200 CHAP. II. On Fines. A FINE is an assurance by matter of record. It is for the most part founded on a supposed previous existing right. Hence the writ which requires the party to perform his covenant, is the foundation of the fine, and the commencement of the proceedings (a). The parties to a fine are, First. The plaintiff, frequently denominated the conusee. Secondly. The deforceant, generally denominated the conusor (b). Sometimes the plaintiff conusee or grantee is the person who is to have the benefit of the fine. More frequently he is named, merely for the purpose of receiving the estate, that uses may arise from his seisin. The deforceant is the person by whom[201] the fine is acknowledged, and consequently the person who is the grantor in the fine. There are several sorts of fine, viz. 1st, A fine sur conuzance de droit come ceo, &c. (a) 2 Black. Com. 349. (b) Shep. Touchst, 2. 2d, A fine sur done grant et render. The first of these fines is in more general use, and is to be preferred, except in particular cases, in which a forfeiture might be incurred by levying it.-For if a person who has merely an estate for life (c) of the legal estate, either of a corporeal or incorporeal hereditament (d), or who has an estate for life, with a remote estate of inheritance after, and subject to intermediate estates of inheritance (e), levy this fine, he will forfeit his estate for life.-So if he accept a fine of this description; for by the acceptance he admits the inheritance to be in the conusor (f). So if two tenants for life levy a fine of this sort (g), or one of them levy the fine, and the other accept it (h) both their estates will be forfeited. The concurrence of the person who has the immediate [ 202 Jestate of inheritance, will prevent the fine from operating as a forfeiture (i). On this point there is a difference between fines and recoveries; for if tenant for life having a remote estate of inheritance suffers (c) Co. Litt. 251, b. (e) Pelham's case, 1 Co. 101. Garrett v. Blizard, 1 Roll. (f) 2 Lev. 202; Co. Litt. 252, a; 1 Leo. 264. (g) 1 Leon. 262. (h) 1 Leo. 264. Smith v. Abell, 2 Lev. 202. (i) Bredon's case, 1 Co. 76. a recovery, there will not be any forfeiture of the estate for life (k): no forfeiture will be incurred by a fine levied by an equitable tenant for life (/). In Smith on dem. Richards v. Clyfford, the same person had the several estates for life and in tail, and the same circumstances occurred in Pelham's case (m); each case arose on a common recovery: it was decided in one case that there was not any forfeiture; col and in the other case it was decided that there was a forfeiture. These cases are completely at variance; and no sound lawyer, versed in the rules of property, will feel any difficulty in assenting to the doctrine in Pelham's case, as most consistent with our system of tenures. The fine come ceo, &c. is an acknowledgment on record of a previous gift or feoffment, and takes its name from this circumstance (n). Prima facie, and without any words of limitation, it passes a fee (o). It admits however of words of express limitation for life or in tail (p): and when there are words of express limitation, the fine will pass that estate only which is expressed in (k) Smith dem. Richards v. Clyfford, 1 Term Rep.738. Supra, 111. (1) Lethieullier v. Tracy, 3 Atk. 730. {m} 1 Co. 14 b. (n) 2 Black. Com. 348, 352. (p) Hunt v. Bourne, 1 Bro, Abr. Fine, pl. 12. Co. the concord; being the clause of grant. And as often as the grant is confined to that degree of interest, of which the conusor is the owner, no forfeiture will be incurred, because there is no assertion of ownership to the disinheritance of the reversioner. Such assertion of ownership is the cause of forfeiture. [203] This is that species of fine which is almost invariably levied by the owner of an estate in fee-simple, or of an estate in fee-tail, either in possession, reversion or remainder. When levied by tenant in tail in possession, it has the operation of a feoffment,. and except in particular cases, (see Com. Dig. title Discontinuance,) it creates a discontinuance of the estate-tail (q); that is, it puts an end to, or discontinues, the title under the estate-tail, and gives a new title depending on the operation of the fine, considered as effecting a tortious alienation. As often as this fine is levied by a person who is seised of an estate, it gives or transfers the seisin, either for an estate in fee, or for the time expressed in the concord of the fine; and uses may be, and generally are declared of this seisin.-If no uses be declared, the use will result (r), unless the grant be for a particular estate, or except there be (q) Co. Litt. 325, a; 2. Armstrong v. Wolsey, 2 Inst. 335; 10 Co. 96. Wils. 19. (r) Co. Litt.23, a; 271, a & b. some circumstance to keep the seisin in the conusee. When the use results to the former owner, it will result according to the ownership he had at the time of levying the fine, except that his estate-tail, if any, will, [204] in case there be a discontinuance, be a feesimple, and if there be discontinuance, a determinable fee (s). So if uses be declared only of part of the estate, or of part of the lands, the use will result for the residue of the estate, or for the residue of the lands (t): unless such resulting use would be contrary to the implication of law, as immediately annihilating a particular estate expressly limited to the conusor, or there be some circumstance, or expression of intention, to rebut the resulting use. Whenever the use results to the conuzor in fee, or is expressly limited to him, this use will be descendible (except, perhaps, in the case of a discontinuance, for that point is doubtful), exactly in the same manner as if the first purchaser of the estate of which the party was seised, at the time of levying the fine, had been the first purchaser of the estate arising from the use so limited or so resulting (u). (s) Per Holt in Machell v. (t) Co. Litt. 22, b; 23, a; 271, a. & b. Woodliff v. Drury, Cro. E. 439. Clerc's case, 6 Co. 17. 3. Earl Bedford's case, Poph. Abbot v. Burton, 2 Salk. 590. |