Introduction
Procedure

Sponsor

Institute of Historical Research

Publication

Author

C.W. Foster (editor)

Year published

1920

Supporting documents

Pages

18-31

Citation Show another format:

'Introduction: Procedure', Final Concords of the County of Lincoln: 1244-1272 (1920), pp. XVIII-XXXI. URL: http://british-history.ac.uk/report.aspx?compid=53608 Date accessed: 29 November 2014.


Highlight

(Min 3 characters)

VII. PROCEDURE

(1) The Original Writ.

When it was wished to levy a final concord, whether the litigation were real or feigned, the first step was taken by the demandant, who began an action at law against the tenant by suing out an original writ in the royal chancery, a writ, that is, which would originate a suit. These original writs were of many different sorts, and of them something must presently be said. (fn. 1) The grant of the original writ was generally recorded on the Fine rolls from the reign of John, and for it a payment, which came to be known as the primer fine, was due to the king. In the time of Henry III the charge for a writ which was intended to originate a fictitious suit seems generally to have been half a mark or a mark. From that time until the reign of Henry VIII the cost of the writ was half a mark, unless the yearly value of the land to be conveyed was less than forty shillings, in which case no payment was demanded. In Blackstone's day the primer fine was equal to one-tenth of the yearly value. (fn. 2)

(2) The Licence to Agree.

On the return-day (fn. 3) named in the writ, or after the lapse of a few days' grace, the parties appeared in the king's court either in person or by attorney. Then, in the course of the action if the litigation was real, or immediately if it was fictitious, they asked leave to compromise the action. To quote the words of the statute Modus Levandi Fines, which is generally ascribed to 18 Edward I:

A pleader shall say this, Sir Justice, Conge de accorder; and the Justice shall say to him, What saith Sir R. and shall name one of the parties; Then, when they be agreed of the sum of money that must be given to the King, the Justice shall say, Cry the Peace. (fn. 4)

The payment for the licence referred to in this extract was known, at any rate in later days, as the King's Silver or the post fine. Such payments appear in the time of Henry II (fn. 5) and Richard I (fn. 6) upon the Pipe rolls, and in the thirteenth century on the Fine rolls (fn. 7) and the Assize rolls, (fn. 8) and from 1272 on the De Banco rolls.

The amount of the payment varied in the twelfth and thirteenth centuries from a few shillings to about ten marks, half a mark or one mark being the commonest charge to the end of the twelfth century, and half a mark being the usual sum in the time of John. The payments for a concord, 'pro concordia (fn. 9) ,' or, more fully, 'ut concordia possit fieri inter eum et filios presbiteri (fn. 10) ' or for a fine made, 'pro fine facto inter A. et B. in curia Regis (fn. 11) ,' seem as a rule to have been heavier (fn. 12) , and perhaps these formulas, though not to the exclusion of the formula pro licencia concordandi, mark cases of real litigation. Probably also when, in the early part of the thirteenth century, more than half a mark is charged for a licence to agree we may conclude that the litigation is collusive. In Blackstone's day the post fine was equal to threetwentieths of the yearly value of the land, that is half as much again as the primer fine (fn. 13) . Some specimens of licences to agree are given below in the Formulary.

The licence to agree was not always given as a matter of course. Thus we are told in a roll of the curia regis that, in 1194, in a plea touching the fee of one knight in Bucknall, a day is given to the parties in eight days of St. Hilary, and that meanwhile speech must be had with the chief justiciar, archbishop Hubert Walter, touching the concord wherefor they craved a licence (et interim cum archiepiscopo loquendum est de concordia unde petierunt licenciam (fn. 14) ).

Licences to agree seem often to have been sought in the mere hope of a compromise being arranged. There is real litigation; the suit is begun, and adjourned to a specified day or to the coming of the justices in eyre; meanwhile the parties have a licence to agree (interim licenciam habent concordandi (fn. 15) ). There is no certainty, however, that a concord will be reached: thus a suit is begun, and a day is given, and on that day the matter is to be in the same state as at present unless there shall be a concord (in eodem statu quo nunc est nisi concordia fuerit (fn. 16) ); or a day is given, and the assize is to come unless in the meantime the parties are brought into concord (tunc veniat assisa nisi interim concordentur, uel nisi interim concordari possint (fn. 17) ).

A licence to agree, might of course be granted when the parties wished to settle an action by leave of the court without any thought of a solemn final concord made by a chirograph. Thus we find a licencia concordandi granted to settle an action relating to chattels (fn. 18) ; and in a similar suit the parties are brought into concord (concordati sunt) to the effect that Adam has by agreement granted to Peter the half of those chattels (Adam paccavit [Petro] medietatem illorum catellorum (fn. 19) ). Licences of concord are also granted in a plea of faith, (fn. 20) when land has been taken into the king's hand, (fn. 21) in a plea of debt, (fn. 22) in a plea of corn carried away, (fn. 23) in a plea of house-breaking, (fn. 24) in a plea of fighting and wounding on the part of two bodies of men of different lords, (fn. 25) on an appeal of robbery with violence, (fn. 26) on an appeal of breach of the king's peace, (fn. 27) on an appeal touching rape. (fn. 28) In such cases there could be no final concord made by a chirograph since such concord necessarily concerned some interest in land, (fn. 29) and was not available in suits relating to chattels or for the purpose of settling breaches of the king's peace.

Since a plea of novel disseisin (fn. 30) presupposed a breach of the king's peace, no one whose aim was to obtain a final concord would begin his action by suing out a writ of novel disseisin. When however, A has unjustly and without a judgement disseised B of his free tenement, he has not only broken the king's peace, but he has also injured B; and while he must make his peace with the king by the appropriate fine, he may settle the damages by a compromise with B. (fn. 31) Even if this compromise took the form of a final concord it was seemingly unnecessary for the parties to obtain a fresh writ. (fn. 32) 'Adam brought a writ of novel disseisin against Stephen, and withdrew, and put himself in mercy, to wit one mark; and they craved a licence to agree, and they had it, to wit for each of them [a payment of] half a mark' (fn. 33) The abbot of Kirkstead gave to the king half a mark for a licence to agree with John son of Jordan touching a novel disseisin; and the same John gave one mark for the same. (fn. 34)

(3) The Acknowledgement.

The concord or agreement generally took the form of a solemn acknowledgement (recognicio), made in court by the tenant, that the land which was the subject-matter of the suit was the right of the demandant. Hence the tenant came to be called the cognizor or conusor, and the demandant to be known as the cognizee or conusee. It was felt, however, to be a grievance that the parties should be bound, in spite of sickness or infirmity, to make what might be a considerable journey. To remedy this hardship a statute (fn. 35) of uncertain date, provided that the conusor, on shewing reasonable cause, might sue out a writ of dedimus potestatem (fn. 36) directed to certain justices or other commissioners, and bidding them go to the would-be conusor in order to receive his acknowledgement and certify the same openly and distinctly in court before the justices. The statute no doubt regularized what seems to have been a practice of long standing; for we have an instance of an acknowledgement being made before commissioners as early as the year 1183. (fn. 37) An endorsement upon a note of fine of 1316 runs:

Sybil who was the wife of John de Holme came before John de Mutford in the country by virtue of a certain writ of the lord the king to the same John directed to receive the acknowledgement of the aforesaid Sybil touching the aforesaid tenements, and also to testify the attornment which is in this behalf required; and she made acknowledgement (cognouit) and did fealty therefor, as the same John here records. (fn. 38)

In the reign of Elizabeth the chief justice of the Common Bench had acquired the privilege of receiving acknowledgments out of court without a writ of dedimus potestatem. (fn. 39)

(4) The Concord.

When the court had granted a concord an entry was made upon the Curia Regis rolls or on the Assize rolls that the parties had been brought into concord: 'concordati sunt,' (fn. 40) 'per licenciam concordati sunt,' (fn. 41) 'concordati sunt per cirographum,' (fn. 42) 'Emma . . . que . . . pacata fuit in curia domini Regis per concordiam,' (fn. 43) 'concordia prolocuta inter eos,' (fn. 44) 'dominus Rex concordauit ipsum petentem et Alanum.' (fn. 45) The last two of these formulas emphasize the fact that it was the court which pronounced the word 'Pax.' (fn. 46) The compromise might be arranged outside; 'hec concordia fuit formata per Hugonem de Chaucumbe', it is said in one case (fn. 47) ; or, in another instance, 'per consilium amicorum suorum' (fn. 48) ; but the formal concord made between the parties was the act of the court. (fn. 49) In a suit in 1202 it is witnessed that A made peace between the parties without the licence of the justices, and therefore he is in mercy. (fn. 50) True it is that this is a criminal case, an appeal touching rape, but the principle would hold a plea relating to land.

Sometimes the terms of the concord are set out at length on the roll very much in the form of a note of fine, (fn. 51) or quite shortly. The earliest extant roll of the curia regis, relating to the Trinity term of 1194, about a year before the institution of feet of fines, (fn. 52) supplies two examples of Lincolnshire concords recorded in full. (fn. 53) Still earlier enrolments of final concords are found upon the Pipe rolls. (fn. 54) At the beginning of the thirteenth century the terms are still occasionally given in full on the rolls, which thus at times preserve concords of which no feet are now to be found. A Lincolnshire document of this sort will be found in an appendix. (fn. 55)

(5) The Note of Fine.

The next step was taken by an official, called the chirographer (fn. 56) who proceeded to draw up a record, called a note of fine, containing the names of the parties, particulars of the land, and the terms of the compromise. Notes of fines date from the twelfth century: on 14 May, 1200, Walter and Ralph were brought into concord in the king's court, and an entry made between the lines of the roll states that this concord was drafted from a certain note made at the time when the king was duke of Normandy, and not yet king (ista concordia tracla fuit a quadam nota facta tempore quando dominus Rex fuit Dux Normannorum nondum Rex (fn. 57) ).

The notes of fines for Lincolnshire preserved at the Public Record Office begin with a bundle docketed 'Henry III—Edward II, (fn. 58) ' containing one hundred and forty-three documents. Among the notes of 'Double Counties' in the same bundle an unnumbered document, of which the date is 32 Edward I, relates to land in Yorkshire and Lincolnshire. (fn. 59) In many cases no year is mentioned; in the rest the regnal year is given, but the reign is never specified. The handwriting, however, supplemented by internal evidence, points to the latter half of Edward I's reign and the reign of Edward II. (fn. 60) In ten cases the date is established by the corresponding foot of fine.

When the practice of dating notes of fines was begun late in the thirteenth century, the date that they bear is the day on which the original writ was to be returned into court. In that period, when the litigation was probably always fictitious, the licence to agree was then immediately granted, and the parties were usually brought into concord, concordati sunt, though sometimes the bringing into concord was postponed. Such postponement is recorded in two of the notes: no. 113, dated 25 April, [1316], says that peace was pronounced on 6 October; and no. 117, dated 13 October, [1316], states that the date of the peace was 27 January, [1316–17]. In the twelfth and early thirteenth centuries, when the litigation was often a reality, there was generally an interval between the licence to agree and the concord. One of the commonest entries on the earliest rolls is to the effect that a day is given to the parties, and meanwhile let them have a licence to agree (et interim habeant licenciam concordandi (fn. 61) ).

It is a remarkable fact that of the one hundred and forty-four notes of Lincolnshire fines prior to the reign of Edward III, only ten relate to final concords of which the feet are known to exist, (fn. 62) while a corresponding foot has been found for each of a large number of notes of fines of Edward III which have been examined. It is unlikely that the feet have perished in the case of all but ten of the one hundred and fortyfour notes of the reigns of the first two Edwards; and the facts seem to suggest the conclusion that most of the notes of those fines which were completed by a chirograph and a foot in those reigns were either not preserved or have perished, or that they are amongst the unsorted documents in the national archives. In that case the bundle labelled 'Henry III—Edward II,' represents the cases in which, for one reason or another, the concord was not confirmed by the court (fn. 63) when the day for the parties to receive their chirograph arrived, (fn. 64) while the ten notes for which there are corresponding feet, have strayed into the bundle. (fn. 65) In Edward III's time, on the contrary, the notes which have corresponding feet have been for the most part preserved, while the notes of the cases which never reached a chirograph have either not been preserved, or are among the unsorted records.

The Formulary contains an original writ ordering the treasurer to make a scrutiny of the notes of fines, and to send a transcript of a specified note into the chancery. (fn. 66)

(6) The day given for receiving the Chirograph.

The words concordati sunt on the rolls of the twelfth century are generally followed by a statement that a day is given to the parties to receive their chirograph, that is the indented record of their final concord:

dies datus est eis ad habendum [uel capiendum uel recipiendum] cirographum suum in crastino sancti Andree apud Westmonasterium, (fn. 67) and very often an attorney is appointed to attend the court on that day: Robertus ponit loco suo Johannem filium Ricardi ad capiendum [uel recipiendum] cirographum. (fn. 67)

The mention of the dies datus ad recipiendum and the appointment of attorneys for that purpose begins to be found in the rolls much less often after the year 1200 unless there is some outstanding difficulty to be settled, or the attendance of tenants or others to be secured, (fn. 68) and we may probably conclude that that was the time when the practice of recording the particulars about the day and the chirograph at the end of the note of fine was adopted. At any rate we invariably find them so recorded on the earliest extant notes about the last decade of the thirteenth century. (fn. 69)

Contrary to what might be expected, the evidence shews that the parties did not, in our period, always receive their chirograph on the dies datus ad recipiendum cirographum. The evidence for the twelfth century is meagre, for it is difficult to find cases in which the necessary dates are given on the rolls and in which the corresponding foot of fine is also available. In one case the dies ad recipiendum is 3 May, 1198, (fn. 70) and in another 8 July, 1199, (fn. 71) while the feet are dated 6 May, 1198, (fn. 72) and 27 January, 1199–1200, respectively. (fn. 73) At other times there can have been little or no interval, for the parties are brought into concord on 13 October, 1199, (fn. 74) and the foot is dated 17 October (fn. 75) ; and again, on 27 October, 1199, a day is given, (fn. 76) and the foot is dated 3 November. (fn. 77)

In the thirteenth century, however, there seems generally to have been an interval between the dies datus ad recipiendum and the actual receipt of the chirograph. For a large part of the century little evidence is available in print; but when the notes of fines begin we find that out of the nine cases in which we have the corresponding feet, only twice (fn. 78) is the date of the foot, the date, that is, when the chirograph was actually completed, (fn. 79) the same as the dies datus ad recipiendum. In the other eight notes there is an interval of from three to fourteen return days.

On the dies datus the concord was subject to review by the court. Entries on the Coram Rege rolls shew that something might happen to delay the receiving of the chirograph, or perhaps to bar it altogether: a day is given to the parties for receiving their chirograph, and in the meantime a partition of the lands is to be made (fn. 80) ; a day is given, and a writ is issued to the sheriff to send four knights to Mabel to ascertain whether she claims anything in that land except dower (fn. 81) ; a day is given, and the tenants are then to come to make known if they claim any inheritance in the land, and Roger is to bring his charter that it may be torn up, and Thomas is to make his charter of the land which he grants to Roger. (fn. 82) Such entries open up a long vista of possible adjournments and delays. Sometimes the delay may be very long indeed: a case begins in 3 Edward III and is not finished until the eighteenth year of the reign (fn. 83) . Endorsements on the feet of fines shew that claims to the land or to some interest in it were often put in by third parties, (fn. 84) and such claims might well cause delay.

Sometimes on the dies datus the court refused to ratify the concord. Thus a note of fine, dated 25 April, [1316], records an acknowledgement by Walter Wylayn of Lincoln that the reversion of a messuage in Lincoln, which Gilbert de Thrysk holds for life, belongs to Hugh le Tygheler of Lincoln. A day is given to the parties on 13 June to receive their chirograph. An endorsement, however, states that afterwards, on 6 October, Gilbert comes and, in reply to the enquiry of the justices as to what right he claims in the tenements, states that they were given to him and Cicely his wife in frank marriage. Hugh could not answer this, and therefore Gilbert was without a day, and Hugh took nothing by the note. (fn. 85) In such a case the licence of concord seems to have been revoked. Mr. G. J. Turner (fn. 86) cites an entry of such a licence which has been cancelled with the marginal note: 'quia non acceptatur,' (fn. 87) while against another cancelled entry is written: 'postea quia finis leuare non potest, sicut curie uidetur, ideo predicta dimidia marca subtrahitur.' (fn. 88)

(7) The Engrossment of the Chirograph or Final Concord.

When the dies datus came, the parties were bound to appear before the court in person or by attorney prepared to take their parts of the chirograph (parati capere partes cirographi). (fn. 89) If they failed to put in an appearance the court would order them to be attached, and made to answer for their contempt of court. (fn. 90) In the fourteenth century, and no doubt earlier, the tenant or deforciant, the party who made the grant, was often required to find mainpernors or sureties for his appearance. (fn. 91)

On the dies datus the parties prayed that the fine might be engrossed (petunt quod finis ingrossetur (fn. 91) ), that is that the chirograph or indented record might be written out in a fair and legal hand. If all was in order the court granted the prayer, and we find endorsed on some of the notes of Edward III the words, 'Therefore let the aforesaid fine be engrossed (Ideo predictus finis ingrossetur (fn. 91) ), and later the word Ingrossetur alone, or even I, its initial letter. The chirographer (fn. 92) thereupon proceeded to draw up the chirograph or final concord from the particulars contained in the note. Sometimes full proof of the attornment of a tenant is lacking, but that does not always hinder engrossment: in 3 Edward III, A comes and says that B has attorned himself to him in the country, and craves that the fine may be engrossed at his peril, which the court grants. (fn. 91)

The date given in the chirograph was, until the end of Edward II's reign, (fn. 93) the day when the parties actually received their chirograph, which, as is mentioned above, (fn. 94) was a little later than the dies datus. When two dates are given in the feet of fines of the time of Edward I and Edward II, the first date is the dies datus and the second is the day on which the chirograph was delivered. In these cases of two dates it may be concluded that something had occurred to delay the grant of the chirograph.

The name 'final concord' is derived from the words with which the chirograph opens: 'Haec est finalis concordia.' (fn. 95) Its contents may be divided into four parts:

(i) The first part gives the place and date at which the final concord was levied, and the names of the king's justices and others who composed the court.

(ii) The second part gives the names of the parties to the action, and a description of the property which is the subject matter of the suit.

(iii) The third part specifies the form of action, and records that the tenant has granted or released the property to the demandant, or else that he has acknowledged it to be the demandant's right.

(iv) The fourth part specifies the benefit which the tenant or deforciant will receive for what he has done. This benefit may be a sum of money either substantial or nominal, or some rent or service, or some other interest in the same land, or in some other land, or perhaps some spiritual advantage, such as the fraternity and prayers of a religious house. This part will also record any reservations made by the tenant, such as remainders and reversions.

At first the chirograph consisted of two identical copies called the indentures or parts, one of which was delivered to each of the parties. These two parts were written upon the same sheet of parchment head to head, and then cut asunder in a serrated or sinuous line (fn. 96) , so that when brought together at any time the two edges tallied and proved that the documents produced were the genuine parts of the original chirograph. As an additional safe-guard the word cirographum was usually engrossed along the line of division (fn. 97) ; hence the word chirograph came generally to mean an indenture; but in connexion with final concords the word, as is mentioned above, seems normally to be used in the singular number to signify the two counterparts. The invariable formula is that a day is given to the parties to receive their chirograph (dies datus est eis ad recipiendum cirographum suum).

(8) The Foot of Fine.

About the year 1199, in a plea of keeping a fine, Hugh of Worcester denied that a chirograph was ever made in the king's court, and put himself upon the justices who at the making of the fine were sitting on the bench, and those justices testified that the fine was made. (fn. 98) Again, in 1202, Gilbert le Gode claimed certain land against Simon son of Elias, and said that a fine was made between them, and a chirograph in the king's court, in the time of Ranulph de Glanvill (died 1190); and he vouched the court to warranty thereof, because he could not produce the chirograph, for the reason that his son-in-law William came to his house, and broke it, and carried off the chirograph together with other chattels. (fn. 99) Now it is improbable that Hugh was the only person in those early days who questioned a chirograph, or that Gilbert was the only man who had the misfortune to lose one; and it seems likely that it was some earlier case of this sort that suggested to the king's justices the expediency of keeping copies of final concords for the purpose of record. Be that as it may, an interesting endorsement upon a final concord, dated 15 July, 1195, tells us that this was done:

Hoc est primum Cyrographum quod factum fuit In Curia domini Regis In forma trium cyrographorum secundum quod . . . . . . Dominum Cantuariensem et alios Barones domini Regis ad hoc ut per illam formam possit fieri recordum Tradit' Thesaurario ad ponendum in thesaurio. Anno Regni Regis Ricardi. vio. Die Dominica proxima ante festum beate Margarete Coram Baronibus inscriptis (fn. 100)

We see here that under the presidency of archbishop Hubert Walter, the curia regis made a new departure. The levying of a final concord was a solemn and important action, touching, as it did, the title to land. Therefore the court determined that thenceforth three copies of a fine should be engrossed instead of two, and that the third should be deposited in the treasury to serve as a permanent record. (fn. 101) It was the practice to write this third part on the same piece of parchment as the other two parts, and to sever it from them in the way described above. (fn. 102) While the indentures intended for the parties to the suit were written lengthwise of the parchment, the part intended for the treasury was engrossed across it, with the result that while the third part was indented only at the top, the other two parts were indented at the top and also at one end. (fn. 103) Since the third part was written across the bottom of the parchment it soon became known as the 'foot' of the fine. It has been suggested that at first some confusion existed between the Latin pes which means foot and the old French pes which means peace, concord; but the former meaning prevailed, and Pedes Finium, Feet of Fines, became the common name of this great series of records. (fn. 104) From 1195 they continue in an almost unbroken succession until the year 1833, when final concords were abolished by the act of parliament.

The name of the county in which the land to be conveyed was situated was added at the bottom of the foot, but was not given in the parts delivered to the suitors. In this volume, however, the name of the county has been omitted except when a concord relates to land outside Lincolnshire.

The feet of fines in the Public Record Office are arranged in series according to counties. When they relate to land lying in two or more counties they are preserved in files labelled 'Divers Counties.' Sometimes the name of the county is not given, and such feet of fines are arranged in files labelled 'Unknown,' 'Unknown and Divers,' and 'Various Counties.' Very little research, however, is generally needed to assign these documents to their respective counties.

It is from the feet of fines that the translations and abstracts in the text and appendixes have generally been made. It is difficult to say how far the series of feet of fines is complete for the period 29–57 Henry III. Omitting the 'Divers Counties' and the 'Unknown,' nine hundred and thirty-six final concords were levied—215 at Westminster, the 32nd and 48th years only being unrepresented; 649 in seven different years at Lincoln (98 in the 29th year, 122 in the 34th, 37 in the 40th, 97 in the 41st, 142 in the 47th, 14 in the 55th, 139 in the 56th); 2 at Grimsby in the 29th year, and 1 in the 34th; 4 at Spalding in the 34th; and 65 at other places outside Lincolnshire. The figures shew that people, when the case was not very urgent, naturally preferred to wait until the king's justices came into their county. For the forty-fourth and fifty-second years, when we know that there was an eyre in the county, (fn. 105) no concords levied at any place within the county have been found. The following table gives the totals of the feet of fines for each year:

YearConcords
29th104
30th8
31st18
32nd10
33rd7
34th132
35th8
36th20
37th18
38th17
39th11
40th48
41st105
42nd22
43rd20
44th12
45th15
46th10
47th152
48th0
49th1
50th2
51st1
52nd10
53rd9
54th5
55th28
56th142
57th1
936

(9) Summary of procedure to a.d. 1327.

The procedure in levying a final concord to the end of Edward II's reign may now be summarized. The plaintiff obtained an original writ to enable him to begin an action-at-law. If there was real litigation there might be many adjournments, for the law was exceedingly slow and cumbrous; but when the parties had decided to compromise the action, a licence to agree was secured. Or, if the suit was a fictitious one, brought merely with a view to obtaining a final concord made by a chirograph, the licence to agree was probably obtained on the returnday of the original writ. Generally on the same day, if the action was collusive, but sometimes a few return-days later, a concord was granted to the parties (concordati sunt uel Rex eos concordauit), the note of fine was drawn up, and a day was given to the parties to receive their chirograph. On that day the suitors came prepared to take their chirograph, and, if all was in order, the court confirmed the concord, and decreed that the chirograph should be engrossed. After another short delay, the two 'parts' of the chirograph were at last handed to the parties, and the foot was filed amongst the records of the realm.

(10) Later medieval procedure.

By the time of Edward III the litigation had probably become fictitious in all cases. and the old procedure was therefore somewhat simplified. At the beginning of the reign the note of fine was still dated on the return-day named in the original writ. On that day a licence to agree was obtained, the parties were brought into concord, and a day was given about eight return-days later de capiendo cirographo suo, but the foot was now dated on the dies datus instead of a little later as in the earlier period. By about 1350 a further change had been made. The note was dated as before on the return-day of the writ, but a day de capiendo cirographo was only given when circumstances delayed the granting of the concord, and the foot thenceforward bore the same date as the note. (fn. 107) When a foot of this period has two dates, it may be concluded that something has occurred to delay the grant of the concord. In such cases the first date is the return-day of the original writ, while the second is the day when the concord was granted and recorded.

(11) The Concord of Fine.

From the beginning of the reign of Elizabeth a series of documents called Concords of Fines are preserved at the Public Record Office in yearly bundles. They consist of a short abstract of the original writ, giving the names of the parties and a description of the property, below which is written a brief memorandum of the compromise sanctioned by the court. The concord of fine supplied the chirographer with the particulars which he needed for drawing up the note of fine. The earliest Lincolnshire concord of fine which has been found is printed below in the Formulary. (fn. 108) The concord of fine constituted the proof of the conusor's acknowledgement, and it was sometimes signed by him or by his narrator or serjeant or pleader. James Dyer who signs the specimen in the Formulary was presumably such a serjeant. It will be noticed that the sum of money to be paid by the plaintiff is not specified, the reason being that by the sixteenth century the amount mentioned in the concord had become a purely fictitious sum, which was inserted in the note of fine by the chirographer according to a general scale which was drawn up for his guidance.

Whether concords of fines were used in the thirteenth century is uncertain; but the chirographer of that time must have needed a memorandum to refresh his memory when he came to draw up the note of fine. Perhaps he was content with less formal notes than the Elizabethan concords of fines, and these notes may not have been thought worthy of preservation.

Footnotes

1 See below, section VIII.
2 Blackstone, ii, p. 350.
3 See below, section XIV.
4 Statutes, i, 214.
5 The earliest payment for a licence to agree that the writer has noticed occurs in the Pipe roll of 14 Henry II [A.D. 1167–8]: de v marcis pro licentia concordandi cum cognatis suis de terra auunculi sui (Pipe Roll Soc., xii, 58; cp. xiii, 25). It is worth mentioning, though it may be only a coincidence, that the formula pro licentia concordandi seems to appear about the time that final concords were probably instituted. From 1175 licences to agree become commoner (ibid., xxv, 85; xxvi, 14, 110, 112 (quater); xxvii, 4; etc.). It is not suggested that in every case the licence is for a final concord, but in view of the fact that much of the litigation of the time was concerned with land, it is reasonable to conclude that a considerable number of the entries mark one of the steps in the levying of a final concord. In the case of the licence granted to the monks of Bardney, in 1180–1, we have the foot of fine (see Formulary, no. 27; and below, p. 311).
6 Great Roll of the Pipe, I, Ric. I, 69, 70.
7 Rot. de Oblat. et Fin., 281 (bis), 282, 283 (quater), 285 (ter).
8 Assize Roll, no. 478, entries 99, 100, 166, 184, 230, 293, 294, 340, 464.
9 These entries occur from A.D. 1157–8. (Great Rolls of the Pipe, 1155–1158, 138. Pipe Roll Soc., i, 65 (bis); ii, 146; iii, 46; etc.).
10 Pipe Roll Soc., xii, 73; xiii, 14.
11 Great Roll of the Pipe, 1 Ric. I, 61.
12 In one case the amount is 850 marks (Pipe Roll Soc., xxvii, 4), and it is often substantial. For instances of earlier concords see above p. xi, note 3.
13 Blackstone ii, 350.
14 Rot. Cur. Regis. i, 87.
15 Rot. Cur. Regis, i and ii, passim.
16 Rolls of K.C., 48.
17 Rot. Cur. Reg., i, 156, 195, 386, 387.
18 Rot. Cur. Reg., i, 14, 25, 83; ii, 270.
19 Ibid., i, 89.
20 Ibid., i, 110.
21 Ibid., i, 70.
22 Ibid., i, 437.
23 Ibid., i, 4.
24 Ibid., i, 377.
25 Rolls of K.C., 94.
26 Rot. Cur. Reg., 316.
27 Ibid., 164.
28 Assize Roll, no. 479, entry no. 300.
29 See above, pp. xv, xvi.
30 See above, p. xvii.
31 'The damage of the disseisin is 5s.; the liability for the fine (misericordia) is half a mark.' (Rot. Cur. Reg., i, 391. Cp. ibid., pp. 177, 190, 329, 330, etc.).
32 For such a case see below, p. 300.
33 Rot. Cur. Reg., i, 400. For similar cases see ibid., ii, 194; Rolls of K.C., 73; Select Civil Pleas, no. 120; Bracton's Note Book, case no. 1147. For the final concord in the last case, see R. E. G. Kirk, Feet of Fines for Essex, p. 97. It is unlikely that all these cases led to a final concord made by a chirograph, but they prove that real litigation begun by a plea of novel disseisin might, by leave of the court, and seemingly without the obtaining of a fresh writ, lead to a final concord. Cp. an interesting case in Assize Roll 478, entry no. 464 [a.d. 1202]. On the other hand in a.d. 1312, when it was agreed, in a case of novel disseisin, to levy a fine, a writ of covenant was to be obtained (Year Book, Selden Society, xxxiii, 155–157).
34 Assize Roll, no. 478, entry 186. Cp. ibid., entries 294, 464.
35 Statutes, i, 215.
36 See Formulary, no. 24.
37 See below, pp. 307–8.
38 Notes, i, no. 103.
39 Turner, p. cxxxi.
40 Rot. Cur. Reg., passim. Mr. W. Paley Baildon (Select Civil Pleas, nos. 26, 184, 212, 217, 230, 234, 241), and Sir Paul Vinogradoff and Mr. Ludwik Ehrlich (Selden Society, vol. xxxiv, p. 191) render concordati sunt by they make a concord or they make a compromise, but this translation seems to obscure the fact that the concord is the act of the court.
41 Rolls of K. C., p. 26.
42 Rot. Cur. Reg., ii, 90.
43 Rolls of K.C., p. 31.
44 Ibid., p. 48.
45 Rot de Oblatis et Finibus, p. 254. Cp. F. C., i, 67.
46 See above, p. xix.
47 Rot. Cur. Reg., i, 430.
48 Ibid., i, 356.
49 This is equally true of the concords which were confirmed and granted by the court before the time when final concords first appear. The instance from the Pipe roll of 1130–1 is quite conclusive: 'pro concordia quam rex fecit inter eum et matrem suam de dote sua' (see above, p. xi, note 3).
50 Assize Roll, 478, entry 300. For earlier instances see Pipe Roll Soc., xxx, 61; The Great Roll of the Pipe, 1 Richard I, p. 68.
51 See below, pp. xxiii xxiv.
52 See below, section VII (8).
53 See below, pp. 336, 337.
54 For example, Pipe Roll Soc., xxxi, pp. 107f, (A.D. 1181).
55 Below, p. 337.
56 The office is at least as old as 1250: 'Cyrographum remanet in custodia Thome cyrographarii' (P.R.O., Curia Regis Roll, no. 148, mem. 34, quoted by Turner, p. cxli).
57 Rot. Cur. Reg., ii, 270. The date of the note must be 25 April–27 May. 1199.
58 Notes, i.
59 Notes of Fines, C.P. 26 (1) 4/7.
60 Through the kindness of Sir Henry Maxwell Lyte, Deputy Keeper of the Public Records, these notes have lately, at the writer's request, been arranged so far as possible in chronological order. Numbers 1–7 and 143 belong to 26–35 Edward I; numbers 8–78 and 139–142 may be dated from late Edward I to early Edward II; and numbers 79–138 are temp. Edward II.
61 Rot. Cur. Reg., i and ii, passim.
62 The references are as follows:
Note of fine,no. 1 =Foot of fine—case 134, file 65, no. 41.
"" 2, 3, 4 =" " 66, 7, 12, 13.
"" 5, 6 =" " 69, 25, 31.
"" 7 =" 135, 74, 2.
"" 79 =" " 77, 21.
"" 143 =" " 72, 19.
"'Double counties' =" 285, 25, 300.
63 The number of these failures to levy a final concord is not unduly large. In Edward II's reign there are eight notes in the fourth year (40), seven in the eighth (44), six each in the tenth (65) and eleventh (73) years, five each in the third (43) and fourteenth (0) years, and from one to three in each of nine other years. The figures in brackets give the number of existing feet of fines in the several years.
64 See below, p. xxv, xxvi.
65 Mr. G. J. Turner (p. cxxxvi and note) suggests that in the case of some final concords the foot never existed since the note was considered to be as effectual as the fine (i.e., the indentures and the foot), seeing that the latter could be made from the former at any time. The language of the rolls of the curia regis, however, shews the extreme importance which was attached to the chirograph, and it is unlikely that the parties would be content to go without it. Moreover it is not a fact that a note was as effectual as a fine, for after the making of the note the court might refuse to grant a chirograph: 'postea quia finis leuare non potest, sicut curie uidetur, etc.' (see below, p. xxvi). Mr. Turner supports his suggestion by adding that the words finis and nota are sometimes coupled as alternatives, as for instance: 'Et petunt quod finis inde seu nota finis non leuetur' (De Banco roll, no. 185, mem. 36,–4 Edw. II); but the words are patient of another meaning, for they may be a prayer that a fine should not be levied and that the case might be quashed before it even reached the stage of a note. It seems to be pressing the force of seu rather hard to treat finis and nota finis as rigid alternatives.
66 Formulary, no. 25.
67 Rot. Cur. Reg., i and ii, passim.
68 Select Civil Pleas, nos. 57, 88, 142.
69 See Formulary, no. 29.
70 Rot. Cur. Reg., i, 147.
71 Ibid., 381.
72 Pipe Roll Soc., xxiii, 138–9.
73 Hunter, i, 189.
74 Rot. Cur. Reg., ii, 26.
75 Hunter, i, 23–4.
76 Rot. Cur. Reg., ii, 83.
77 F. C., i, 13. In using these dates it must be remembered that a dies datus, sometimes in the twelfth century, and normally in the time of Henry III, included the day specified and all the subsequent days until the next return day (see below, section XIV).
78 Notes, i, no. 6, and 'Double Counties.' Since, however, the year is not given in the note of fine, it is possible that there is a year's interval between the dies datus and the date of the foot in these cases.
79 See below, p. xxvii.
80 Select Civil Pleas, no. 57.
81 Ibid., no. 88.
82 Ibid., no. 142.
83 Notes, ii (18 Edward III). For other instances of delay, see Notes, i, nos. 43, 63, 98, 126.
84 See below, pp. 12, 22, 27, 34, 38, etc.
85 Notes, i, no. 111.
86 Turner, p. cxxix.
87 De Banco Roll, no. 185, mem. 61 (Easter, 4 Edward II).
88 Ibid., no. 176, mem 60d. (Easter, 2 Edward II).
89 Notes, ii.
90 Pipe Roll Soc., xxvii, 4 (bis); xxxvi, 191 (bis). Rot. Cur. Reg., i, II, 338, 364; ii, 226. Rolls of K.C., 45.
91 Notes, ii.
92 See above, p. xxiii.
93 For the later procedure, see below p. xxx.
94 Page xxv.
95 See Formulary, no. 30.
96 See frontispiece.
97 See frontispiece, and pp. 311, 330.
98 Rot. Cur. Reg., i, 345–6.
99 Select Civil Pleas, no. 250.
100 Pipe Roll Soc., xvii, p. 21.
101 The Formulary, no 26, gives an example of an original writ ordering the treasurer to make a scrutiny of the feet of fines, and to send a transcript of a specified foot into the chancery.
102 Page xxviii.
103 See frontispiece.
104 Hist. Eng. Law, ii, 99, 99n.
105 Dugdale, Origines Juridiciales, 19, 23.
107 Mr. G. J. Turner's statement that 'the date of a fine in the Common Bench was normally the same as that on which the original writ was returnable (p. cxl and note) needs some qualification. It is true of the time after 1350, but not of the earlier period.
108 No. 28.