FINES. A fine executed is that which, from the force of its operation, gives an immediate legal possession to the conusee, so that he needs no writ of habere facias seisinam or other means to execute it; of this sort is the fine sur conusance de droit come ceo que il ad de son done, because this fine, as the form of it imports, always supposes a precedent feoffment or gift of the thing of which the fine is levied, and which the intent of the fine is only to corroborate, confirm or strengthen; of the same kind also are fines sur release, sur confirmation, or sur surrender, and for the same reason'. An executory fine is that which transfers no legal possession, nor vests any estate in the conusee till executed by entry or action; of this sort is the fine sur conusance de droit tantum, where the conusee has no freehold in him at the time, and so of a fine sur concessit, or sur done grant et render (at least as far as concerns the render) all which fines, unless made to those who are in possession of the land at the time, require an actual entry, or writ of seisin, as the case may be, by the conusee, in order to obtain possession. If, however, the conusee be in actual possession of the thing of which such executory fine is levied, then no writ of execution is requisite to put him in possession, as the fine will in such case enure by way of extinguishment of the right of the conusor without affecting the estate or right of the conusee". III. OF THE SEVERAL PARTS OF A FINE, AND THEIR THE parts of which a fine, as it is required to be levied since the statute de modo levandi fines", is composed, are, 1. The original writ: 2. The licentia concordandi: 3. The concord itself: 4. The note or abstract; and 5. The foot or conclusion. 1 Shep. Prac. Couns. c. 2, s. 3; 3 Co. 513. m Shep. Prac. Couns. c. 2, s. 3. 18 Ed. 1, stat. 4. A fine, we have seen, was in its original, founded on an actual suit commenced at law for the recovery of lands or other hereditaments; it is thus managed; the party to whom the land is to be conveyed or assured, commences an action or suit at law against the other; generally an action of covenant, by suing out a writ, or præcipe, called a writ of covenant, the foundation of which is a supposed agreement or covenant, that the one shall convey the lands to the other, on the breach of which agreement the action is brought. On this writ there is due to the king, by ancient prerogative, a primer fine, or a noble for every five marks of land sued for; that is, one-tenth of the annual value°. The first part of a fine, therefore, is the original writ, without which the fine is erroneous, and may be reversed for error, this being absolutely necessary to bring the parties within the jurisdiction of the court P; and though the original is generally a writ of covenant, yet fines may be taken on all writs in which lands are demanded, or are to be charged, or which in any manner relate to them, for the law having provided different remedies for the several grievances of the subject, it was but reasonable in the judges to allow of these compositions, whatever method the injured person took to recover his right; and therefore a fine may be levied on a writ of right close, a writ of mesne, of warrantia charta, or de consuetudinibus et survitiis, a writ of right of advowson, or in any other real action; though not in an original in a personal action; and the common writ of covenant, on which a fine is levied, is not a personal but a real action; for though it is to have damages for breach of covenant, as in personal actions, yet it is to have an execution and performance of the covenants'. The practice, however, now is for the 0 2 Inst. 11. Co. Reading, 3, 10; Plow. 392; 2 Rol. Abr. 14; 2 Inst. 510; 5 Co. 38. Finch. Law, 278; Booth, 247; Mad. 15. г Salk. 340, resolved per FINES. FINES. conusor to make the conusance, and acknowledge the fine, before any original sued out; and this has so far obtained, that the Judges have permitted such fines to stand, though the conusor died before the writ of covenant was taken out; but in these cases the originals were sued out, and made returnable, as of a term preceding the conusance, for they are still necessary to make the fine a perfect and complete conveyance, though for the greater expedition they have allowed of this variation from the ancient course; and so notwithstanding the action is now become a fictitious proceeding only, yet the proper forms and other requisites in a real action for the recovery of lands must be adhered to (1). If, therefore, in a warrantia charte against B. to warrant one acre, he levies a fine of that acre and another, the fine operates to convey only his right in that acre which he was called to defend, for the other was not mentioned in the (1) The Judges will in some cases, however, allow of amendments to be made when any error has happened by mistake or accident, as where the writ of covenant was dated on a day subsequent to the day of return: See Gage's case, 5 Rep. 45, b; and Sir Wm. Blackstone's observations in Lindsay v. Gray, 2 Blac. Rep. 1013; but see also Pembroke v. Jefferys, i Salk. 52; Ca. T. Talb. 59, where it was held by the Judges that the writ of covenant being an original writ, was not amendable either by the common law or by statute, and that Gage's case was misreported and not law. So it will permit amendments to be made in the entry of the king's silver, or of the proclamations, or in the description of the lands; see post, and Cru. 145. But where a fine was, by mistake, recorded of a wrong term, the court would not suffer it to be altered and recorded of another term; for, per Cur. this would be not to amend a fine, but to make a new one; Heath v. Wilmot, 2 Black. Rep. 778. Nor will the court allow of a change to be made in the christian name of any of the parties; Dixon v. Lawson, 2 Black. Rep. 816. original'. So, if a writ of covenant be brought de terris (or arable land,) and the defendant make conusance of pasture, meadow or wood, this fine is not good, nor è contra; for these being of a different nature from ploughed land, (which terra properly implies,) are not contained in the writ, and consequently there does not appear to the court any contention about them". And So, if the conusance be of the manor of Dale, the conusee cannot make a render of the manor of Sale; or if the conusance be of the third part, the render cannot be of the whole; because the court can determine the right only of that about which the parties contend, and which the conusee demanded in his original; but if the conusor acknowledges all his right, &c. to the demandant, for which conusance he grants and renders the land to the conusor for life; or if he grant a common in the land, or so many loads of wood off the land, this is a good fine; because the determination is wholly concerning the thing in dispute, one party taking the property, and the other a profit arising out of it, all which is comprehended in the original writ*. So if the grant and render be of a rent de novo, this will be good; because the rent issuing out of the land is implied in a demand of the land; and, consequently, the concord and agreement of the parties is received and allowed for that only which was in litigation". And so, if the writ of covenant be of land, he may grant the reversionz. And as nothing can pass by the fine but what is expressed or implied in the covenant, so no one can take an immediate estate by it who is not mentioned in the writ of covenant, because none can have any benefit from the judgment of the court who is not judicially before it, and FINES. FINES. Licentia concordandi, sues for it. A grant and render may, however, be made to a stranger in remainder, because the render being only a consideration for the conusance, a remainder limited to a stranger may be as much a consideration to the conusor, as if the whole estate had been given to himself; but there must be an immediate estate given back to the conusor, because the render ex vi termini implies that it must return to him. And so if a pracipe be brought against a tenant for life, and upon his default the reversioner is received, he may levy a fine of his reversion to the demandant, although he is not named in the original writ. So likewise, if a fine be levied by a vouchee to the demandant, or by a demandant to the vouchee, it will be good, although a fine levied by a vouchee to a stranger would be void. And the reason is, that a reversioner and a vouchee are allowed by the court to come in the place of the tenant against whom the præcipe was originally brought, and having thus become parties to the suit, they are bound by the judgment as much as if they had been named in the writ". Again, if the lands be situated in different counties, se veral writs of covenants must be brought against the conusor as in other real actions; but they may be all comprised in the same fine. The suit being thus commenced, then follows the licentia concordandi, or leave to compromise the suit. For, as soon as the action is brought, the defendant, knowing himself to be in the wrong, is supposed to make overtures of peace and accommodation to the plaintiff; who, accepting them, but having, upon suing out the writ, given pledges to prosecute his suit, which he endangers if he now deserts it |