ver are the only substantial parts proceeding from the parties.

It is true there must be an original writ. That writ must be sued out, and be returnable, before the entry of the king's silver can be made on the same.

But this writ may, as to fines levied in the court of Common Pleas, be made returnable as of a preceding, or as of a subsequent term.

If it be returnable of a preceding term, [293] the fine will be good, and may be recorded, notwithstanding the death of one of the parties during the vacation, and even before actual payment of the king's silver, so as the king's silver be paid; and, as already noticed, the king's silver may be paid after the death of the party, unless prevented by a caveat entered for that purpose at the king's silver office (y).

But if the writ of covenant be made returnable as of the next term, or of any particular return in a term, then the death of one of the parties in the mean time, will, as to him, vitiate the fine. As far as he is concerned, there is not any longer a conusor or conusee (z).

The practice is to take the acknowledg. ment in the vacation, and to have the writ

(y) Barber v. Nun, Barnes,

218.

Cases & Op. 1 vol. 434.
(=) 1 Cruise, 48.

VOL. I.

Y

of covenant returnable, sometimes as of the preceding, and sometimes as of the succeeding term. This practice is exempt from error; for the time when the fine is acknowledged is immaterial.

The writ of covenant, as of a succeeding term, may be returnable as of the first day of the term, or any other return day; and [294]the fine, when levied, will have relation, in point of legal operation, to that day, without any regard to the time at which the fine was acknowledged, or the king's silver paid.

In Lloyd v. Say & Sele (a), a fine acknowledged in March, and recorded as a fine of Michaelmas term, was allowed to be free from the objection that it did not make a good tenant to a writ of entry in a recovery suffered of Michaelmas term.

This doctrine of relation has been carried so far, that a conusee of a fine levied of a preceding term, will avoid a statute entered into in the vacation, and before the fine was acknowledged (b).

And in Peere Williams's Reports, 3 vol. 170, in a note, a fine levied on a writ of covenant returnable as of a subsequent term, is considered as a revocation of a will

(a) Lloyd v. Say and Sele, (b) Jenk. Cent. 250. 1 Brown, P. Ca. 379.

published after the fine had been acknowledged, and the deed of uses executed.

A doubt is now entertained whether this point be law. The case of Selwyn v. Selwyn (c) appears to afford a principle, on which that doubt may be supported.-Why should not the fine and deed of uses operate as parts of the same assurance, and have relation to the deed of uses, as the principal part of[ 295 ] that assurance?

On account of the cases, concerning the relation of fines, to the return day of the writ of covenant, it will be prudent, when a fine is levied to gain a title by non-claim, and a feoffment is to be made to acquire the freehold, as a foundation for the fine, that the fine should be so levied, that the relation may be subsequent to the date of the livery on the feoffment.

A purchaser, relying on a fine, as the efficient part of a conveyance, by a married woman, or by a tenant in tail, should, before he pays his purchase-money, take care that the fine is acknowledged, that the writ of covenant on which it is levied is returnable, and that the king's silver has been paid.

(e) 2 Burr. 1131.

Secondly, When a fine is complete as operating under the statute of proclamations.

By the several statutes of proclamations, two objects are to be obtained.

1, To bar heirs in tail (d).

2, To gain a title by non-claim (e).

1. To bar heirs in tail, there must be [296]proclamations. Hence fines levied in courts of ancient demesne, or in other courts, not having the power by statute law of proclaiming their fines, will not bar the issue claiming under an estate-tail (f). These proclamations may be made in the life-time, or after the death, of the conusor or conusee; and even after a claim has been made by the issue in tail (g): and as soon as the proclamations are made, the operation of the fine as a conveyance, conferring a good title against the heirs of the intail, has relation to the return of the writ of covenant.

In a former part of this chapter (h), it has been considered by whom a fine may be levied, so as to bar the issue in tail. This subject will be resumed and more fully treated on in a subsequent part (i).

It is not sufficient, that the person by whom the fine is levied is merely a parent, &c. (j).·

(d) Stat. of 4 H. VII. 32 H. viii.

(e) 4 H. VII.

(f) Hunt v. Bourne, Salk.
339.
(g) Parslow's case, 3 Co.
90, b.

(h) Supra, 218.
(i) Infra, 306.

(j) Shep. T. 20. Hob. 333. Edwards v. Rogers, W. Jones 456.

He must be an ancestor connected in privity of estate, or of title.

2. To bar strangers by non-claim, the proclamations are an essential part of the assurance. The period of non-claim begins to run from the time when the last proclamation is made. Of course it is from that time that the period of limitation prescribed by the statute of non-claim must be computed; unless perhaps when the fine is executory for when the fine is executory it has been doubted, whether the period of[ 297] non-claim will begin to run till the fine shall be executed (k). According to Lord Coke, the period of non-claim on a fine at the common law, ran on an executory fine, from the time at which the fine was levied (1).

The proclamations may be void for error in them as not made at the period prescribed by the statutes by which they are regulated; or as made, according to the entry, on a dies non juridicus, as on a Sunday, or out of the term, which is contrary to the statutes. Notwithstanding an error in the proclamation, the fine may be good by the rules of the common law, as a common law conveyance, or as an estoppel (m). The

(k) Per Lord Redesdale, 1 Sch. & Lef. 228

(1) Co. Read. 14. But see 2 Inst. 517.

(m) Dyer, 216, a. 1 Bulst. 206.