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in the case of a common person, whose grant was to be taken most strongly against himself; and here the non obstante aided those defects, and it was the proper office of a non obstante to do so, as appeared in Bozoun's case.
Of the several Sorts of Fines.
CHAP. IV. In what Courts Fines may be levied, and before whom
Of what Things a Fine may be levied, and by what
Effect of Fines at common Law, and by the Statutes
18 Edw. I. 27 Edw. I. and 34 Edw. III.
Efect of Fines by the Statutes 1 Rich.III. 4 Hen.VII.
and 32 Hen. VIII. in barring Estates Tail.
Effect of Fines in barring particular Persons, Estates,
Of the different Savings in the Statute 4 Hen.VII. and the Exceptions in favour of Infants, Femes Covert, &c.
Of the Origin and Nature of Fines. 1. Origin of Fines.
| 13. Taken from the Roman Law. 9. Description of
| 16. When first introduced.
Fines. of alienation, it was found necessary to adopt some authentic mode of transfer, which might secure the possession, and evince the title of the purchaser.
2. By the ancient common law, a charter of feoffment was, in general, the only written instrument
whereby lands were transferred or conveyed. But although this assurance derived great authenticity from the number of witnesses by whom it was usually attested, and the solemn and public manner in which livery of seisin was given, yet still it may be supposed that inconveniences would frequently arise, either from the loss of the charter itself, or from the difficulty of proving it after a lapse of years.
These circumstances probably induced men to look out for some other species of assurance, which should be more solemn, more lasting, and more easy to be proved, than a charter of feoffinent.
3. Experience must soon have discovered that no title could be so secure and notorious, as that which had been questioned by an adverse party, and ratified by the determination of a court of justice. And the ingenuity of mankind soon found out a method of deriving the same advantage from a fictitious process.
4. To effect this purpose the following plan was adopted. A suit was commenced concerning the lands intended to be conveyed; and when the writ was sued out, and the parties appeared in court, a composition of the suit was entered into, with the consent of the Judges, whereby the lands in question were declared to be the right of one of the contending parties.
5. This agreement being reduced into writing, was enrolled among the records of the court, where it was preserved by the proper officer; by which means it was not so liable to be lost * or defaced as a charter of feoffment; and being a record, would at
* There is a record of a fine in Dugdale's Origines Juridiciales, p. 92, dated 28 Hen. II., which is expressly mentioned to bave been levied, because the charter of feoffinent, by which the lands had been conveyed, was lost.
all times prove itself. It had also another advantage: that being substituted in the place of the sentence which would have been given, in case the suit had not been compounded, it was held to be of the same nature, and of equal force, with the judgement of a court of justice.
6. When this species of agreement was completed, Glanv. lib. 2. a writ issued to the sheriff of the county in which
Bract. 256 a. the lands lay, in the same form as if a judgement had been obtained in an adversary suit, directing him to deliver seisin and possession to the person who thus acquired the lands.
7. The form which was first adopted in this assurance has continued ever since. To show the tenor thereof, and the difference between it and the charters which were then in use, it shall be here transcribed from Glanville.
Lib. 8. c. 2. Hæc est
finalis concordia facta in curia domini regis apud Westmonasterium, in vigilia beati Petri apostoli, anno regni regis Henrici secundi, tricesimo tertio, coram Ranulpho de Glanville, justiciario domini regis, et coram H. R. W. et T. et aliis fidelibus domini regis qui ibi lunc aderunt, inter priorem et fratres hospitalis Hierusalem et W. T. filium Normanum et Alanum filium suum, quem ipse attornavit in curia domini regis ad lucrandum et perdendum, de tota terra illa et de pertinentiis de qua terra tota placitum fuit inter eos in curia domini regis : scilicet, quod prædictus W.et Alanus concedunt et testantur donationem quam Normanus pater ipsius W. ipsis inde fecit, et illam terram totam quietam clamant de se et hæredibus suis domus hospitalis et prefato priori et fratribus, in perpetuum et per liberum servitium quatuor denariorum per annum pro omni servitio, et pro hac concessione et testificatione et quieta clamantia prefatus VOL. V.