whom may take the acknowledgment; which having done, they should subscribe their names to the caption, and also to an indorsement on the dedimus, that "the execution thereof appears in a schedule thereunto annexed."

They should in strictness know the conusors, or be informed by some person of credit, that the parties who come to acknowledge the fine, are the real persons named in the concord. They should read the contents of the concord to the conusors, who are to acknowledge their consent thereto, and thereupon the conusors are to sign the concord. If either of the conusors be a feme covert, the commissioners should take her apart, acquaint her with the contents, effect, and consequence of the fine; and examine her whether she acknowledges the same voluntarily, or by compulsion, fear, or dread of her husband: in which case they ought not to take her acknowledgment.

The commissioners ought also to take care that none of the parties be infants, lunatics, idiots, or otherwise unfit to be conusors.

It was to prevent abuses in this respect that it was ordered by rule of court, East. 43 Eliz., that no fine should be levied unless acknowledged before a judge, or serjeant at law, or a knight to be of the quorum.

The acknowledgment being thus taken, one of the commissioners, or some other person who was present at the taking of the acknowledgment, and who knows the parties, must personally appear before the chief justice, or some other judge, and make oath of the due execution of the dedimus, agreeable to the rule of court, Hil. 13 Geo. I. The judge will then write his allocatur under the concord, for passing the fine; after which the præcipe, concord, and dedimus, must be taken to the cursitor, and the fine passed through the offices as hereinafter mentioned.

4. Of acknowledging a Fine before a Judge in the Country.] The præcipe and concord must be engrossed on parchment, and a copy thereof, on paper, taken with the conusors to the judge, who will take acknowledgment, and return the engrossed præcipe and concord. When the judge comes to town a dedimus must be obtained from the cursitor directed to such judge; which being carried to his chambers, his clerk will certify thereon the caption, then on the writ of covenant, the fine will be passed through the offices as hereinafter mentioned.

VII. Of the different Offices through which a Fine must pass.] The writ of covenant being obtained, and the concord made, engrossed, and properly acknowledged; in order to complete the fine they must pass through the several following offices

for the respective purposes hereafter mentioned, viz. the Alienation Office, the Return Office, the Warrant of Attorney Office, the Custos Brevium Office, the King's Silver Office, and the Chirographer's Office.

Alienation Office.] It has been observed that upon taking out the original, a fine, called the premier or pre-fine, is to be paid, which is pro licentia alienandi; that is, for the king's leave to alien the lands about to be conveyed, which fine is not actually paid till this time. Upon the writ, præcipe, and concord being taken to the Alienation Office for this purpose, the writ will be compounded, there being certain persons appointed to settle and compound these fines.

Formerly there was nothing more done at this office, but now, by a statute 32 Geo. II. c. 14. the other fine, called the post fine, or king's silver, which is pro licentia concordandi, (as above mentioned,) is also to be paid here: it is always as much, and half as much more, as the pre-fine.

Return Office.] The writ, pracipe, and concord must be then taken to the Return Office, to get the writ returned; and the return of the sheriff will be indorsed thereon, which is, as in other real actions, nothing more than the fictitious names of the pledges to prosecute, and of the summoners.

From the return day of the writ, the first fine having been paid, the fine begins to operate.

Warrant of Attorney Office.] A warrant of attorney must be made out, and filed with the clerk of the warrants, who will stamp the writ of covenant, and will also keep a note of the writ of covenant.

This warrant of attorney is made out as follows :— Kent, Į A. B. (the conusee,) puts iu his place C. D., his atto wit. Š torney, to prosecute a writ of covenant against E, F. and G. his wife, (the conusors,) of lands and tene

ments in H.

Custos Brevium Office.] At the office of the Custos Brevium he will indorse on the concord the term of which the fine was proclaimed, and will also stamp the writ and concord.

After this the cursitor will mark on the writ the sum paid for the pre-fine, pro licentia concordandi, which is called getting the writ proved.

King's Silver Office.] After this, the writ, pracipe, and concord, must be carried to the King's Silver Office, where nothing is done but merely stamping the writ and concord, and an entry taken of the fine, to be kept there.

Sometimes fines, as upon mortgages, are carried no further than this office, and are recorded here.

Chirographer's Office.] The last office is the Chirographer's Office, to which the writ, præcipe, and dedimus, (if any,) and concord, must be taken, and the proper clerk for the county in which the lands lie will make out the indentures of fine; and in a few days after deliver the same.

The fine is then completed; for it becomes engrossed on record, which, it may be remembered, was the last thing necessary to be done, according to the description above given. The record of the fine which remains in the possession of the chirographer is deemed the principale recordum, and is always considered the true record.

The chirograph of a fine is good evidence thereof.*

Of the Proclamation.] The last step proper to be taken in order to complete the fine according to the statute, which is the safest way to do for the reasons before given, (see p. 460), is to get the proclamations duly made and indorsed thereon.

Fines are to be proclaimed during term, at the time the court is sitting, four times: once in the term wherein they are engrossed, and once in each of the three subsequent

terms.

Proclamations indorsed upon the FINE according to the statute. 2 Bl. Com. Ap. XVI.

THE FIRST proclamation was made the November, in the Term of St. Michael, in the the king within written.

THE SECOND proclamation was made the February, in the Term of St. Hilary, in the king within written.

THE THIRD proclamation was made the in the Term of Easter, in the

written.

day of

year of

day of year of the

day of May,

year of the king within

day of year of

THE FOURTH proclamation was made the June, in the Term of the Holy Trinity, in the the king within written.

Should there be any error in the proclamations, the fine will still be a good one as at common law, subject, however, to the inconvenience of the statute of non-claim above mentioned.

VIII. Of the enrolment of Fines.] By 5 Hen IV. c. 14. all the proceedings on fines, both previous to, and after the ac

The fine, if it be insisted upon, may be detained two days in each of the respective offices above mentioned, (except the Warrant of Attorney Office,) whereby not only great delay would be occasioned, but if near the end of the term, (post terminum,) and other extra fees, would become chargeable; but by paying the different clerks a very trifling gratuity for expedition, the fine may be carried through all the offices in one day.

knowledgment thereof, should be enrolled of record in the Court of Common Pleas; but by 23 Eliz. c. 3. the whole proceedings may, upon the request or at the election of any person, be enrolled. But this enrolment seems only a further security, at the election of the party, in case any accident should happen to the record at the Chirographer's.

IX. Of stopping a Fine from passing.] In order to stop a fine from passing, a caveat must be entered at the King's Silver Office, and notice will be given, if such a fine should be attempted to be levied.

Of searching for a Fine.] Searches for fines are to be made at the King's Silver Office, where entries are kept, or at the Chirographer's Office.

:

X. Of avoiding Fines.] 1st. By Entry. Any person having right of entry on the lands conveyed may, by making an actual entry thereon within the limited time, avoid a fine but it must be an actual entry; for confession of lease, entry, and ouster, as in ejectment, will not do. And by statute 4 Anne, c. 16, where the fine is levied, with proclamations, no such entry shall be of avail, unless an action shall be commenced within one year after the making of such entry, and prosecuted with effect.

2d. By Plea. As if the parties levying the fine had no estate of freehold in the lands conveyed; then any stranger, (not being party or privy to the fine,) having a claim, may avoid the fine by pleading partes finis nihil habuerunt tempore levationis finis, sed quidam A. B. cujus ipse habet.

3rd. Fines may be set aside and avoided for fraud, deceit, or covin, either by writ of deceit, or by application to the court by motion.

XI. Of reversing Fines.] Fines can only be reversed by writ of error, being deemed judgments given in a court of record. Error may, therefore, be brought in B. R. at any time within twenty years after fine levied; but it must be by a party or privy to the judgment.

The transcript of the note of the fine is removed into B. R. and thereon errors are assigned. If the court think the errors fatal, and that the fine ought to be reversed, a certiorari issues to the chirographer to certify the very note of the fine, which when certified to the court, it is actually cancelled; or a writ may be sent to the treasurer and chamberlains of the Exchequer to take the fine off the file.

As the proceedings in a suit are considered in fieri until judgment is given (although the record be made up), a fine may be amended or invalidated at any time during the term in which it is levied, by motion in the court of C. B.

CHAP. XIX.

OF A RECOVERY.

As a Fine is the compromise of a fictitious suit, so a recovery is a fictitious suit carried on to judgment. Shep. Touch. 37. 2 Bl. Com. 357. Watk. Pr. 232.

A Common Recovery for the assurance of lands, is therefore a judgment obtained in a fictitious suit, brought against the tenant of the freehold, in consequence of a default made by the person who is last vouched to warrant in such suit.*

By the common law, the person who had the immediate freehold, or freehold in possession, was to answer the claims of strangers: and against him the writ or præcipe was to be brought. Hence, to this day, no recovery for the assurance of lands can be suffered, unless the recoveree has the freehold in possession in him; as the recovery in such suit is founded on the præcipe, as will be shown hereafter, and which can only be sued out against the immediate tenant of the freehold. Shep. 37. Co. Lit. 104 (b). Ibid, 121. 2 Bl. Com. 358. Watk. Pr. 232.

*The learning respecting RECOVERIES is very diffuse and intricate, but, nevertheless, most ably treated of in Shep. Touch. cap. 3.