is come hither only through a wish to know whether the practice of the office ought to be adhered to or not. The Court defired Williams to enquire further, whether there were any precedent of a fine levied in this form. It must be a very common cafe that perfons conveying are uncertain what estate they have, and would be glad to do this: if he fhould find any other inftances of fimilar motions, he should mention them. nota, On this day Williams admitted that Weff's Symboleography contained no precedent on the subject, and that in the 3d of Edw. 3. fuch a general fine was rejected: but in 5 Edw.3. 11. pl. 26. according to one (Maynard's) edition, and 7 Edw. 3. according to the edition of 1596, was the following case ; that a man and his wife who had an estate in certain tenements for the term of their two lives, and by their deed in pais leafed and granted to John de Hunton the estate which they had in the tenements, and afterwards by fine levied they would have granted to John and releafed to him the fame tenements for the term of their lives, and the Court would not accept the fine; but afterwards the fine was engroffed and accepted in this manner, that the man and his wife remised and quit claimed to John de Hunton quicquid habuerunt in prædictis tenementis, &c. quod mirum fuit, to give judgment for the fine upon a thing which was not certain, &c. Vide contrarium fupra, Trinitat. Anno. 3. Sed talis finis admiffus fuit in itinere North' inter Simon de Dreiton et Willielmum' Curteis, &c. [Mans field C. J. It is a great way to go back for a precedent to the 7th of Edw. 3.; but it does not appear what the habendum was: it cannot be that a fine for the lives of the grantors is bad. Heath J. Come to modern precedents, something within 300 years.] 3 Newman, 163., which 1809. SEYMOUR บ. BARKER. 202 1809. SEYMOUR V. BARKER. which cites 2 Mod. 112. 1 Wood's Conveyancer, 735[Heath J. It is no authority, it is a very indifferent collection of precedents.] A fine needs not to have fuch precife form as a writ or a judgment, but a conufance of a fine, and a grant and render, fhould have the like conftruction as another conveyance between party and party; 5 Co. 38. and by grant of a man's eftate, all that he hath fhall pass; if then there be no difference between a fine and a deed, if fuch words would be good in the one, they must be good in the other. MANSFIELD C. J. A fine fur conceffit is no forfeiture, as I understand, because whatever eftate it purports to give, it will grant no more than ought to pass, and operates only on the estate a man has: and even if a tenant for life granted to A. B. and his heirs; I apprehend that he should be taken to grant only that which he can legally grant. What you wish could be obtained by two fines no doubt. If you conveyed by fine fur concefferunt to a trustee, and then granted the eftate in fee by fine fur conufance de droit, come ceo, it would do. But fince you have no precedent, we had better adhere to thofe which are established; otherwife we fhould have every fine fur conceffit in this form. HEATH J. thought the form of the propofed fine too uncertain, and afked why the parties did not grant a lease for 99 years, determinable with the life, and there would then be no forfeiture: it would be a dangerous thing to introduce any innovation in the form of fines. It would never be known what estate paffed by a fine. LAWRENCE J. The granting an estate for life, I fuppofe, will not answer the purpose. I fuppofe the object is to pass a fee, if you have a fee; if not, to pass an eftate for life. You may first grant the estate for life by fine fur conceffit, fo as to avoid a forfeiture, and then grant the reverfion by fine fur conusance de droit tantum. The Court expreffed a wifh that they could give costs to the meritorious officer who had brought this question before the Court, but it was not in their power. Lawrence J. faid, it might be confidered as a neceffary expence of performing the duty of the office, for which he received his fees. Rule refused. 1809. SEYMOUR บ. BARKER. ZEEVIN V. COWELL. THE Plaintiff's attorney on the 2d of November applied by letter to the Defendant for an immediate adjustment upon a policy of infurance, and threatened, if the fum of twelve guineas was not immediately paid him, to commence an action. Receiving no answer, he fued out and served process on the 4th. On the 6th the Defendant's attorney offered him the fum of twelve guineas, and the cofts of the action up to that time, which the plaintiff's attorney then declined to accept, and proceeded to deliver a declaration. Shepherd Serjt. on behalf of the Defendant, had on a former day obtained a rule nifi, empowering the Defendant to pay into court the fum of twelve guineas, with the cofts of the caufe to be taxed up to the 6th day of November, and to ftay all further proceedings if the Plaintiff would accept it in fatisfaction of his demand; and in that cafe requiring the Plaintiff or his attorney to pay the costs of that application, and all the cofts of the the action fubfequent to the 6th of November; but in cafe the Plaintiff would not accept that fum, then that 5 the Nov. 28: If, after action commenced, and before declara ant offers to pay the debt and cofts, and the Plaintiff refufes to receive it, the tion, the Defend Court will permit the Defendant to pay into court the debt and the cofts up to the time And the Plaintiff will be com pelled to pay the cofts of the application, and all cofts in the action fubfequent to the offer. 1809. ZEEVIN v. CatELL. the twelve guineas might be ftruck out of the decla ration. Beft Serjt. now fhewed cause against this rule, upon an affidavit that the Plaintiff was out of the realm, and that his attorney had received no inftructions fince the action commenced for fettling it. This was, he faid, an unheard-of application, and would wholly change the practice of the court. The Defendant might have availed himself of the interval of five days which elapsed between the Plaintiff's claim and the commencement of the action to make a tender, if he thought fit; but having neglected that opportunity, he must now wait till the period when he should be enabled to pay money into court under the ufual rule. It was the object of this motion to give the Defendant all the benefit of the common rule, without fubjecting him to the ufual confequence of payment of costs. And whatever the Court may have done in cafes where no previous demand had been made, fince a demand had been made here before the action brought, the Plaintiff was entitled to the costs of the declaration which had been delivered, as well as the previous cofts. Shepherd Serjt. contrà. The Court will gladly establifh a precedent to check a practice now too frequent, where an action being commenced, the Defendant offers to discharge the demand, but the Plaintiff refuses to receive the debt and cofts in that ftage of the cause, and infifts upon increasing the costs by proceeding until the Defendant is in a condition to pay money into court. If the attorney was authorised to receive the fum in the Plaintiff's abfence from the kingdom before the action commenced, there could be no good reason why he might not equally receive it now, without further communication with his client. Several fimilar applications had lately been granted in the Court of King's Bench; and he remembered a cafe in this court, where the debt and costs having been offered and rejected in an early stage of the cause, the Defendant afterwards paid the money into court under the ufual rule; and the Plaintiff having taken it out, the Court on motion varied that rule by exempting the Defendant from payment of the costs incurred fubfequent to the offer. The Court made the rule abfolute; but at first inclined to discharge fo much of it as required the Plaintiff to pay the costs of the present application: they defired, however, that it might be understood, that in fubfequent cafes, when this rule of practice fhould be better known, the costs of the motion would also be given against the Plaintiff. And in the prefent cafe they ultimately directed, that in cafe the Plaintiff should take the money out of court, he should pay the costs of the motion. Rule abfolute, 1809. ZEEVIN P. COWELL. LAIDLAW, Demandant; Cox, Tenant; BROWN and Another, Vouchees. Nov. 28. In a recovery, if the acknowledg ment of the vouchees is taken abroad. a nota BEST Serjt, moved that a recovery might pafs. The affidavit of the acknowledgment was taken in America, before a magistrate there, and was authenticated by a certificate under the notarial seal of Peter Lohra, a notary public, certifying that Jacob Baker Efq., before rial certificate whom the annexed affidavit was, on the day of the date thereof, in his, Peter Lobra's prefence taken and fubscribed, and who had attested the fame in the ufual and customary manner, was an alderman and magistrate of diftinctly state fity of Philadelphia, by lawful authority duly ap- was fworn. the pointed, made to authen ticate the affida. vit of the commiffioners muft that the affidavit |