Abbildungen der Seite
PDF
EPUB

same, by 3 Geo. I. c. 15; which fee of 4d. by the said act granted, after the first day of Trinity term 1759, shall cease; and such receiver shall indorse upon the back of every such writ of covenant one mark of office, as is now used by him on the receipt of pre-fines at the Alienation office, with the name of such receiver, and the sum received as the post.fine; which mark of such receiver shall discharge the manors, lands, and hereditaments com prised in the said writ of covenant, and the cognizees named therein."

Sect. 2. “ The officer or clerk of the King's silver office, or his deputy, shall continue to enter every fine upon record, in the way hitherto used, and make the same entries, and put thereon the same indorsements, with the same mark, and in like manner, as hath hitherto been the practice of the said office in passing fines; and no fine, until the same be marked with the sum to which the post-fine amounts in the King's silver office, shall be effectual in law.”

Sect. 3. “ Where no pre-fine is payable on any writ of covenant, viz. where the lands are under the yearly value of five marks, the officer at the Alienation office, whose duty it is to set pre-fines, shall set on every writ of covenant brought to the said Alienation office, on which no pre-fine is payable, a post-fine of 6s. 8d., and shall indorse such post-fine of 68. 8d. on every such writ of covenant, with his name and mark of office, as it has been usual ; and every such post-fine of 6s. Ad. shall be paid to the receiver of the Alienation office before the writ of covenant, on which no pre-fine is payable, be passed at the Alienation office; and the receiver, on payment of the said 6s. 8d. shall indorse and mark every such Vol. V.

G

writ of covenant, as other writs of covenant are bý this act directed to be indarsed.”

Sect. 4. “ The officer or clerk of the King's silver office, or his deputy, after the first day of Trinity term 1759, shall not receive any writ of covenant ; unless it appear, by the mark and indorsement of such receiver, that the post-fine has been paid.”

Sect. 5. “ If after the payment of such post-fine, the writ of covenant, by the death of any of the parties, or other cause, be prevented from passing through the several other offices, so as the said fine is not completed, then the said receiver shall repay to the cognizees, or their attorney, on producing and filing with him the said writ of covenant, every such sum as has been by him before received for the post-fine; and such writ of covenant so remaining filed with such receiver, shall be a discharge to such

receiver.” I Bos. & Pull.

32. By a rule of the Court of Common Pleas, 530. made in Easter term, 36 Geo. III., it is ordered, that

no fines which shall appear to have been acknowledged more than twelve calendar months, shall be permitted

the King's silver office, without a rule of Court, or an order under the hand of the Lord Chief Justice, or some other Judge of that Court. And that where the conuzor or conuzors shall be all living at the time of making the application for such rule or order, an affidavit shall be made thereof, And in case any or either of the conuzors of such fine should not then be living, an affidavit shall be made, stating the time of the death of such conuzor or conuzors; and the application in such case for a rule or order, that the said fine may pass the King's silver office, shall be made to the Court by motion, if in term time, or if in vacation, to the Lord Ch. Justice or some other of the justices of that Court, at his chambers. And that the rule or order in such lastmentioned case, when obtained, shall be filed, with the præcipe and concord of the fine, at the King's silver office.

to pass

33. The third part of a fine is the concord or Concord. agreement entered into openly in the Court of 5 Rep. 39 a. Common Pleas, or before the Chief Justice of that Court, or commissioners duly authorized for that purpose, which is the substance of the fine. It is usually an acknowledgement from the deforciants, or those whose who keep the others out of possession, that the lands in question are the right of the demandant; and from the acknowledgement or tecognition of right thus made, the party who levies the fine is called the cognizor, and the person to whom it is levied, the cognizee.

31. The form of the concord is thus :And the agreement is such, to wit, that the aforesaid A. (the deforciant in the original writ) hath acknowledged the aforesaid manors, lands, tenements, and hereditaments, with the appurtenances, to be the right of him the said B. (the plaintiff or demandant) and those he hath remised and quit-claimed from him the said A. and his heirs, to the aforesaid B. and his heirs, forever. And moreover the said A. hath granted, for himself, and his heirs, that he will warrant to the aforesaid B. and his heirs, the aforesaid manor, lands, tenements, and hereditaments, with the appurtenances, against him the said A. and his heirs for ever."

35. By the common law, the cognizor seems to have been bound to warrant the lands to the cognizee, though no express words to that purpose were inserted in the fine. Thus Bracton says,

382 a. 389 d. Item sufficit finis factus in curia domini regis, licet

expressa warrantia vel homagium et servitium non intervenerit; dum tamen constiterit per finem et chirographum, quod ille qui tenet, tenere debeat de eo qui vocatur ad warrantiam. But in course of time it became the practice to annex an express warranty to

all fines which is still continued. Farmer's 36. It was formerly the practice for the cognizor Case, Hob. 330, to make the cognizance, that is, to acknowledge the

concord of the fine, before any original writ had been sued out; and this custom so far prevailed, that the Judges uniformly supported such fines; but in all cases of this kind, an original writ must have been sued out and made returnable on some day previous to that on which the concord was acknowledged: a licentia concordandi must also have been obtained, and the King's silver regularly paid and entered ; for these circumstances were absolutely necessary to complete the fine.

37. The practice of acknowleging the concord of a fine before the writ of covenant was sued out, was

often productive of great inconveniences and irregui H. Black. larities ; which are now prevented by a rule of the Rep. 526.

Court of Common. Pleas, made in Trinity term 30 Geo. III., by which it is ordered, that from and after the first day of Michaelmas term then next ensuing, every fine, at the time of signing the Judge's allocatur thereon, shall have the writ of covenant. sued out, and annexed thereto.

38. The concordia facta in curia is the complete fine; and therefore if after the concord is acknowledged in Court, one of the cognizors dies, still the cognizee may proceed with this fine, against the surviving cognizor.

!

89. Two brothers acknowledged the concord of a Ersfield':

Case, fine before Lord Ch. Just. Hobart, and then the elder Hub. 329. brother died ; several motions were made for the proceeding, and staying of the fine. The Ch. Just. was clearly of opinion that the cognizee might proceed with his fine as against the surviving brother, and take out his writ of covenant accordingly, the death of his elder brother being no impediment ; for the acknowledgement of each person was good against himself, and should operate for as much as he could pass.

40. A fine was stopped at the King's silver office, Cotton v. for want of an affidavit that the parties were living, Barnes, 215. a year having elapsed since the acknowledgement; and one of the cognizors being dead, application was made to the court that he might be struck out, and that the fine might pass as to the other cognizor. This motion was denied, but a rule was made that the surviving cognizor should show cause why the fine should not pass generally as to all the parties; and upon affidavit of service, the rule was made absolute. 41. The concord comes in lieu of the sentence Similar to a

Judgement. which would have been given in case the parties had not compounded the cause ; and is therefore considered as exactly similar, and attended with the same consequences, as a judgment in an adversary suit. The cognizance must therefore be made of those Co. Read. 6. things only, and to those persons only, who are named in the original writ, on which the fine is levied ; because the cognizance being in the nature of a judgement, binds only those persons and things which are judicially before the Court.

49. This rule, however, admits of a few exceptions ; Idem. for a remainder may be limited in the concord of a

« ZurückWeiter »