CHAPTER III. FINE AND RECOVERY. By 2 BL. COM., 348-357. A fine is sometimes said to be a feoffment of record; though it might with more accuracy be called an acknowledgment of a feoffment on record. which is to be understood, that it has at least the same force and effect with a feoffment, in the conveying and assuring of lands: though it is one of those methods of transferring estates of freehold by the common law, in which livery of seisin is not necessary to be actually given; the supposition and acknowledgment thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine may be described to be an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices: whereby the lands in question become, or are acknowledged to be, the right of one of the parties. In its original it was founded on an actual suit, commenced at law for recovery of the possession of land or other hereditaments; and the possession thus gained by such composition was found to be so sure and effectual that fictitious actions were, and continue to be, every day commenced, for the sake of obtaining the same security. A fine is so called because it puts an end, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matter. . . . Fines indeed are of equal antiquity with the first rudiments of the law itself; are spoken of by Glanvil1 and Bracton in the reigns of Hen. II. and Hen. III. as things then well known and long established; and instances have been produced of them even prior to the Norman invasion. So that the statute 18 Edw. 2 L. 5, t. 5, c. 28. 3 Plowd. 369. 'L. 8, c. I. 3 I., called modus levandi fines, did not give them original, but only declared and regulated the manner in which they should be levied or carried on. And that is as follows: 1. The party to whom the land is to be conveyed or assured, commences an action or suit at law against the other, generally an action of covenant, by suing out a writ of praecipe, called a writ of covenant: the foundation of which is a supposed agreement or covenant, that the one shall convey the lands to the other; on the breach of which agreement the action is brought. . . . The suit being thus commenced, then follows, 2. The licentia concordandi, or leave to agree the suit. For, as soon as the action is brought, the defendant, knowing himself to be in the wrong, is supposed to make overtures of peace and accommodation to the plaintiff. Who, accepting them, but having, upon suing out the writ, given pledges to prosecute his suit, which he endangers if he now deserts it without license, he therefore applies to the court for leave to make the matter up. This leave is readily granted. 3. Next comes the concord, or agreement itself, after leave obtained from the court: which is usually an acknowledgment from the deforciants (or those who keep the other out of possession) that the lands in question are the right of the complainant. And from this acknowledgment, or recognition of right, the party levying the fine is called the cognizor, and he to whom it is levied the cognizee. This acknowledgment must be made either openly in the court of common pleas, or before the lord chief-justice of that court; or else before one of the judges of that court, or two or more commissioners in the country, empowered by a special authority called a writ of dedimus potestatem, which judges and commissioners are bound, by statute 18 Edw. I. st. 4, to take care that the cognizors be of full age, sound memory, and out of prison. If there be any feme-covert among the cognizors, she is privately examined whether she does it willingly and freely, or by compulsion of her husband. By these acts all the essential parts of a fine are completed and if the cognizor dies the next moment after the fine is acknowledged, provided it be subsequent to the day on which the writ is made returnable, still the fine shall be carried on in all its remaining parts: of which the next is, 4. The note of the fine; which is only an abstract of the writ of covenant, and the concord; naming the parties, the parcels of land, and the agreement. This must be enrolled of record in the proper office, by direction of the statute 5 Hen. IV. c. 14. 5. The fifth part is the foot of the fine, or conclusion of it: which includes the whole matter, reciting the parties, day, year, and place, and before whom it was acknowledged or levied. Of this there are indentures made, or 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 proceeding at length. And thus the fine is completely levied at common law. We are next to consider the force and effect of a fine. These principally depend, at this day, on the common law, and the two statutes 4 Hen. VII. c. 24, and 32 Hen. VIII. c. 36. The antient common law, with respect to this point, is very forcibly declared by the statute 18 Edw. I., 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 Ed ward 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 rigor of the common law. For the statute then made restored the doctrine of non-claim, but extended the time of claim. So that now, by that statute, the right of all strangers whatsoever is bound, unless they make claim, by way of action or lawful entry, not within one year and a day, as by the common law, but within five years, after proclamations made: except feme-coverts, infants, prisoners, persons beyond the seas, and such as are not of whole mind; who have five years allowed to them and their heirs, after the death of their husbands, their attaining full age, recovering their liberty, returning into England, or being restored to their right mind. * But, in order to make a fine of any avail at all, it is necessary that the parties should have some interest or estate in the lands to be affected by it. Else it were possible that two strangers, by a mere confederacy, might without any risk. defraud the owners by levying fines of their lands; for if the attempt be discovered, they can be no sufferers, but must only remain in statu quo: whereas if a tenant for life levies a fine, it is an absolute forfeiture of his estate to the remainder-man or reversioner, if claimed in proper time. It is not, therefore, to be supposed that such tenants will frequently run so great a hazard; but if they do, and the claim is not duly made within five years after their respective terms expire, the estate is forever barred by it. Yet where a stranger, whose presumption cannot be thus punished, officiously interferes in an estate which in nowise belongs to him, his fine is of no effect; and may at any time be set aside (unless by such as are parties or privies thereunto) by pleading that "partes finis nihil habuerunt." And, even if a tenant for years, who hath only a chattel interest, and no freehold in the land, levies a fine, it operates nothing, but is liable to be defeated by the same plea. Wherefore when a lessee for years is disposed to levy a fine, it is usual for him to make a feoffment first, to displace the estate of the reversioner and create a new freehold by disseisin. And thus much for the conveyance or assurance by fine: which not only, like other conveyances, binds the grantor himself, and his heirs; but also all mankind, whether concerned in the transfer or no, if they fail to put in their claims within the time allotted by law. ID., 357-362. The fourth species of assurance, by matter of record, is a common recovery. Concerning the original of which it was formerly observed that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain; and afterward encouraged by the finesse of the courts of law in 12 Edw. IV. in order to put an end to all fettered inheritances, and bar not only estates-tail, but also all remainders and reversions expectant thereon. I am now, therefore, only to consider, first, the nature of a common recovery; and, secondly, its force and effect. 1. And, first, the nature of it; or what a common recovery is. A common recovery is so far like a fine, that it is a suit of action, either actual or fictitious: and in it the lands are recovered against the tenant of the freehold; which recovery, being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoveror. A recovery, therefore, being in the nature of an action at law, not immediately compromised like a fine, but carried on through every regular stage of proceeding, I am greatly apprehensive that its form and method will not be easily understood by the student who is not yet acquainted with the course of judicial proceedings; which cannot be thoroughly explained till treated of at large in the third book of these commentaries. However, I shall endeavor to state its nature and progress, as clearly and concisely as I can; avoiding, as far as possible, all technical terms and phrases not hitherto interpreted. Let us, in the first place, suppose David Edwards to be |