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PURCHASES. doth hereby covenant and declare with and to the
said (purchaser) his heirs and assigns, and she the Wife.
said (wife) doth hereby consent and agree (1), (W) that they the said (vendor) and
his wife (2) Conveyance to shall and will, at the proper expense and costs of levy fine. the said (vendor) his executors or administrators(3)
term now last past (4), [and in default thereof, then in or as of any subsequent term, when thereunto required by the said (purchaser) bis heirs or assigns] well and duly acknowledge and levy, or cause to be so acknowledged
presses a surprise that so palpable an inaccuracy should so
long have escaped correction.” 2 Prest. Conv. p. 83. Wife's assent, (i) When the wife is interested, it is usual to express her con
sent to the husband's covenant that she shall levy a fine, in order, as it is said, to create an equity against the wife, but
quære this; and see Emery v. Ware, 5 Ves. 846. 8 ib. 505. Wise's estate. (2) If it be the wife's estate, say
or her heirs." Expense of fine. (3) Where the purpose of the fine is to bar the dower of the
wife of the vendor, or discharge the estate from any incumbrance, it must be levied at the expense of the vendor; but where it is levied simply at the instigation of the purchaser, as a cautionary security against suppository defects, of a nature which it is not obligatory on the part of the purchaser to remove, it must be at the purchaser's own expense. As doubts may however in some cases arise as to whether the title actually requires a fine or not, it is always right to express at whose
expense the parties have agreed that it shall be levied. Fine acknow
(4) As the death of the parties before the return of the writ ledged.
of covenant will vacate the proceedings on the fine, and as the writ
may be sued out in the vacation returnable as of the preceding term, this is usually done, and the fine acknowledged, before the suing out of the writ, in which case the fine will be good, notwithstanding the death of the person levying it before it is completed. And see post, No. XXXI. (A), p. 46.
and levied unto the said (purchaser) and his heirs, PURCHASES, before one or more justice or justices (1) of his majesty's court of Common Pleas at Westmin- Wife. ster (2), one or more (3) fine or fines, sur conusance
(1) A fine may be levied by the chief justice, or either of the Fine may be puisne judges of the court of C. B., or a sergeant at law, by levied by any
judge, &c. of dedimus, but by no other commissioners if a judge be in town; C. B. and where levied by a judge or sergeant, the dedimus may issue after the acknowledgment, but if by any other commissioners it must issue before the acknowledgment, Nokes v. Styles, 3 Taunt. 49.
(2) All the courts of common law have, for the purpose of Fine to be levying fines, jurisdiction over every part of the kingdom, except Common Pleas. Ireland, Wales, the counties palatine of Durham, Lancaster and Chester, and lands in ancient demesne. But as the court of Common Pleas is the only court in which original pleas concerning the right of freehold in real actions can be entertained, 3 Black. Com. 40. a fine levied in either of the other courts at Westminster, or elsewhere, unless by special custom or act of parliament, would be at least voidable, if not absolutely void, see Co. Read. 9. and vid. post, No. XXXI. (A), p. 46.
And even acts of parliament erecting a special jurisdiction to levy fines do not take away the general jurisdiction which the courts of Westminster before had, but only give to the particular place a concurrent jurisdiction with those courts, see Hard. 116. 130. Kindston v. Millar, 2 Dick. 773. Warden of St. Paul's v. Cricket, 2 Ves. jun. 563. Ditto v. Morris, 9 Ves. 155. Antrobus v. East India Company, 13 ib. 169.
If the lands lie within the precincts of a county palatine, or Lands in within the principality of Wales, say
Wales or pala
tinate. “ Shall and will, &c. at the next great or general court of great sessions or assizes, to be holden in or for the said
(3) If the lands be situated in different counties, several writs Lards in difof covenant must be brought against the cognizee as in other ferent counties. real actions, although they may all be comprised in the same fine, see 2 Inst. 512. Dyer, 227:
PURCHASES. de droit come ceo (1), &c. with proclamations (2)
to be thereupon made, [according to the form of Wife.
Ancient de mesne.
before his Majesty's justice or justices of the same sessions, or other person or persons lawfully authorised in that behalf, acknowledge, &c.” as in the text.
If the premises be within any city or town authorised to take acknowledgment of fines, say
6 Shall and will, &c. at the next court of our lord the
If the lands be holden in ancient demesne, say
next ensuing the date of these presents, or as soon thereafter as may be, acknowledge and levy in the court of the lord or lords of the said manor of or other manor whereof the said
of them, are holden in ancient demesne, according to the custom of the same manor, one or more fine or fines in the nature of a fine or fines sur conusance de droit come ceo, &c. at common law, unto the said (purchaser) and his heirs,” &c.
But it is to be observed, that as neither the statute de modo levandi fines (18 Ed. 1. st. 4.) nor the statute of nonclaim, 4 Hen. 7. c. 21. extends to courts in ancient demesne, Hunt v. Bourne, i Salk. 340. Com. 9$. 124. or other customary courts; fines levied in such courts will not (unless, perhaps, by special custom) operate as a bar of entails, or by nonclaimsee Cru. on Fines, 175, 192.
(1) See the form of the præcipe and concord of this fine, post, No. XXXI. (A), p. 46.
(2) It is not necessary that proclamations should be had upon a fine levied for the sole purpose of passing the wife's estate or interest, whether it be of her inheritance or a title to dower only; but as proclamations are necessary to give it effect under the
the statute in such case provided, or such other PURCHASES. fine or fines, and in such other manner and form as the circumstances of the case may require], of
Wife. all and singular the messuages, lands, tenements, and hereditaments hereinbefore granted and released, or intended so to be, [by the name and description of, &c. (1) or such other names and descriptions respectively, as shall be sufficient and proper effectually to comprise and pass the same, and as the counsel in the law of the said (purchaser), his heirs or assigns, shall advise for that purpose]. And (2) it is hereby declared and Declaration of
the uses of the fine.
statute of non-claim (4 Hen. VII.) or to bar an entail, it is usual to have every fine levied with proclamations, in order that those purposes may be obtained.
(1) Although in describing the parcels in deeds where there Parcels. is a declaration of the uses of a fine, no particular precaution is necessary beyond what is sufficient to comprehend all and no more, than the premises of which the fine is intended to be levied, which may be done, either by setting them out in full, or referring to them as described in a preceding or subsequent part of the deed in the usual way of describing or referring to them in purchase deeds. Yet, as it has been determined that the premises will pass by any denomination which the parties affix to them, a consolidated description of them similar to that in the fine itself, as of two messuages, twenty acres of land, &c. is added by some practitioners, with a view of their more certainly passing in case of any omission in the detailed description, and to avoid the necessity of applying to the court to amend the fine, in case of any such omission ; this mode is not, however, generally adopted.
(2) This part of the deed, declaring the uses of the fine, should Uses of fine. be so framed as to be the words of all parties who are beneficially interested in the premises. For if any party interested omit to concur in the declaration of uses, the use as to the interest of such VOL. II.
PURCHASES. agreed, by and between all and every the parties
hereto, according to their respective estates and Wife. interests, and they do hereby respectively direct
that the fine or fines (so as aforesaid, or in any other manner, or at any other time or times, to be acknowledged and levied, of the said messuages, lands, tenements, and hereditaments, or of any part thereof, and also all other fines, conveyances, and assurances in the law whatsoever, at any time or times heretofore, [or to be at any time or times hereafter] (1), made, acknowledged, levied or executed, of the same hereditaments and premises, or any part thereof, either alone or
Uses of future fines.
party will result back to him, and this use, in the case of a fine, will be as of his former estate, even though he be tenant in tail, and not as of an estate in fee-simple, as it would in case of a common recovery.
(1) The declaration of the uses of the fine is generally made to extend to all preceding and subsequent fines which have been or may be levied by the same parties, which is done with a view of enabling all such fines to give effect to the present object of the parties, and this, so far as regards fines which may have been previously levied, and of which no other effective uses have been declared, may be well enough; but when applied to subsequent fines, it appears to be going too far, and may control and confine the uses of future fines to those here declared, contrary to the intention of the parties, should any such future declaration of uses happen to be in any respect defective: if, however, the declaration of uses be made thus extensive, care should be taken expressly to confine it to the premises comprised in, and the parties interested under the present deed, and should, I conceive, as to future fines, have a qualification subjoined to the effect of “ so far as the uses of any fine or fines hereafter to be levied shall not be otherwise lawfully declared or intended to be declared of or concerning the premises therein to be comprised."