acknowledge and levy a fine to the said A. B. and C. D. and their heirs, or the heirs of one of them. The more correct form is to covenant to levy the fine, to the two and the heirs of A. B., or to the heirs of one of them, generally without ascertaining the person to whom the inheritance is to be granted. The intention may also call for other forms in this part of the covenant. Each species of fine, and, in particular, the fine sur concessit for years requires some variations to adapt the covenant to the nature of the fine, and these variations should keep in view the form of the fine to be levied, so as to prescribe with precision the acts which may be necessary to be done, and secure the right of having them observed. It must not, however, be forgotten, that, with a view to the operation of a fine by way of nonclaim, the fine should be levied by or to a person who has an estate of freehold. It is not necessary, as some have imagined,(g) that the conusor or conusee shall have the immediate freehold. It is sufficient that he has an estate of freehold, in reversion or remainder. This may be collected from those authorities,(h) in which it has been decided, that a fine levied by a person seised of an

(g) Rowe v. Power, 1 New Rep. 32.

(h) Co. Litt. 298. a. Carhampton v. Carhampton, Irish T. Rep. 567. Jenk. Cent. 254.

estate in remainder or reversion, may operate to bar the title of a stranger, even for the benefit of the tenants of a prior estate, connected, in privity of estate, with the person by whom the fine is levied. These observations are intended to support the authority of Anne Twist's case,(i) though the decision in that case was lately questioned. (k)

In Anne Twist's case, one seised of lands in fee, married a wife, and after made a lease of this land to A. for life, the remainder to B. in fee; and B. levied a fine with proclamations, and the husband died; and the wife did not make her claim, &c. within five years after the death of her husband; thereby she was barred of her dower for ever, notwithstanding the estate for life in A.; but if the remainder of B. had been put to a right, at the time of the fine levied, she might have avoided the fine by plea, quod partes finis nihil habuerunt, &c.

The ground of Anne Twist's case is, that the widow had merely a right or title of dower; that this right or title was to be enforced against A. during the continuance of his estate, and, after the determination of that estate, against B. The fine levied by B. was sufficient to protect his estate against

(i) Shep. T. 28. Hob. 265.

(k) 1 New Rep. 37.

all rights and titles not enforced in due time; and the prior tenant for life may take the benefit of the fine, as the more effectual means of protecting the title of B. who claims under the same title as A. and in opposition to the widow. The principles of this doctrine are in Co. Litt. 298, a. in which this will be found :-" By this some passage "have gathered, that if a disseisor make a "lease for life, reserving the reversion to "himself, and the disseisee confirmeth the "state of the disseisor, that he may enter

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upon the lessee, because the estate of him "in the reversion dependeth not upon the "state for life, as the remainder: but all is

one; for by the confirmation made to him "in the reversion, all the right of him that "confirmeth is gone, as well as when he "maketh it to him in remainder; and he "cannot, by his entry, avoid the estate of "the lessee for life; but he must avoid the "state of the lessor, which against his own "confirmation he cannot do; and it hath "been adjudged, that if a disseisor make a "lease for life, and after levy a fine of the "reversion with proclamations, and the five

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years pass, so as the disseisee is for the re"version barred, he shall not enter upon the "lessee for life."

From this passage it will be collected, that a fine may operate by way of non-claim, though it is levied by a person who has not

the immediate freehold, but merely an estate of freehold in reversion, expectant on an estate of freehold in another person. This point is fully treated of in the former volume, in the chapter on Fines.

6thly. The covenant ought also to stipulate in what court the fine shall be levied. It is necessary to the validity of a fine, that it shall be levied in a court having jurisdiction. The greater part of the lands in the kingdom, lie within the jurisdiction of the courts at Westminster; and as to many lands, the courts at Westminster and the inferior courts have a concurrent jurisdiction; and a fine, as a conveyance, may be levied in either court with equal effect; except that fines, in inferior courts, cannot, unless there is an act of parliament for the purpose, be levied with proclamations, so as to bar the issue in tail, or confirm a title by non-claim. Lands in ancient demesne are within the jurisdiction of the courts of Westminster; but to levy a fine of lands in ancient demesne in the courts of Westminster, is a deceit on the lord, and he may reverse the fine by writ of disceit. Till the fine is avoided, it remains in force, and governs the title. When avoided by the lord, it is said to be avoided as between the parties. If levied with proclamations, it will bar the issue in tail, or may gain a title by non-claim; and yet a

fine levied in the courts of ancient demesne cannot be proclaimed, without a custom for that purpose, and consequently can neither bar the issue in tail, or give any security to the title by way of nonclaim. It is said, however, that, under a custom, a fine with proclamations may bar an intail of lands in ancient demesne. (1) When there is an intail of lands held in ancient demesne, a customary recovery should be suffered in the lord's court. By this assurance, the intail and the remainders expectant thereon, may be barred. Even without a custom, a fine in the lord's court will have every operation of a fine at the common law: it may discontinúe an estate-tail, although it cannot bar it. (m) Titles depending on fines levied in the courts at Westminster, of lands in ancient demesne, generally become involved in great confusion. As the law on this subject ́is interesting, and not collected in any particular work, it may be acceptable to state some points on this subject, and to suggest some of those difficulties which arise in practice.

1st, The fine, while it remains in force, is good as between the parties, and will operate as against all persons claiming under the

(1) Dyer, 373. Lord Coke treated the custom as void. 4 Inst. 270. 1 Vol. p.

(m) Hunt v. Bourne, 1 Salk. 240.