2. The court of King's Bench; at least when a suit is depending in that court on a writ of error from the court of Common Pleas; (k) and a fine levied in the court of King's Bench on a writ returnable in that court is voidable only, and not void. (?)

3. Courts of Great Sessions in Wales. See $4 and 35 Hen. VIII. c. 26. s. 40.

4. Counties palatine, viz.

Lancaster; see stat. 37 Hen. VIII. c. 19. Chester; see stat. 2 and 3 Ed. VI. c. 28. 43 Eliz. c. 15.

Durham; stat. 5 Eliz. c. 27.
Court of ancient demesne.

Inferior courts by usage, confirmed by act of parliament, as in some cities, boroughs, &c. (m)

Fourthly, On what writs.

A fine may be levied on every writ by which lands may be demanded, charged, or bound; or which in any sort concern lands, as a writ of

Mesne, (n)

Warrantia chartæ, (o)

De consuetudinibus et servitiis, (p)

(k) 1 Cruise, Densh. Read. 3.

(1) Co. Read. 9. 9 Vin. Abr. Fine, 217.

(m) Co. Read. 9.

(n) Ib. 10.

(0) 2 R. Abr. 14.

(p) Ibid.

Quod permittat, (y)
Quid juris clamat, (r)
Right of advowson, (s)
Quare impedit, (t)
Assize, (u)

Præcipe quod reddat, (v)

Right, close or patent, (w)
Dower, (x)

Covenant, (y)

Annuity. (z)

In modern practice the writ of covenant is in general, and almost invariably, made the ground work of the fine.

Fifthly. Of what parcels.

A fine may be levied of all things of which a præcipe quod reddat will lie; viz. 1, Land in all its varieties. 2, Of other things, as Advowson.

Right of presentation.

Rent-charge.

Chief rent.

Office.

(q) Co. Read. 10.

(r) 2 R. Abr. 15.

(s) Ibid. 14.

(t) Ibid.

(u) Ibid.

(v) Ibid.

(w) Hunt v. Bourn, 1 Salk. 340. 2 R. Abr. 14.

(*) 2 R. Abr. 14.

(y) Co. Read. 10. 2 R. Abr. 14.

(2) 2 R. Abr. 14

Things in prendre, if to be ascertained with sufficient certainty.

And of lands, whether they are held in possession, or in remainder or reversion.

Tithes.

New River shares.

Undivided part.

But a fine cannot, it is said, be levied of Common in gross sans nombre. (a) Annuity. (b)

But a judgment on a writ of annuity will, it is apprehended, bind the interest of the parties, and even of a married woman, in an annuity. And there are many instances of fines levied of annuities; and some of them on a writ of covenant. (c)

Office of dignity.

Sixthly. By what names.

In fines, as in aaverse actions, the parcels ought to be demanded by their legal names. The description, then, should be of a given number of messuages, &c. acres, &c. and not by the name of a farm, tenement, &c. as in deeds.

But as

to the quantities, &c. (d) great

(a) 1 Cruise, 121.

(b) Shep. P. Couns. 1.

(c) 2 R. Abr. 15.

(d) Massey v. Rice et al. Cowp. 346,

latitude is now given by the courts, since fines are considered as common assurances. The deed leading or declaring the uses of the fine is considered as part of the assurance, and the intention of the parties respecting the parcels, will be collected from the deed. (e)

It seems almost to be a general rule that in fines and common recoveries, the lands, &c. will pass by any denomination the parties shall give them, so as the intention to comprise them is clear.

be

And the certainty of the lands may made out by averment, and of course proved by parol evidence, or from the deed of uses. As where a person who has two manors of the same name, levies a fine of a manor of that name, without any circumstance of distinction. (ƒ) But unless there are circumstances, as evidence, to shew in certainty which manor was to pass, the fine will be void for uncertainty.

The deed (g) by which the uses of a fine are declared is the measure by which juries. usually go, in ascertaining the description of the estates whereof a fine is levied; and

(e) Travely v. Eadon, Cro. Car. 269.

Eyton v. Eyton, 1 Bro. P. C. 151. (f) Gilb. Evid. 38. 2 R. A. 676. e. 23. (g) 1 Bro. P. C. 136.

courts of justice constantly allow the fine to be amended, as to the parcels, by the deed of uses; and in particular they will not suffer a fine to pass more lands than were intended to be included; although the parties may have a greater quantity of lands than are enumerated in the parcels of the fine.

It is said also that a fine will not pass a greater number of acres than are contained in the writ and concord, although the deed of uses mentions more. (h)

There are cases, however, to the contrary.

In Vin. Abr. Evidence, (i) there is this passage:

“On a trial in the north, whether lands were comprised in a recovery or not, being, as described, but 28 acres: yet the fact was Yet bene: because they were 120 acres. the intent of the party is what is to govern in these cases, and these 28 acres shall not go according to the statute, but the estimation of the parties. Per King, Ch. Tr. Vac. 1727."

And in Eyton v. Eyton, (k) it was argued

(h) Jenk. Cent. 254.

(i) P. 240.

(k) 1 Bro. P. Ca. 151.