Bedford v.
Forster,

nine persons. The commissioners took the acknowledgement of six out of the nine persons on one piece of parchment, and of the remaining three upon another piece of parchment; which mode of taking the acknowledgements was objected to by the officers.

On a motion that the fine might pass, Mr. Justice Heath said, that these separate acknowledgements would not warrant a joint judgement; and the motion was refused.

44. A fine will not, however, be reversed for any trifling error or mistake in the return made by the commissioners under a writ of dedimus potestatem.

45. A writ of error was brought to reverse a fine Cro Ja. 27. taken by commissioners, because upon the back of the writ of dedimus potestatem it was stated thus ;Executio istius brevis patet in quodam panello huic brevi annexo. But all the court held it was matter of form, and not material; for although it be not properly said to be a pannel, yet a pannel and a schedule are all one in substance, and no cause to reverse the fine.

Rules of

Court on

46. By a rule of the Court of Common Pleas, made this Subject. in Hil. 13 Geo. I. it was directed, that no fine acknowledged before commissioners should be allowed to pass, unless some person who was present when the fine was acknowledged should appear personally before the Lord Ch. J. of the Court, and be examined upon oath touching the execution thereof.

Wilson, 85.

This rule having been found by experience to be attended with inconveniences, and not having answered the good purposes for which it was intended, the Court made the following rules.

47. Hil. 17 Geo. II. "That instead of an oath made vivá voce of the due acknowledgement of fines, an affidavit in writing on parchment shall be made

and annexed to every fine, in which the person making the same shall swear that he knew the parties acknowledging such fine; that the same was duly signed and acknowledged; that the party or parties acknowledging, and also the commissioners taking the same, were of full age and competent understanding; that the feme coverts (if any) were solely and separately examined apart from their husbands, and freely and voluntarily consented to acknowledge the same; and that the cognizor or cognizors, and every of them, knew the same to be a fine to pass his, her, or their estate or estates: which fine, together with such affidavit annexed, shall be transmitted to the Lord Chief Justice, or some other Justice of this Court, for his allocatur thereon, and such affidavit shall remain annexed to such fine, and be left with the same in the proper office and it is ordered that every such affidavit, except where the persons, at the time of their acknowledging the fine, are in Ireland, or some other parts beyond the seas, shall be made by some attorney of the courts of Westminster Hall."

48. Hilary 26 & 27 Geo. II. " It is ordered, that Wilson, 89. in the affidavits made in pursuance of the preceding rule, the person or persons so making the same shall swear that the fine was duly signed and acknowledged upon the day and year mentioned in the caption; and if there be any rasure or interlineation in the body or caption of such fine, that such rasure or interlineation was made before the party or parties signed the said fine, and before the caption was signed by the commissioners."

49. A fine was taken before Prentice an attorney, Say v. Smith, and Prentice a tradesman, as commissioners. Prentice Barnes, 217. the attorney died without making the proper affidavit of the acknowledgement of the fine. One of the

Fleetwood v.
Calenda,
Barnes, 219.

7

Heathcock v.
Hanbury,

cognizors became a bankrupt, absconded, and did not surrender within the 42 days, as required by the statute. The fine was ordered to pass, on an affidavit of the due acknowledgement of it by Prentice the tradesman; notwithstanding the general rule requiring such affidavits to be made by attornies.

50. Where fines have been acknowledged out of the kingdom, the Judges have also remitted the strictness of these rules.

51. The Lord Ch. J. assisted by Mr. Clive, made an order that a fine should pass as to two of the cognizors, considering the particular circumstances of the case, notwithstanding the same was not signed by them. One of the commissioners attended and made oath that the fine was duly acknowledged before him and another commissioner at Naples; that the parties were of full age and good understanding; that the married woman was examined apart from * her husband, and freely consented. The fine being taken from persons beyond seas, it was not within the order of the Court, requiring an affidavit; and the signing of a fine by the cognizors was not absolutely

necessary,

52. Two fines taken at Hamburg, where the Barnes, 217. cognizors resided, were ordered to pass by all the four Judges, upon an affidavit by a commissioner of the due execution of each fine, sworn before a clerk in the Chancery of the city of Hamburg; and authenticated by his certificate or attestation, as a notary public.

Seton v.

Sinclair,

53. A fine was taken at Edinburgh, and was 2 Black. R. regular in every respect, except that it was not acknowledged in the presence of an attorney of any of the courts of Westminster Hall, who might have made the usual affidavit of its having been duly

880.

taken. An affidavit was made by Seton, the plaintiff, that there was no such attorney in or near Edinburgh. And the Court, on the motion of Serjeant Davy, who cited the case of Say v. Smith, allowed the ante, § 49. fine.

54. The notarial certificate required in the case of a fine acknowledged in a foreign country, must be under seal. A defect in this particular cannot be supplied by proof of the hand-writing of the cognizors.

55. Henry Count Bourbell and Mary his wife, the conuzors in the fine, were resident in France, and the acknowledgement was taken before commissioners in that country; the affidavit of the due taking purported to be sworn before the mayor of the city of Neufchatel, and was subscribed with his name. A certificate that that person was mayor of the said city was signed by two persons, who stated themselves to be public notaries; but no notarial seal was annexed.

Cratteuden
v. Bourbell,
1Taunt. 144.

The Court said they could not supply the defect arising from the want of a seal. There was no rule of court expressly applying to the case of fines levied by persons resident abroad; but the rule relative to Tit. 36.c.3. recoveries suffered by persons under these circumstances, had always been held to extend to the case of fines; by that rule a seal was necessary.-The

19. Who are incapable of levying | 52. Who may take by Fine.

Fines.

SECTION 1.

Who may lery Fines.

Elliot's Case,
Carter, 53.

Griffin v.
Ferrers,

Barnes, 19.

A FINE being considered as a common assurance

or conveyance of real property, it follows that all persons of full age and sufficient understanding, may in general levy fines of those lands in which they have any estate of freehold, either by right or by wrong.

2. Even persons who are blind, deaf, or dumb, or who are both deaf and dumb at the same time, may levy fines; if it appear that, notwithstanding those Keys v. Bull, disabilities, they are capable of comprehending the nature and consequences of a fine, and can express their meaning by writing or signs. And there are three instances of persons born deaf and dumb, who were permitted to levy fines.

Id. 23.