prior et fratres hospitalis dederunt ipsi Wilhelmo et Alano centum solidos sterlingorum. 8. This assurance was called finis, or finalis concordia, from the words with which it begins; and also from its effect, which is to put a final end to all suits Lib. 8. c. 3. and contentions. Thus Glanville says-Et nota quod dicitur talis concordia finalis, eo quod finem imponit negotio, adeo ut neuter litigantium ab ea de cetero poterit recedere; and Bracton says-Finis est extremitas uniuscujusque rei, et ideo dicitur finalis concordia, quia imponit finem litibus. 435 b. Description of. 9. A fine may therefore be described to be an amicable agreement or composition of a suit, whether real or fictitious, between the demandant and tenant, with the consent of the Judges, and enrolled among the records of the court where the suit is commenced, by which lands and tenements are transferred from one person to another; or any other settlement is made respecting them. 10. To this mode of transferring estates of freehold, the ceremony of livery of seisin is unnecessary; not because the supposition and acknowledgement thereof in a court record induces an equal notoriety, for in ancient fines no such acknowledgement is made, but because lands acquired in this manner were supposed to be recovered by sentence of a court of justice; and the possession was delivered by the sheriff, in pursuance of a writ directed to him for that purpose; which was equal in point of notoriety to the ceremony of livery of seisin, 11. A fine was, from its first institution, more highly favoured and protected by the law, than any other kind of assurance; for if either of the parties refused to adhere to it, there was a particular writ, by c. c. 3, 4, 5. which they were compelled to appear, called querela Glanv. lib. 1. de fine facto in curia domini regis. And if the fine 3. lib. 8. was proved to have been duly levied, then the party who refused to adhere to it was attached, till he found sufficient security for his compliance. 12. In some cases, however, the civil authority appears to have been insufficient for this purpose. Thus Mr. Madox has transcribed a record, from which it appears that Julian De Swadefield fined to King John in 100 marks and six palfreys, per sic quod finis factus per cyrographum, et per finem duelli, inter ipsum et Wilhelmum de Curton, de feodo unius militis et dimidii cum pertin. in Ellingeham, coram justiciariis, teneatur. Form. Angl. Dissert. § 16. the Roman ; Law. 13. The idea of a fine appears to have been origi- Taken from nally taken from the Transactio of the Roman law; which was an accommodation of a suit already com- Cowell's Dict. menced, or an agreement respecting some doubtful Fine. matter, that would otherwise become the subject of a suit; and is thus described-Transactio est, super re Voet Comp, dubia, aut lite incerta, conventio non gratuita, aliquo Jur. 51. dato, retento, vel promisso. 14. Although no modern writer on the English law has taken notice of this circumstance, yet the definition of a fine given by Bracton seems to be a proof of it.-Concordia in foro seculari idem est quod transac- Bract. 310 a. tio; et est transactio, de re dubia et lite incerta, aliquo dato, vel promisso, vel retento, a lite transactio. From the similarity of these definitions, it appears clearly that the English lawyer copied from the Roman. Nor should it appear extraordinary, that we are indebted to the civil law for this most useful species of assurance, when we consider how much our first Prol.& Lib.7. writers, Glanville and Bracton, have borrowed from c. 1. and Sel Justinian's code; although some of the more modern tam. Vide Glanv. den ad Fle authors appear either to have been ignorant of the obligations we owe to the Romans in this respect, or, from a mistaken pride, to have been extremely unwilling to acknowledge them. Lord Coke, however, 1 Inst. 262 a. appears to have been acquainted with the origin of fines; for, speaking of the etymology of the word fine, he says" And the civilians call this judicial concord, transactionem judicialem de re immobili. 15. The word finis appears to have been used upon the continent, as synonimous to transactio, in the twelfth century; of which several charters, published by Muratori, afford proof. A part of one of them Antiq. Med. shall be transcribed.-Transactio inter Gerardum comitem, &c. atque Attonum archiepiscopum Pisanum, anno Id. 463. 487. 1121. Ev. Tom. 9. 449. When first introduced. Co. Read. 1 Plowd.368. In Eterni Dei nomine, Amen. Breve recordationis qualiter Gerardus Comes, &c. finem fecit et transactionem Gratiano vicedomino ad partem ecclesiæ archiepiscopatus Sancte Marie et Vice Attoni ejusdem ecclesie archiepiscopo, &c. de quinque partibus integris de Curte de Bellora, &c. 16. It has been a favourite topic with our lawyers, to enlarge on the antiquity of fines. Some have carried this idea so far as to insist, that they were coeval with the first rudiments of the common law, and formed an original assurance. Others have contended, that fines were well known in this kingdom before the Norman conquest.* But if it be admitted that the first idea of a fine was derived from the Roman jurisprudence, and we trust this fact has been * It was not unusual, in the Anglo-Saxon times, for persons to execute contracts in the county-court, where they were witnessed; of which Hickes, in his Dissertatio Epistolaris, p. 29, 30, published with the Thesaurus Linguarum Septentrionalium, has produced two instances; but they bear no sort of resemblance to fines. fully proved, it will follow that fines could not possibly have been known in England until some time after the year 1130, when a copy of the Pandects was found at Amalphi, in Italy. In consequence of which discovery, the study of the Roman law spread with Fletam, uncommon rapidity over all Europe, not excepting this island, in which Roger, sirnamed Vacarius, who Selden ad was brought over here by Theobald, a Norman abbot, elected to the see of Canterbury in the year 1147, read public lectures at Oxford on the Roman law. 17. As a farther proof of this assertion, it may be observed, that Dugdale and Madox, two of the most diligent and learned inquirers into our ancient records and charters, have acknowledged that they could. not discover any traces of fines in this country before the time of Henry II., who ascended the throne in 1155; that is, 34 years after the introduction of the Roman jurisprudence. So that there can scarce remain a doubt but that fines were first introduced into England during the reign of King Stephen, or that of his immediate successor, King Henry II., and that we are indebted to Justinian's code for this assurance. c. 7. § 3. Orig. Jur. 98. TITLE XXXV. FINE. CHAP. II. Of the Manner of levying Fines. 1. Ancient Manner of levying | 60. No Averment against the Ancient Manner of levying Fines. SECTION 1. AFINE has, in the preceding chapter, been de scribed to be an amicable agreement or composition of a suit, whether real or fictitious, between the demandant and tenant, with the consent of the Judges, and enrolled among the records of the court where the suit was commenced; by which lands and tenements are transferred from one person to another, or any other settlement is made of them. 2. There is some difficulty in ascertaining the manner in which fines were originally levied, on account of the scarcity of materials for such an inquiry; for, except what is to be found in the Disser |