Selected quad for the lemma: law_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
law_n	common_a	court_n	equity_n	4,332	5	10.6896	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A49814	A Discourse of fines shewing by what easie, althought corrupt and unlawful, method of practice it may happen, that any person or his heirs in England, at one time or other, to be legally defrauded and disinherited by abuses in fines ... / by T. L.	T. L., of Lincolns-Inn, Esq.	1670 (1670)	Wing L73; ESTC R5079	9,953	13

A DISCOURSE OF FINES SHEWING By what easie although corrupt and unlawful method of practice it may happen that any person or his Heirs in England at one time or other to be legally defrauded and disinherited by abuses in Fines Stabitur presumptioné donec probatur in contrarium Quod alias bonum justum si per vim vel fraudem petatur malum injustum est Lit. cap. Remitter By T. L. of Lincolns-Inn Esq Fines at the Common Law and confirmed by divers Statutes THey were anciently levyed before the Justices of the Court of Common-Pleas in Court to the intent the said Justices might be fully satisfied and judge the Conusors of such Fines to be the parties themselves of full age free from Dures Ideocy and Lunacy And if they doubted whether it was the party then proof was to be made to them of it And also if a Feme-covert be one that she be solely and secretly examined as to her age consent and consideration for her levying such Fine and be acquainted with the nature of it lest that her Husband should by any threats or fraud endeavour the obtaining her Estate by any undue and unlawful practice And if the Court were unsatisfied as to his or her age then they to put him or her to their Oath And if not satisfied therewith then such parties to make proof thereof by the Church-Book or otherwise The Common Law as to the manner of it is confirmed by the said Statute the words of which Statute be that such Fine to be acknowledged by the party himself who ought to be of full age Stat. de Finibus 18 E 3. of good memory out of Prison c. And if a Feme-covert be one she must be examined by four of the said Justices as to her consent c. The reason given by the said Statute and reason of the Common Law why there is used such solemnity in levying of Fines is a Fine being a Record of a high nature and will not be presumed to lye and will admit no Averment against it self It being taken for granted in every Case where a Fine is levyed that there hath been the aforementioned care and examination and that the Court hath been fully satisfied that such Conusor was the same party of full age free from Ideocy Lunacy and Dures The Statute 32 H. 8. maketh exception of Infants Ideots c. levying of Fines and divers other Statutes so as 't is evident that such persons neither by the Common or statute-Statute-Laws of the Realm are intended to make any disposal of their Estates The said Statute reciting Whereas there were many aged and impotent persons that lived in remote places of this Kingdom Stat de Carlile 15 E. 2. who by no means could come before the Justices in Court to levy Fines so as to settle their Estates To prevent which inconvenience the said Statute doth provide two or one of the Justices by the assent of the residue of the Bench to visit the party so diseased And if one go he shall take with him an Abbot or Prior or Knight of good fame and credit And hereof the Writ of Dedimus Potestatem had its beginning and intended to be granted in such cases onely where the parties were not able to come to the Court and accordingly was framed Ae praefatus A adeo impotens existit quod absque maximo sui corporis periculo usque ad Westm ad diem in brevi praed content ad recognitionem quod in hac parte requiritur faciend c. Which form albeit continueth to this day yet sometimes the Conusans is taken of them which are in health and able to travel and sometimes when the Conusors are in health and in Town to the apparent abuses of the power given by the Dedimus and to the ruine of Families A Dedimus Potestatem is sometimes given to a Serjeant at Law or Knight with other persons joyned with them Any two of which may return the Caption All which persons are to inspect the persons and examine them and be satisfied that they be the same persons of full age not Ideots or Lunaticks and free from Dures But in case there be no Knight at the Caption then is one of the Justices of the Court to give an Allocatur or allowance for passing the same The Chief Justice can ex Officio take a Fine The common abuses used in levying of Fines are where one person doth represent another in Case of Infants in Case of Non compos mentis in Case of Dures or compulsion and in Case where a Feme-covert is cheated in the uses of such Fines or not examined The common way as these abuses are hatch'd and framed in deceit of the Law and Court of Common Pleas are either by Dedimus Potestatem directed to Mercenary persons who value not their reputation or such as connive at or contrive the doing of it ignorant persons in such affairs And in some Cases where such Commissioners and Courts themselves are deceived of all which I shall give an account and thew what remedy hath been formerly used to recompence the parties abused by such practices And what are the remedies at this day As also how just the Law is in Cases of the like nature in lesser concerns The Case was that Hubert being convicted in Star-chamber by Bill exhibited against him for procuring one Webster to counterfeit himself to be one Gellibrand 39 Eliz in the Star chamber Huberts case Crokes Report and to acknowledge a Fine in his name before Commissioners procured for that purpose of Gellibrands land The sentence in that case was that he should make Fine to the Queen and should be imprisoned and that the Fine should be void if it could be done by entring a Vaeate if it could not then Hubert by Fine or otherways as the said Gellebrand should devise should reconvey the Land to him and his Heirs in the same manner as it was before at the time of the Fine levied My Lord Coke in his 12 Rep. in Hu●gates Case says that this Fine could not be vacated so that Gellibrand was otherways relieved The Earl of Exeter bought a Lordship in Lei●●ne●shire of a Gentleman who had formerly made his Wife a Joynture of it T●● ●re 〈◊〉 the S●●●●ch 〈◊〉 who covenanted with his Lordship that he and his Wife would levy a Fine of it but could not get his Wife thereto but he and another woman whom he suborned and hired to come in his Wifes place and name to joyn with him to levy a Fine which accordingly passed at the Bar of the Court of Common Pleas and shortly after the Gentleman dyes and his true Wife entred and claimed her Joynture The business being brought into the Star-chamber and there proved the said Earl was glad to allow her her Joynture or that which was equivalent but the said Fine stood good against her The Statute of 21 Jac. 26. doth provide that any person acknowledging

and pass the same And this when the Conusor might well come to the Court to acknowledge the same What acts Feme-Coverts are capable of doing not being of Record WIthout doubt our Ancestors if they had thought it reasonable or convenient that a man having married a Wife should dispose of her Estate as he pleased would not have tied him up so strictly as they have by the Statute of 32 H. 8. cap. 28. where they have provided That no Husband shall make any Lease of his Wifes Inheritance without her joyning in it And although she do it must be thus qualified That the Rent be reserved to the Husband and Wife and to the Heirs of the Wife And also must be reserved the Rent it hath yielded within twenty years and such Lease not to exceed 21 years or three Lives It doth also provide notwithstanding all this regular caution That the Wife be of full age And every Lease made by the Husband and Wife that is not thus qualified is voidable Before the Statute no Feme-covert could make a Lease but for her own life The Statute and Common Law in all Cases doth give great respect to persons that claim by Inheritance insomuch that my Lord Coke says That if it were possible that two persons could have an equal title to any one Estate the one claiming by Inheritance the Law would prefer his title before the other And nothing is more sacred to any person then his birth-right nor any thing a greater spur to any persons honest industry then the thought and moral certainty of his Relations reaping the fruits of it The Star-chamber being put down there is now left no remedy to any person that is injured by the undue procuring of Fines but by the Justice of Parliament which are uncertain as to their sitting and so the proceeding therein tedious and chargeable which makes many an injury to the raine of several persons pass unexamined esteeming the remedy as bad as the disease if it happen in a small concern The want of relief and severe punishing of offences of this nature makes the same seem justifiable There is hardly any Countrey-Sollicitor or Attorney but is able to advise how a fine may be levied and procured in any of the Cases beforementioned and it being good being done they matter not how they get it 'T is certain there hath been more abuses in Fines since the putting down the Star-chamber then ever was before there being no Case in the Year-books and other ancient Law-books where any persons incapacited by Law ever levyed any Fines The solemnity beforementioned being so duly observed by the Court of Common Pleas as 't was almost impossible to get any such thing done which solemnity is at this day observed by the Court so that every person that acts any such thing does it by Dedimus Potestatem directed to such Commissioners as are before mentioned In Michaelmas Term 1667 there was examined in the Common Pleas a dangerous president but remarkable Case of an Infants levying a Fine which was that a Gentleman within ten miles of London in Michaelmas Term 1664 procured marriage with an Heir who lived about the same distance against her Mothers and Guardians consent Her Mother and next Heir apparent do the same Term repair to the Court of Common Pleas where her Mother doth make Oath That her Daughter was an Infant of eighteen married against her consent and Heir to Lands of 500 l per annum value And upon this prayed the Court to take notice thereof and that if such persons should attempt to procure any Fine of the Infants Lands that they would not permit it The Court do accordingly take notice thereof and for further security do make a positive Rule prohibiting any Fine to be levyed during the minority of this Infant and do order the same to be left with the Clerk of the Kingsilver which was accordingly done Notwithstanding all which and her Husband knowing his Wife to be an Infant and of the Rule of Court prohibiting the same he doth in Trinity Term following procure a Dedimus Potestatem directed unto two Souldiers procured for that purpose who did the same Term in a Councellors Chamber in the Temple the Court of Common Pleas sitting at Westminster take the acknowledgement of a Fine from the Infant she being in health never examining her as to her age pretending themselves ignorant in such affairs and what they did was by the advice of the Councellor there present who knew her to be an Infant and do there make a Deed leading the uses of this Fine settling the Estate to the Husband and his Heirs Afterwards they came to one of the Justices of the said Court who not remembring the Rule doth unawares give an allowance for passing the same and do no long after in the Sickness-time come to the Kingsilver-Office and do there prevail with a Clerk of that Office to pass the same The Wife dyes in August 1667 without any Issue of her body Her Heir next Term complains to the Court and shews these practices as also that the Wife notwithstanding her incapacity of Infancy was manifestly surprized and cheated in the uses of the said Fine she being informed it was for one use and it made to another Notwithstanding all undue procuring of the said Fine in deceit and contempt of the Court their own Order against it and the Infancy of the woman confest on all hands yet could not the Court vacate the said Fine and declared that the same could not be vacated but by Parliament But because the Husband knew of the Rule of Court and did practice the procuring the said Fine in contempt and deceit of the Law and Court the Court committed him to the Fleet and fined him Note that almost every Estate in England either hath are or may be enjoyed by Infants or persons not qualified by the Law to dispose of their Estates if so what security hath or may have any person that shall or may claim any Estate after them It may be answered that if any such person make any Deed of Gift Lease Release or such like act it not being of Record shall not bind him nor his Heirs And further that he cannot dispose of the same by any Act of Record The Court of Common Pleas taking such care to prevent unqualified persons levying of Fines as they will not suffer any such Records to pass in their Court being against the Statute and Common Law But we find by experience that unqualified persons have disposed of their Estates by tricks devised in deceit of the Court and that the parties and their Heirs are remediless because the Court cannot help them And this become a common practice The best way is if the Heir or other Relation suspect any such trick to be put on the Court to give notice thereof to the Court who will take particular care to prevent it This also may prove as ineffectual as in the last

Case and as remediless if once done for 't is the act of the Court and presumed to be done with such solemnity and the Court fully satisfied the party to be no Ideot Lunatick Infant the same person and if Feme-covert to be secretly examined and informed of the nature and quality of the settlement to prevent their Husbands over-reaching them by any fraud or practice although it be done by a Commission directed as it was in a late Case examined in that Court to Cleavers of Wood Souldiers or any other inferior ignorant persons whatsoever and against the rule of the whole Court The Nature of an Inspection THe formality of which is that the parties must voluntarily come into Court that the Court may see them and take proof of their Infancy the Court taking themselves to be sole Judges in this point which they enter on the Record and the same is avoided by Writ of Error and this to be done before they come to the age of one and twenty In several Cases I meet this Maxim Vbi eadem ratio ibi eadem lex which if I fail not doth not follow in this particular The intent of an Inspection is onely to satisfie the Court as to the parties Infancy and so to make it void If the Court can be otherways satisfied as to the Infancy there is eadem ratio that it should be void but not eadem Lex as in the Case last mentioned where the Court was fully satisfied both before the Fine levyed and afterwards upon the examination of the practice Deceits which happen by Inspections There is very seldom any of these Inspections but there is some deceit intended by them either where an Infant hath levyed a Fine and some one hath upon the reputation thereof lent moneys and taken the Lands for security or purchased the same to deceive such person either of the Land or Money they then come to be inspected and so avoids the security or purchase and gets both the Land and money as it was in one Sherlocks Case cited in Styles Reports and divers other Cases of like nature The Maxime such a Purchasor hath for his Money is Caveat Emptor The reason why there are so few Inspections is 1. Because such Infants must be inspected before they come to age so as they often come of age before they understand the nature of it and when they understand it they cannot be permitted it being to be done in the Minority If a Feme-covert-Infant levy a Fine with her Husband she cannot be admitted to bring a Writ of Error in her own name but her Husband must joyn with her who will not suffer it unless it be for his benefit As it was in Trinity Term 1669 declared in the Court of Common Pleas when a Husband had unduly procured his Wife an Infant under twenty to levy a Fine of her Land The Heir apparent injured by the same doth the same Term complain to the Court The Husband and Wife are ordered to come into Court The Wife informs the Court that it was her desire what she had done and that she did freely acknowledge the same The Court told her that she was incapable of consenting and doing what she desired And then made an Order that her Husband and she should joyn in a Writ of Error to vacate the said Fine Which Order the Husband disobeying the Court committed him to the Fleet but could not by any means vacate the said Fine or otherwise compel the Husband to joyn So that if the Husband dye not before she attain her age although she should never so much desire the reversing of the same yet this inconsiderate and unlawful act of hers shall be conclusive to her Heirs and Self 3. Because such Infant doth often dye under age without inspection and so cannot be brought to be inspected 4. In some Cases where such Infants are deceived in declaring the uses of such Fines such Fines and Deeds leading the uses thereof being commonly done after a Clandestine manner without the advice privity or knowledge of any of the Infants friends who should advise them and they telling them that it is for one use and they make it o another of all which abuses there are Cases too plentiful I am incertain whether the Dedimus Potestatem be granted upon a bare suggestion of infumity and inability or upon an Affidavit It is all one whether if it be false An Oath being onely a more solemn manner of lying and he that will suggest a lye to a Court will scarce stick to swear one The Judge who alloweth the Fine doth give the Commissioner or Sollicitor who are to be present at the acknowledgement their Oath who are to satisfie the Judge as to the manner of the acknowledging the same and that the same was according to Law which is that they were not Infants Ideots c. If the Judge be satisfied with such Oath he allows the Fine Not withstanding which persons incapacitated by Law do levy the same such Practicers procuring a Knight to take the Caption and so it passes without Oath or an Affdavit-man for that purpose Practicers of unlawful things seldom stumole at a false Oath if that may effectually forward their practices From the validity or such practices there is raised a corrupt Maxime Factum valet quod sieri non debet There is very little difference in honesty and justice between a Fine obtained by such fraud and practices as aforesaid and a Deed that is forged rased or forced The difference which is is this That a man hath liberty to defend himself against the one but is concluded by the other How unreasonable is it that a Fine being good being levyed upon the presumed solemnity and care taken before it was levyed which solemnity and care is avoided so that the solemnity and care in these cases is the equity and reason why such Fines are good which solemnity and care being wanting the Law is wanting of its equity and reason and where that happens to be it is Summum jus which is accounted Summa injuria Since it is evident that it is provided by the Laws of this Realm that no one person shall represent another to acknowledge any thing on Record to the prejudice of that other nor any Madman or Ideot persons under age persons forced against their wills to make any settlement or disposal of their Inheritances to the prejudice of themselves or Heirs and that there hath been tricks and devices found in Law whereby such practices are done in deceit thereof and against the particular care of the Court they having notice and making Orders to prevent such abuses to the ruine of Families and if not prevented will be to the ruine of many more And that there hath been formerly a remedy by which many a wronged person by such practices had relief and that such remedy is taken away and the abuse become almost remediless It may well consist with the honor and interest of a Parliament to provide a remedy whereby such offences should be severely punished and the persons wronged by such practices relieved against them as they formerly were That these abuses by Fines may be remedied is the wishes of T. L. FINIS