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 other lands? May not two persons be equally interested as the grantees 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 recognises and sanctions a grant to two, as joint tenants in fee. This practice then is one of those anomalies which destroys the beauty of the juridical system, by introducing a case totally void of any support in principle.

Accordingly, a fine though levied to twe and their heirs will be allowed to be of force. (t)

(4) 2 Mod. 49.

1

The rule is fieri non debuit sed factum valet (u).

So it is said a fine ought not to be levied on condition, and yet if the fine passes, it will be effectual; 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, will enable the conusee to maintain an action of covenant against the wife (v).

When the fine is to two and the heirs of

(u) 2 Co. 74. 5 Co. 38, b.
(v) Wotton v. Hale, 2 Sand. 77

U

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. 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 of 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 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 the chirographer makes out the indentures, the fine is said to be engrossed, and the chirograph is conclusive evidence of the fine. (w)

But the fine 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.

As to the indentures, the chirographer is the officer intrusted by law to transcribe them from the records, and full credit is, for that reason, to be given to their authenticity.

But no such authority resides with him in regard to the proclamations.

When a fine is complete as a conveyance.

'Till the writ is returnable the court has no jurisdiction; for this reason, till the writ is returnable, a fine is not complete; so that the death of the parties, before the writ of entry is returnable, will avoid the fine (x).

(w) Gilb. Evid. 244. B. N. P. 229.

(x) Wright v. Mayor of Wickham, Cro. Eliz. 468.
Clements v. Langborne, 2 Lord Raym. 872.

It is sometimes said, that the fine is not complete till the king's silver is paid.. On this point it is to be observed, that the king's silver is not payable till the writ of covenant is returnable: and it cannot be paid at an earlier period; so that if 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 is 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 no means of impeaching it ().

The acknowledgment of the concord is the principal act of the parties (2). This and the payment of the king's silver are the only substantial parts proceeding from the parties.

But there must be an original writ. That writ must be sued out, and be returnable, before the entry of the king's silver can be made on the same.

But this writ may, as to fines levied in the court of Common Pleas, be made returnable as of a preceding, or a subsequent term.

(3) Farmer's case, 2 Inst. 511. Hob. 330.
Harnies . Micklethwaite, Barues, 214.

(z) 2 Inst. 511.