kind (j) the judges will not allow lands to be limited to two and their heirs (k). They require the fine to be to two and the heirs of one of them (/). Certainty is the alleged ground of insisting on this practice, since it is the object of [ 288 ] fines to settle the possession, not only for the present, but for the future, in the most certain and secure manner. But what reason is there for allowing a fine of lands of gavelkind tenure to be levied to two and their heirs, which does not equally apply to ether lands? May not two persons be equally interested as the grantees or coparceners (m) of other lands, as well as those of gavelkind tenure? Though other lands descend to one son, while gavelkind lands descend to all the sons as one heir, yet other lands may, in some cases, descend to several females, and even to several males being the descendants of females, as coheirs. Besides, the grant to two is totally unconnected with any reason which concerns a grant by two; and there is an apparent absurdity in supposing that the right cannot be acknowledged as in two, when the law recognizes and sanctions a grant to two, as joint tenants in fee. This practice then (j) Rob. Gavelk. 132. (7) Ibid. and 2 Co. 74 b. (m) 2 Roll. Abr. Finę 18 (P.) pl. 1. is one of those anomalies which destroys the beauty of the juridical system, by introducing a case totally void of foundation in principle. Accordingly, a fine though levied to two and their heirs will be allowed to be of force (n). The rule is fieri non debuit sed[289] factum valet (0). So it is said a single fine ought not to be levied on condition (p); and yet if the fine pass, it will be effectual (q) and in a render it is allowed, that a condition shall be inserted. And it is also said, that a fine ought not to be with an exception, a clause of saving, of re-entry, &c. But in practice an exception is allowed, and it would be absurd if it were not: and in fines sur grant et render, a clause of re-entry may be introduced in the rendering part of the fine. A fine may be good with or without a warranty. In general a warranty is added; and it should be adapted to the circumstances of the case, and the intention of the parties. As between a purchaser and seller, or even a settler for the benefit of other persons, the warranty ought not to extend beyond the agreement of the parties. A warranty in a fine by husband and wife, (n) 2 Mod. 49. (0) 5 Co. 38, b. (p) 5 Co. 38, b. (q) Ibid. will enable the conusee to maintain an action of covenant against the wife (r).. When the fine is to two and the heirs of [290] one, the warranty ought to be conformable to the grant. It is said that a warranty from two and their heirs ought not to be allowed (s). To this there is an exception, when the lands are of gavelkind tenure. In practice, the general rule, that there cannot be a warranty from two and their heirs, is avoided by taking distinct warranties from each and his heirs ; or one warranty from both, for themselves and the heirs of one of them, and another from both, for themselves and the heirs of the other of them. Thus that is accomplished by indirect means, which is not allowed in direct terms. Fourthly. The note of the fine is only an abstract of the writ of covenant, and of the concord. It names the parties, the parcels, and the agreement. Fifthly. The foot of the fine includes the whole matter. This is in truth the chirograph, and the document of which the indentures are a transcript, or at least from which they are made. It begins with these words, This is the (r) Wotton v. Hale, 2 Saund. 177. (s) 2 Roll. Abr. Fine 19. pl. 9. final agreement, and it rehearses the names of the parties, the parcels, and the day, year, and court in which, and before whom, the fine is levied. When a chirographer makes out the [291] indentures, the fine is said to be engrossed, and the chirograph is conclusive evidence of the fine (t). The fine, however, is perfect before it is engrossed,—and evidence may be given of it without producing the indentures. Of the proclamations, when there are any, evidence must be given by producing and proving an examined copy of them. The usual indorsement on the indentures will not be received as evidence, in a court of justice, of the proclamations (u). The chirographer is the officer intrusted by law to transcribe the indentures from the records; and full credit is, for that reason, to be given to the authenticity of these indentures. No such authority resides with him in regard to the proclamations. 8. When a-Fine is complete. First, As a conveyance. Till the writ is returnable the court has (t) Gilb. Evid. 24. Buller's N. P. 229. (u) Gilb. Evid. 25. Buller's N. P. 229. no jurisdiction; for this reason, till the writ is returnable, a fine is not complete. The death of the parties, either of all the plaintiffs, or all the deforceants, before the writ of entry is returnable, will avoid the fine (v). But the death of one of several conusors, or of one of several conusees, before the writ is returnable, will avoid the [ 292 ]fine only as against the deceased party. It is sometimes said that the fine is not complete till payment of the king's silver. On this point it is to be observed, that the king's silver is not payable till the writ of covenant is returnable. It cannot be considered as paid at an earlier period. And when the party dies, after the writ of covenant is returnable, but before the king's silver is paid, a caveat against the fine may be entered, and the fine will be stopped; but if the king's silver be paid, even after the death of the party, on a writ of covenant made returnable in his life-time, the fine will be complete, and there are not any means of impeaching it (w). The acknowledgment of the concord is the principal act of the parties (x). This concord and the payment of the king's sil (v) Wright v. Mayor of (w) 2 Inst. 511. Farmer's case, Hob. 330. Harnies v. Micklethwaite, Barnes, 214. (x) 2 Inst. 511. |