BOOK II. A LAW, thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as the folemn act of the legislature. It is not therefore allowed to be a publick, but a mere private statute; it is not printed or published among the other laws of the feffion; it hath been relieved againft, when obtained upon fraudulent fuggeftions; it hath been holden to be void, if contrary to law and reason; and no judge or jury is bound to take notice of it, unless the fame be specially fet forth and pleaded to them. It remains however enrolled among the public records of the nation, to be for ever preferved as a perpetual testimony of the conveyance or affurance fo made or cftablished. II. THE king's grants are also matter of public record. For, as St.Germyn fays, the king's excellency is so high in the law, that no freehold may be given to the king, nor derived from him, but by matter of record. And to this end a variety of offices are erected, communicating in a regular subordination one with another, through which all the king's grants must pass, and be transcribed, and enrolled; that the fame may be narrowly infpected by his officers, who will inform him if any thing contained therein is improper, or unlawful to be granted. These grants, whether of lands, honours, liberties, franchifes, or ought befides, are contained in charters, or letters patent, that is, open letters, literae patentes: so called because they are not fealed up, but expofed to open view, with the great feal pendant at the bottom; and are ufually directed or addreffed by the king to all his fubjects at large. And therein they differ from certain other letters of the king, fealed alfo with his great feal, but directed to particular perfons, and for particular purposes: which therefore, not being proper for public inspection, are clofed up and fealed on the outfide, and are thereupon called writs clofe, literae claufae, and are recorded in the clofe-rolls, in the fame manner as the others are in the patent-rolls. GRANTS or letters patent must firft pafs by bill: which is prepared by the attorney and folicitor general, in confequence 4 Rep. 12. © Richardson v. Hamil on. Cane, 8 Jan. 1773. M'Kenzie v. Stuart. Dam. Proc. 13 Mar. 1754 e Dr. & Stud. b. 1. d. 8. of of a warrant from the crown; and is then figned, that is, fubfcribed at the top, with the king's own fign manual, and fealed with his privy fignet, which is always in the custody of the principal secretary of state; and then sometimes it immediately paffes under the great seal, in which case the patent is fubfcribed in these words, "per ipfum regem, by the king himself." Otherwise the course is to carry an extract of the bill to the keeper of the privy feal, who makes out a writ or warrant thereupon to the chancery; so that the fign manual is the warrant to the privy seal, and the privy seal is the warrant to the great feal: and in this last case the patent is fubscribed, "per breve de privato figillo, by writ of privy feal." But there are fome grants, which only pafs through certain offices, as the admiralty or treasury, in confequence of a fign manual, without the confirmation of either the fignet, the great, or the privy seal. THE manner of granting by the king does not more differ from that by a fubject, than the conftruction of his grants, when made. 1. A grant made by the king, at the suit of the grantee, fhall be taken most beneficially for the king, and against the party: whereas the grant of a fubject is construed moft ftrongly against the grantor. Wherefore it is usual to infert in the king's grants, that they are made, not at the fuit of the grantee, but "ex fpeciali gratia, certa fcientia, et mero motu regis ;" and then they have a more liberal construction ". 2. A subject's grant shall be construed to include many things, befides what are expreffed, if neceffary for the operation of the grant. Therefore, in a private grant of the profits of land for one year, free ingrefs, egrefs, and regress, to cut and carry away those profits, are also inclufively granted & ; and if a feoffment of land was made by a lord to his villein, this operated as a manumiffion"; for he was otherwife unable to hold it. But the king's grant fhall not enure to any other intent, than that which is precifely expreffed in the grant. As, if he grants land to an alien, it operates nothing; for BOOK II. fuch grant fhall not alfo enure to make him a denizen, that so he may be capable of taking by grant. 3. When it appears, from the face of the grant, that the king is mistaken, or deceived, either in matter of fact or matter of law, as in cafe of falfe fuggeftion, misinformation, or mifrecital of former grants; or if his own title to the thing granted be different from what he fuppofes; or if the grant be informal; or if he grants an estate contrary to the rules of law; in any of thefe cafes the grant is absolutely void *. For instance; if the king grants lands to one and his heirs male, this is merely void for it fhall not be an estate-tail, because there want words of procreation, to afcertain the body out of which the heirs fhall iffue: neither is it a fee-fimple, as in common grants it would be; because it may reasonably be supposed, that the king meant to give no more than an estate-tail1: the grantee is therefore (if any thing) nothing more than tenant at will". And, to prevent deceits of the king, with regard to the value of the eftate granted, it is particularly provided by the statute I Hen. IV. c. 6. that no grant of his shall be good, unlefs in the grantee's petition for them, exprefs mention be made of the real value of the lands. III. WE are next to consider a very usual species of afsurance, which is alfo of record; viz. a fine of lands and tenements. In which it will be neceffary to explain, 1. The nature of a fine; 2. It's several kinds; and 3. It's force and effect. 1. A FINE is fometimes faid to be a feoffment of record": though it might with more accuracy be called, an acknowlegement of a feoffment on record. By which is to be understood, that it has at least the fame force and effect with a feoffment, in the conveying and afsuring of lands: though it is one of thofe methods of transferring eftates of freehold by the common law, in which livery of seifin is not neceffary i Bro. Abr. tit. Patent. 62. Finch, L. 110. k Freem. 172. Finch. 101, 102.' m Bro. Abr. tit. Eftates. 34. tit. Patents. 104. Dyer. 270. Dav. 45. a Co. Litt. 50. to to be actually given; the fuppofition and acknowlegement thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine may be defcribed to be an amicable compofition or agreement of a fuit, either actual or fictitious, by leave of the king or his juftices; whereby the lands in queftion become, or are acknowleged to be, the right of one of the parties. In it's original it was founded on an actual fuit, commenced at law for recovery of the poffeffion of land or other hereditaments; and the poffeffion thus gained by fuch compofition was found to be fo fure and effectual, that fictitious actions were, and continue to be, every day commenced, for the fake of obtaining the fame fecurity. A FINE is fo called becaufe it puts an end, not only to the fuit thus commenced, but alfo to all other fuits and controver fies concerning the fame matter. Or, as it is expressed in an antient record of parliament, 18 Edw. I. "non in regno "Anglia providetur, vel eft, aliqua fecuritas major vel folennior, "per quam aliquis flatum certiorem habere poffit, neque ad ftatum "fuum verificandum aliquod folennius teftimonium producere, quam finem in curia domini regis levatum : qui quidem finis fic "vocatur, eo quod finis et confummatio omnium placitorum effe « debet, et hac de caufa providebatur." Fines indeed are of equal antiquity with the first rudiments of the law itself; are spoken of by Glanvil and Bracton in the reigns of Henry II, and Henry III, as things then well known and long. established; and inftances have been produced of them even prior to the Norman invafion. So that the ftatute 18 Edw. 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 affured, commences an action or fuit at law against the other, • Co. Litt. 120. P 2 Roll. Abr. 13 9 1.8. c. 1. VOL. II. D 11. 5. t. 5. c. 28. generally vey generally an action of covenant', by fuing out a writ of praecipe, called a writ of covenant : the foundation of which is a fuppofed agreement or covenant, that the one fhall conthe lands to the other; on the breach of which agreement the action is brought. On this writ there is due to the king, by antient prerogative, a primer fine, or a noble for every five marks of land fued for; that is, one-tenth of the annual value ". The fuit being thus commenced, then follows, 2. THE licentia concordandi, or leave to agree the suit ". For, as foon as the action is brought, the defendant, knowing himself to be in the wrong, is fuppofed to make overtures of peace and accommodation to the plaintiff. Who, accepting them, but having, upon fuing out the writ, given pledges to profecute his fuit, which he endangers if he now deferts it without licence, he therefore applies to the court for leave to make the matter up. This leave is readily granted, but for it there is alfo another fine due to the king by his prerogative, which is an ancient revenue of the crown, and is called the king's filver, or fometimes the poft fine, with refpect to the primer fine before-mentioned. And it is as much as the primer fine, and half as much more, or ten fhillings for every five marks of land; that is, three-twentieths of the fuppofed annual value *. 3. NEXT comes the concord, or agreement itself y, after leave obtained from the court; which is ufually an acknowlegement from the deforciants (or those who keep the other out of poffeffion) that the lands in queftion are the right of the complainant. And from this acknowlegement, or recognition of right, the party levying the fine is called the A fine may alfo be levied on a writ of mefne, of warrantia chartae, or de confuetudinibus et fervitiis. (Finch. L. 278.) See appendix. N°. IV. § 1. ☐ 2 Inft. 511. w Append. N°. IV. $2. In the tines or fri feodal jurifdiction, if a vafal had commenced a fuit in the lord's court, he could not abandon it without leave; left the lord fhould be deprived of his perquifites for deciding the cause. (Robertfon. Cha. V. i. 31.) * 5 Rep. 39. 2 Inft. 511. Stat, 32 Geo. II. c. 14. ¥ Append. No. IV. § 3. cognimor, |