(E 2.) Of what things. A fine may be levied of all things (s), of which a præcipe quod reddat (t) lies. 2 Inst. 513. (u) As, of all manors, messuages, lands, tenements, and hereditaments. West, Symb. 6. b. Of a rent in esse. Vide West, Symb. 6. b. (x) So, of a rent not in esse before. Vide West, Symb. 6. b. Of a reversion, or remainder. Vide West, Symb. 7. So now, since the st. 32 H. 8. 7. it may be levied of rectories, vicarages, tithes, pensions, oblations, and all ecclesiastical inheritances made temporal. (y) Of a chantry. Vide West, Symb. 7. (≈) So it may be of a seigniory. Vide West, Symb. 7. Of all services; as, homage, fealty, &c. Vide West, Symb. 6. b. 2 Inst. 513. So it may be levied of common of pasture. Vide West, Symb. 6. b. (a) Of a corody. Vide West, Symb. 6. b. Of an office: as of the custody of a forest. (b) Of a boilary. Of two pools (c) and a fishery in the water of D. (d) (E 3.) (s) A fine may be levied of an undivided a part of a manor, messuage, or other real estate, as well as of the whole; and the writ must be for an undivided moiety, third, or fourth part of a manor, messuage, &c. But if an entire thing, as a manor or messuage, be parted; as if the manor of Dale be divided into two parts; if the division be so made, that the manor of that part be not extinct, and a fine is levied of a part of it, it must pass by the name of the whole; as de manerio de D. cum pertinentiis. Mo. 230. 3 Rep. 88. Touch. 12. (t) Or faciat. 2 Inst. 515. infra. (u) 1. Co. Read. 11.— 2. There are even some things whereof a fine may be levied, although a præcipe quod reddat cannot be brought for them; as an office, for which neither a præcipe nor an assize lies, but only a quod permittat. Co. Read. 11. 2 Inst. 513. infra. (x) Touch. 11. 1 Str. 106. (y) So a fine may be levied of an adowson in gross. 8 Rep. 145. b. 1 Wils. 242. (2) The right of nomination to a perpetual curacy, cannot be the subject of recovery. 3 Taunt. 462. (a) A fine may be levied of any thing that lies in prender, provided it can be ascertained with sufficient accuracy; but of things uncertain, such as common without number, a fine cannot be levied. West, Symb. s. 25. (b) Vide supra. (c) 1. Any number of conusors may pass their separate interests in one estate, to any number of purchasers, by one fine. 5 Taunt. 265. — 2. So a fine sur concessit may be levied, to pass a reversion in fee and the mesne estates. 2 Taunt. 84.-3. And the court will allow a fine sur concessit, for conveying a life estate, and a fine sur cognizance de droit tantum, for conveying a reversionary interest in the same premises, to pass as one and the same fine. 1 Mars. 422. 6 Taunt. 21.-4. But a fine sur concessit, and a fine sur conusance de droit come ceo, cannot pass in one fine; though if the caption is for both, one may be struck out. Barnes, 216.-5. Nor can two operations be combined in one fine. 2 Taunt. 198. (d) A fine may be, and is usually levied of New River shares, by the description of so much land covered with water; and wherever a fine is necessary to be levied of such shares, as the New River runs through three counties, Hertford, Middlesex, and London, there must be three several fines, one being necessary for each county. 5 Cruise, 153. 2 P. Wms. 127. 3 Atk. 336. (e) 1. A fine cannot be levied of an annuity to a man and his heirs, because it is only a personal inheritance. 5 Cruise, 153. - 2. And though in equity, where money is covenanted (E 3.) In what order. All things, of which a fine is levied, ought to be mentioned in proper order. Vide West, Symb. 8. b. As, an honour before a castle, a castle before a manor, a manor before a messuage. Vide West, Symb. 8. b. A messuage, toft, mill, dovecote, garden, land, meadow, pasture, wood, heath, moor, juncary, marsh, alder, broom, rent, follow, according to the verses in the register, Mes. Toft. Mol. Col. Gard. Ter. Prat. Past. Bos. Brue. Mora. Junca. Marisc. Alnet. Rusc. Redd. Sectare priora. Vide West, Symb. 9. Things general ought to be put before special: as, land, the genus, before meadow, pasture, wood, &c. which are species of it. Vide West, Symb. 8. b. So things entire, before parts of a thing. Vide West, Symb. 8. b. So things excepted, after the thing out of which they are excepted. Vide West, Symb. 8. b. If there are several distinct things, each, after the first, begins with these words, ac de, necnon, ac etiam, præterea, ac alterius, ac insuper ; and so seriatim toties quoties. 2 Inst. 514. And for want of the regular order of these words in a fine, the forgery of it has been detected. 2 Inst. 514. (E 4.) By what names. In a fine, (f) an honour may be named by the name of the honour of T. Vide Grant, (E 4.) Vide West, Symb. 7. b. Vide Grant, (E1.&c.) Or may pass by the name of a manor. Vide West, Symb. 7. b. (g) So a castle, hundred, &c. may be demanded by their own names. Vide West, Symb. 7. b. Or may pass by the name of a manor. Vide West, Symb. 7. b. So a manor may be demanded by the name of the manor of B. without naming any vill in which it lies. Vide West, Symb. 7. b. (h) And by the name of a manor, a manor only in reputation passes. Cont. Noy, 7. R. Cont. Cro. El. 524. 707. Vide 1 Lev. 27. R. acc. (i) So, land reputed parcel for eighty years. R. 1 Lev. 27. Vide Grant, (E 10.) So, by the name of a messuage, a curtilage, garden, orchard, shop mill, dovehouse pass. Vide West, Symb. 7. b. covenanted or directed to be laid out in the purchase of land, such money is considered as land; still a fine cannot be levied of it, until it is actually invested in land. Id. 154. (ƒ) 1. The descriptions of things whereof fines are levied, should be the same as are used in a præcipe quod reddat, in an adversary suit. But a fine being now considered as a common assurance, or conveyance by consent, it is construed more favourably than a judgment. 5 Cruise, 154. — 2. The interest intended to pass, must be specificated. 2 Taunt. 198.- -3. But great nicety of description is not required. Cowp. 346. (g) Touch. 11. (h) 1. For it may be out of any vill, or extend into several vills. Touch. 11. — 2. Where a manor extends into several vills, as A. B. and C., it is good to express all or none; for if any one of the vills be omitted, no part of the manor situated in that vill will pass; though a fine of the manor, with the appurtenances, would have carried the whole manor. Touch. 13. West, Symb. s. 27.3. The situation cannot be described as in one of two counties in the alternative; and therefore if the premises are situated, part in each county, or if it is not known in which of the two they lie, two fines are requisite. 1 Taunt. 538. (i) 6 Rep. 63. So, So, a toft, cottage, chamber, cellar, &c. Vide West, Symb. 7. b. So it may be levied of any thing, of which a præcipe quod reddat lies. 2 Inst. 513. Or, of which a præcipe quod faciat, permittat, or teneat lies. 2 Inst. 513. Land ought to be demanded by the number of acres (1) in such a vill. Vide West, Symb. 8. If the intent appears, that all the estate in B. shall be included, all passes by so many acres as is the reputed measure; though by the st. de terris mensurandis the measure is not above three fifths of the estate. Semb. 2 Mod. Ca. 276. (m) So, of two parts of a manor, is sufficient; without saying, in three parts to be divided. 1 Leo. 115. But a fine of a tenement is not good: for it is not of a certain import. R. 1 Leo. 188. The usual manner is to name the lands in such a parish, vill, or known place. 2 Mod. 48. So it may be in a hamlet. 2 Mod. 48. Or, of a tenement in Golden-Lane, though it be not a vill, or a hamlet. 2 Mod. 47. R. Cro. El. 693. Or, in the liberty of W. R. 2 Mod. 49. So, if there are the vills of W. and C. within the liberty of W. a fine of lands in the liberty of W. passes the lands in all the vills in that liberty. R. 2 Mod. 49. So a fine of lands in a parish passes lands in all the vills in the same parish. R. 1 Vent. 170. (n) 2 Cro. 120. So, if a fine be of a house, or land, by a known name, though there be not any such vill or place; as, if the house be called Easton in B. and a fine be of lands in A. Easton and C. omitting B. it shall be good. R. Cro. Car. 269. 276. Godb. 440. Jon. 301. (o) (k) Parsonages, rectories, vicarages, or tithes impropriate do not pass by the words 'the advowson of the church of S.,' but by the words, the rectory of the church of S. with the appurtenances.' For the word 'rectory' comprehends the parish church with all its rights, glebes, tithes, and other profits whatsoever. But where a fine is levied of a right of presentation to a church only, the words are of the advowson of the church of S., and not with the appurtenances. And where a fine is levied of a vicarage endowed, the writ must be, of the advowson of the vicarage of S., and not with the appurtenances. And where there is no vicararage endowed, it must pass under the words, the advowson of the church of S.' 5 Cruise, 155. Touch. 12. (4) 1. Land ought to be demanded by the certain measure of its quantity, according to the usual mode by which it is measured; as an acre, oxgang, hide, rood, &c. Touch. 12. . — 2. And by the names which are usually given to the different kinds of land, as arable, meadow, pasture, &c. Ibid.-5. Where a fine was levied of a certain number of acres of land, it became a question whether the acres were to be considered as customary acres, or according to the statute de terris mensurandis; nor does it appear, how the case was determined. 8 Mod. 276. 5 Cruise, 157.-4. But Lord Coke mentions a case where it was adjudged, that in a common recovery of a certain number of acres of land, they should be estimated according to the customary and usual measure of the country, and not according to the statute de terris mensurandis. 6 Rep. 67. a. (m) Second part of 2 Mod. Ca. (n) 1 Mod. 78. (0) Cro. Jac. 574. If a close be named A. and a fine be of land in A. where there is no such vill. R. 2 Cro. 574. So, if a fine be of pasture in Arshcomb, where it is written Arscomb. 2 Cro. 574. If a fine be of lands in O. to the use of B. of lands in S. which is a place known in the vill of O. to the use of C.; it shall be good to C. for the lands in S. R. 1 And. 245. But if a fine be levied of lands in A. this passes only land in the vill of A. and not land in B. or any other vill within the parish of A. R. 2 Cro. 120. Vide Parish, (C 1. 2.) Or, in B. it does not pass land in a hamlet of the same parish, which has separate constables: for it is a distinct vill. R. 1 Vent. 143. Adm. 1 Vent. 170. (p) (E 5.) The caption of the fine : - In court. By the common law, the parties who levied a fine ought to do it in court in person, by which the court might judge of their sufficiency. 2 Inst. 512. Vide Mad. Form. Int. 14. And therefore, after the writ of covenant compounded, indorsed, and entered at the Alienation-office, and affixed to the præcipe and concord, it shall be delivered to the serjeant. Comp. Att. 95. By the st. 18 Ed. 1. de modo levandi fines, when the writ is read in presence of the parties, the serjeant shall say, conge d'accorder, the justice says, que donera; the serjeant names the parties: and when it is agreed of the sum, the justice says criez la peace, and then the serjeant recites the concord. Vide 2 Inst. 512. If there be a feme covert (q) she shall be examined by the puisne judge, and her examination recorded. Vide 2 Inst. 515. And always, where a feme covert levies a fine, she ought to be examined; and if she does not assent, the fine ought not to be received. 2 Inst. 515. So, if a fine be levied of land to husband and wife, who grant and render it; there the wife ought to be examined. 2 Inst. 515. But where a fine is levied of land to husband and wife, she need not be examined. 2 Inst. 515. And if her examination be recorded, it cannot afterwards be averred, that she was not examined. 2 Inst. 515. So a fine taken in court need not be signed by the hand of the judge, as is done where it is taken out of court. Semb. Dy. 320. b. (E 6.) Out of court, before the chief justice. The chief justice of C. B. virtute officii may take the caption of a fine out of court, without a dedimus potestatem. 2 Inst. 512. Dy. 224. b. Cro. El. 469. (r) (p) 1. A fine does not ascertain, but only comprises, the lands whereof it is levied; so that it is in all cases extremely proper to have a declaration of uses, in order that the precise lands comprehended in the fine, and intended to pass by it, may be ascer tained. 5 Cruise, 159.-2. There are frequent instances of tenants in fee simple, who, in levying fines, insert more parcels of land than do actually belong to them; in which case Lord Hardwicke says, a court of equity will restrain the operation of the fine to such lands as do really belong to the parties. Ibid. 2 Atk. 241. 1 Ves. J. 138. (9) Supra, (B). (7) 1. Co. Read. 9. 2. But if he be a party to the writ, he cannot take the acknowledgment of the fine; quia judex in propria causa.—3. A rule which extends to all other judges and commissioners. VOL. IV. X The The præcipe and concord in paper shall be read to the parties in the presence of the chief justice, and being acknowledged and subscribed by them, the chief justice sets his name to it. Compl. Att. 96. Afterwards it shall be ingrossed in parchment, and signed by the Ch. J. and upon that the cursitor makes the writ of covenant, which shall be compounded at the Alienation-office, and the king's silver paid, and the fine conveyed to the other offices. Compl. At. 96. So a judge of assise may take a fine, without a dedimus potestatem, if he has a special patent to take them in his circuit. Dy. 224. b. (s) But the chief justice of B. R. or any other judge, cannot take the caption of a fine, without a dedimus potestatem. Dy. 224. b. (E 7.) By dedimus potestatem. By the st. Carl. (t) 15 Ed. 2. If any by age, impotence, or casualty, be withholden that he cannot come to our court, (u) two or one of the justices, by assent of the rest, shall go to the party diseased, and receive his conusance on the plea in which the fine ought to be levied, &c. (x) If there go but one, he shall take with him an abbot, prior, knight, or man of good fame or credit, and certify the court thereof by the record; that all things incident to the fine being examined by him, it may be duly levied. (y) And upon this a dedimus potestatem (z) is granted to any judge, serjeant, or knight only, to take the fine: for it is now usual for one (s) 1. Jenk. 227. — 2. A writ of dedimus potestatem, however, ought to be sued out, bearing date before the acknowledgment of the fine. 5 Cruise, 122. 3. Though, if the writ of dedimus potestatem be tested after the date of the acknowledgment, still the fine will be supported.-4. A writ of error was brought to reverse a fine, and the error assigned was, that it appeared upon record that the acknowledgment of the fine was taken by Chief Baron Manwood, on the 27th of March, and the writ of covenant and dedimus potestatem were tested on the 9th of April, so that the acknowledgment was taken without any authority; and by the stat. 23 Eliz. the day of the acknowledgment ought always to be certified; but the court over-ruled this objection, saying, it was good enough, and that otherwise they should reverse many fines. Cro. Eliz. 275. (t) But which, in fact, is a writ addressed by Edward the Second to the judges, for their government in taking the acknowledgment of fines. (u) Although the writ of dedimus potestatem still appears to be granted upon a suggestion of infirmity in the parties, yet such suggestion is seldom true; the writ being usually obtained to save the expence or inconvenience of a journey to Westminster; or for the purpose of levying a fine in vacation time. 5 Cruise, 123. (a) Where the acknowledgment of a fine is taken before the Chief Justice, no dedimus is necessary; where before a puisne judge or a serjeant, a dedimus is requisite, though it may be issued after, so as to warrant the acknowledgment; in the case of all other commissioners, the dedimus must issue beforehand. 3 Taunt. 49. (y) And by 43 Eliz. c. 15. sect. 5. it is enacted, that upon all original writs purchased out of the court of exchequer of the county of Chester, for the levying of any fine or fines within the city of Chester, the mayor of the said city, for the time being, shall have power and authority to award and send forth such like writ or writs, process or precepts of dedimus potestatem, to any two or more sufficient persons, authorizing them to receive and take the acknowledgment of such person or persons, as shall be willing to levy such fine or fines, and, by reason of sickness or other reasonable impediment, cannot come in person before the said mayor to make such acknowledgment. (2) Which is directed to a certain number of commissioners, reciting, that a writ of covenant is depending before the justices of the court of common pleas, between certain persons therein named, who are incapable, from infirmity, of appearing personally before the court, and authorizing the commissioners to take the acknowledgment of the said parties concerning the matters contained in the writ; and directing them to certify such acknowledgment, under their hands and seals, to the court of common pleas. 6 Cruise, 120. only |