binding on the issue, claiming under an intail of the lands (y).

The certainty of the lands may be made out by averment, and of course proved by parol evidence, or from the deed of uses. As where a person who has two manors of the same name, levies a fine of a manor of that name, without any circumstance of distinction (z). But unless there were circumstances, as evidence, to show in certainty which manor was to pass, the fine would be void for uncertainty.

The deed (a) by which the uses of a fine are declared, is the measure by which juries are governed in ascertaining the description of property of which a fine is levied. And [ 272 ]courts of justice constantly allow the fine to be amended, as to the parcels, from the deed of uses. In particular, they will not suffer a fine to pass more lands than were intended to be included; although the parties may have a greater quantity of lands than are enumerated in the parcels of the fine, and such lands are within the descriptive terms of the fine.

It is also said that a fine will not pass a greater number of acres than are contained

(y) Heliot v. Saunders, Cro. Jac. 700.

(z) Gilb. Evid. 38. 2 R. Ab. 676. pl. 11.

(a) 1 Bro. P. C. 151.

in the writ and concord, although the deed of uses mentions more (b).

There are cases, however, to the contrary.

In 6 Co. 67, it is stated to have been adjudged in Sir John Bruyn's case, in the beginning of the reign of Elizabeth, that in a common recovery, (which is had by agreement and consent of the parties,) of acres of land, they shall be accounted according to the customary and usual measure of the country, and not according to the statute de terris mensurandis.

In 12 Vin. Abr. Evidence (c), there is this passage.

"On a trial in the north, whether lands were comprised in a common recovery or not being, as described, but 28 acres; yet the fact was they were 120 acres. Yet bene: because the intent of the party, is, what is to govern in these cases, and these 28 acres shall not go according to statute, but the estimation of the parties. Per King, Ch. Tr. Vac. 1727."

And in Eyton v. Eyton (d), it was argued on the part of the defendant, (and the argu-[ 273] ment seems to have prevailed,) that the deed of uses, and not the fine and recovery,

(b) Jenk. Cent. 254.

(c) P. 240.

(d) 1 Bro. P. Ca. 151.

was the measure by which the jury were governed.

At all events, the rule is to amend the recovery by the deed of uses, when the lands are described by name, in' the deed of uses; or it was evidently the intention of the parties to comprehend them. An affidavit is now required, of the intention to include the parcels, which are omitted out of the fine, &c. (e) unless there be a manifest intention disclosed by the deed to include the parcels in question. Under such circumstances of intention, it should seem the affidavit will be dispensed with, when by reason of the death of the parties it cannot be made (ƒ). At least an affidavit of the belief of an intention to comprise the parcels, will be sufficient.

In all cases of amendment, it is an essential circumstance that the lands shall be included either under a special denomination, or by general words in the deed of uses (g).

A recovery comprised 42 messuages, and two acres of land: forty-four messuages were built on the scite: and application was made to amend the recovery.

(e) Wheeler v. Heseltine, 2 Bos, and Pull. 560.

Dowse v. Reeve, ib. 578. (f) Milbanke v. Jolliffe, 2 Bos. and Pull, 580: in Notis.

Loggin v. Pullen, Barnes, 21.

(g) Pearson v. Broughman, 1 H. Black. 73.

The court, after hearing the affidavit read, and precedents of amendment, said, the whole land being conveyed, containing the forty-four messuages, gives a good title to the grantee, for the whole, and therefore the amendment is unnecessary.

But if the amendment were necessary, it could not be made in this case, there being nothing to amend by, it cannot be made by the deed, stated in the affidavit, to make a tenant to the precipe; because that would not authorize the amendment: and there is no deed stated, to lead the uses of the recovery, from whence the amendment could be made. But clearly the title of the grantee is good, without any amendment.

This decision supports the former authorities, (h) that buildings on land will pass by the name of the land and it goes still further; as the decision is on a general principle, and not on the restricted point, that the right of the demandant was to the land, before the buildings were erected.

7. The Parts of a Fine.

The parts of a fine are, 1st. The original writ.

2d. Licentia Concordandi.

[274]

To which are added,

(h) Supra, 271.

3d. The concord.

4th. The note of the fine.

5th. The foot of the fine.

The three first are the material and essential parts.

First. The original writ is essential to the validity of a fine. Unless there be an original writ, there is not any basis or ground work, for the fine (i). A fine without an original writ will be voidable (j), and not void (k), for error. And, no parcels can be introduced into the fine, besides those in the writ, Unless there be a writ there cannot be either a plaintiff or defendant, in other words, a conusor or conusee. These circumstances must concur in the writ. There must be.

1st. A plaintiff or demandant.

2d. A tenant or defórceant.

3d. The parcels, with the proper return, &c. teste, &c. so as to appoint a time for the appearance of the parties in court, and to give authenticity to the writ. The writ must have remained in force till its re[275]turn; and it must be returnable on a lawday, and not on a dies non juridicus, as Sunday, &c.

A retraxit (1) puts an end to the legal

(i) West Symb. s. 23. Co. Read. 1, 10.

(j) 18 Ed. I stat. 4. 2 Inst. 513.

(k) Count Lestrange's case,

2 R. Ab. 14. pl. 6. Plow. Com. 394. b.

(1) Bro. Abr. Judgm. pl. 114. Fine, pl. 82.