance than a conveyance now originally made; for the [353] deforciant, or cognizor, acknowledges, cognoscit, the right, to be in the plaintiff, or cognizee, as that which he hath de son done, of the proper gift of himself, the cognizor. 2. A fine" sur cognizance de droit tantum," or, upon acde droit tan- knowledgment 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. 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." 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. 4. A fine," sur done, done, grant, 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 particular limitations of estate: whereas the fine sur cognizance de droit come ceo, &c. conveyed nothing but an absolute estate, Fine sur concessit. Fine sur render. w Moor. 629. cognizance ceo, the most either of inheritance or at least of freehold. 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, Fine sur sur cognizance de droit come ceo, &c. was the most used, de droit come as it conveyed a clean and absolute freehold, and gave the common. cognizee a seisin in law, without any actual livery; and was therefore called a fine executed, whereas the others were but executory. The third, however, was also not unfrequently resorted to for conveying life estates and the interests of married women, and for creating terms of years to bind by way of estoppel their contingent or executory estates and interests. The second and fourth have been rarely used of late. and effect of III. We are next to consider the force and effect of a fine. III. The force These principally depend, at this day, on the common a fine. law, and the two statutes, 4 Hen. VII. c. 24, and 32 Hen. VIII. c. 36. The ancient common law, with respect to this point, is very forcibly declared by the statute 18 Edw. I., [354] in these words. "And the reason why such solemnity is required in the passing of a fine, is this; because the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it precludes not only those which are parties and privies to the fine, and their heirs, but all other persons in the world, who are of full age, out of prison, of sound memory, and within the four seas, the day of the fine levied; unless they put in their claim on the foot of the fine within a year and a day." But this doctrine, of barring the right by non-claim, was abolished for a time by a statute made in 34 Edw. III. c. 16, which admitted persons to claim, and falsify a fine, at any indefinite distance: whereby, as Sir Edward Coke observes," great contention arose, and few men were sure of their possessions, till the parliament held 4 Hen. VII. reformed that mischief, and excellently moderated between the latitude given by the statute and the rigour of the common law. For the statute then made, restored the doctrine * Salk. 340. y See 1 Real Prop. Rep. 13. z Litt. s. 441. a 2 Inst. 518. b 4 Hen. 7, c. 24, and see ante, p. 132. Effect of a fine in bar ring by nonclaim. So that of non-claim; but extended the time of claim. seas, It seems to have been the intention of that politic prince, king Hen. VII. to have covertly by this statute extended fines to have been a bar of estates-tail, in order to unfetter the more easily the estates of his powerful nobility, and lay them the more open to alienation, being well aware that power will always accompany property. But [355] doubts having arisen whether they could, by mere implication, be adjudged a sufficient bar, (which they were expressly declared not to be by the statute de donis,) the 32 Hen. VIII. statute 32 Hen. VIII. c. 36, was thereupon made; which removed all difficulties, by declaring that a fine levied by any person of full age, to whom or to whose ancestors lands had been entailed, should be a perpetual bar to them and their heirs claiming by force of such entail: unless the fine were levied by a woman after the death of her husband, of lands which were, by the gift of him or his ancestors, assigned to her in tail for her jointure; or unless it were of lands entailed by act of parliament or letters patent, and whereof the reversion belongs to the crown. c. 36, enacts, that a fine shall bar an entail. Who are bound by a fine. Parties. Effect of a fine in conveying the estate of a married woman. From this view of the common law, regulated by these statutes, it appears, that a fine is a solemn conveyance on record from the cognizor to the cognizee, and that the persons bound by a fine are parties, privies, and strangers. The parties are either the cognizors, or cognizees; and these are immediately concluded by the fine, and barred of any latent right they might have, even though under the legal impediment of coverture. And indeed, as this was almost the only act that a feme covert, or married woman, But see Harg. Co. Litt. 121 a, n. ferently considered. (1), where the various statutes are dif d See stat. 11 Hen. 7, c. 20. was permitted by law to do, (and that because a real action for the freehold was pending, and because she was privately examined as to her voluntary consent, which removed the general suspicion of compulsion by her husband,) it was therefore the usual and almost the only safe method, whereby she could join in the sale, settlement or incumbrance, of any estate. Privies to a fine are such as are any way related to the Privies. parties who levied the fine, and claimed under them by any right of blood, or other right of representation. Such as are the heirs general of the cognizor, the issue in tail, since the statute of Henry the Eighth, the vendee, the devisee, and all others who must make title by the persons who levied the fine. For the act of the ancestor shall bind the heir, and the act of the principal his substitute, or such [356] as claim under any conveyance made by him subsequent to the fine so levied.d under disa Strangers to a fine are all other persons in the world, Strangers. except only parties and privies. And these are also bound by a fine, unless within five years after proclamations made, they interpose their claim; provided they are under no legal impediments, and have then a present interest in the estate. The impediments, as hath before been said, Persons are coverture, infancy, imprisonment, insanity, and ab- bility. sence beyond sea: and persons who are thus incapacitated to prosecute their rights had five years allowed them to put in their claims after such impediments were removed. Persons also that have not a present, but a future interest only, as those in remainder or reversion, had five years allowed them to claim in, from the time that such right accrued. And if within that time they neglected to claim, or, (by the statute 4 Ann, c. 16,) if they did not bring an action to try the right within one year after inaking such claim, and prosecute the same with effect, all persons whatsoever were barred of whatever right they might have, by force of the statute of non-claim. or fine must But, in order to make a fine of any avail at all, it is ne- Parties to a cessary that the parties should have had some interest have had an estate in the lands to be affected by it. Else it had been the land. interest in Harg. Co. Litt. 121 a, n. d 3 Rep. 87. e Co. Litt. 372. Ꭰ Ꭰ possible that two strangers, by a mere confederacy, might without any risk have defrauded the owners by levying fines of their lands; for if the attempt were discovered, they could be no sufferers, but must have only remained in statu quo: whereas if a tenant for life levied a fine, it was an absolute forfeiture of his estate to the remainderman or reversioner, if claimed in proper time. It is not therefore to be supposed that such tenants would frequently run so great a hazard; but if they did, and the claim was not duly made within five years after their respective terms expired, the estate was for ever barred by it. Yet where a stranger, whose presumption could not thus be punished, officiously interfered in an estate which in no wise belonged [357] to him, his fine was of no effect; and might at any time have been set aside (unless by such as are parties or privies thereto") by pleading that "partes finis nihil habuerunt." And, even if a tenant for years, who had only a chattel interest, and no freehold in the land, levied a fine, it operated nothing, but was liable to be defeated by the same plea. Wherefore, when a lessee for years was disposed to levy a fine, it was usual for him to make a feoffment first, to displace the estate of the reversioner,* and create a new freehold by disseisin; but as we have seen' this effect of a feoffment is now much disputed. And thus much for the conveyance or assurance by fine: which not only, like other conveyances, bound the grantor himself, and his heirs; but also all mankind, whether concerned in the transfer or not, if they failed to put in their claims within the time allotted by law. IV. Common recovery. IV. The fourth species of assurance, by matter of record, was a common recovery; but by the stat. 3 & 4 W. IV., c. 74, which took effect on the 31st of December, 1833, it is abolished after that time. Concerning the original of this assurance it was formerly observed," that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain; and afterwards encouraged by the finesse of the courts of law in 12 Edw. IV., in order to put f Co. Litt. 251. g 2 Lev. 52. h Hob. 334. i5 Rep. 123; Hardr. 401. k Hardr. 402; 2 Lev. 52. |