tity when they have no proof; and when proof is tendered, they regulate the fine by such proof. Therefore, before any such proof is offered to the commissioners, these circumstances, with the commissioner's rules and tables of rates for setting the prefine, (r) should be well considered. If it be worth while to prove the rent, value, purchase money, or other circumstances of the case, in order to reduce the amount of the fines, some person who can speak to the facts should attend before the commissioners to depose thereto; and if personal attendance be inconvenient, an affidavit of the facts must be made and lodged at the office, whereupon the commisOf the cog- sioners will set the fine accordingly. In addideath be- tion to what has already been observed with respect to the effect of the cognizor's death, before the return of the writ of covenant, (s) it may be proper to add here, that although, until the fine be marked with the amount of the postfine, it is not deemed effectual in law; (t) yet if the cognizor be living at the return of the writ of covenant, even if he die before the postfine is paid, especially if it be paid previous to any application against the fine, (u) it will be nizor's fore the comple tion of the fine. (r) See Append. XXXVII., XXXVIII, XXXIX. (t) 32 Geo. 2. c. 14. App. V. (u) Barber v. Nunn and Others, Barnes's notes 218 . good, and may be completed, inasmuch as the concord or agreement is supposed to be made at the return of the writ of covenant, (v) when the king's silver or postfine becomes due to the crown, (w) and is supposed to be paid. And when the postfine is paid, the receiver at the alienation office, and the clerk at the king's silver, both enter it on the back of the writ of covenant, and so it appears to have been paid before the cognizor's death. And though the Court will not, after the fine is ingrossed, alter the term, as to make it Trinity instead Michaelmas; (x) yet, if the fine be acknowledged before commissioners in the vacation, and the cognizor die previous to the term, notwithstanding the writ of covenant be not sued out, the Court will permit the cognizee to enter the fine, as of the preceding term; (y) and when once the fine is recorded, it must be taken to be a fine of that term, and no averment of its having been acknowledged after will be received. (2) fice. Having got the writ of covenant compounded Return of and paid the fines, and office fees, it must then be taken to the return office, where the clerk (v) Watts v. Birkett and Wife, Barnes's notes 220. (w) Barber v. Nunn. (x) Heath v. Wilmot, 2 W. Black, 788. (y) Odes v. Woodward, 2 Ld. Raym. 849. Warrant of attorney office. Custos brevium of fice. will indorse on the writ the sheriff's return. It contains the nominal pledges of prosecution, and summoners of the deforciants. (a) The cursitor then marks the writ with the seal of his office; and enters in his book the names of the county, of the parties, of the parishes, or other local division, in which the lands lie, and of the attorney. When the writ of covenant has been returned, the plaintiff's warrant of attorney (b) must be drawn and copied upon parchment, which with the writ must then be taken to the warrant of attorney office, and delivered to the clerk, who will file the warrant of attorney and return the writ, after marking it with the seal of his office. And no officer of the Court is to receive or file the writ of covenant, or make any entry of the fine, until it has been so signed by the clerk of the warrants. (c) The king's silver rolls are delivered into this office, from which the clerk extracts the names of the parties, the premises, and the amount of the king's fine; and afterwards hands the rolls to the clerk of the treasury, who files them among the records of the Court in the treasury chamber at Westminster Hall. After the writ of covenant has been passed by (a) See Append. XXXVI. (b) For the form, see Ap pend. XLIII. (c) Order, Hil. T. 14 Jac. 1. the clerk of the warrants, all the fine documents, namely, the writs of covenant and dedimus, the concord, and the affidavit of acknowledgment, must be left with the custos brevium, who then, within the two clear days which he is allowed to keep the fine, enters it in his book, indorses the proclamation upon the back of the concord, and marks both it and the writ of covenant with the seal of his office; so that the whole may be obtained back again immediately upon the opening of the office on the fourth day, including the day on which the fine was left, but excluding a Sunday or other holiday. (d) To this office are brought and filed by the chirographer the foot and all the other parts of the fine, except the writ of covenant which is kept in the chirographer's office. (e) ver office. When the fine has been obtained from the King's silcustos brevium office, it must be taken to the king's silver office, to have the king's silver, (which is now paid at the alienation office,) entered. The clerk enters the fine on the roll, (ƒ) (d) See the observations on the subject of expedition, infra. (e) The concord of a fine having been lost before it passed the custos brevium office, the Court suffered a new concord and aс- Where not passed within a year. and also in the office books. (g) He also enters the postfine on the back of the writ of covenant; (h) for he has to enter the fine of record, make the same entries, and indorse it in the same way, as he was accustomed to do, before the fines were paid at the alienation office. (i) When the clerk has made these entries, he examines them himself; marks the writ of covenant, dedimus, and concord, with the seal of his office; and then the fine is ready to be taken away. The clerk delivers the rolls over to the the clerk of the warrants on the first day of the succeeding term. If the fine be not brought to this office to be passed within a year after the acknowledgments are taken, an affidavit must be made that the cognizors are all living at the time of the application to pass it; (k) upon reading which the Court will generally make a rule, or a judge an order, for the fine to pass through the offices, notwithstanding the delay. And if any of the cognizors should not then be living, (g) For the particulars of pendix XXXVI. (i) 32 Geo. II. c. 14. App. V. Geo. 3. Appendix P. According to the present practice it is sufficient, if they appear to have been living within ten days of the application. See the affidavit Append. XLIX., L. LI. |