Waddy v.
Newton,

8 Mod. 276.

Bruyn's Case, 6 Rep. 67 a.

Tit. 32. c. 20. § 34.

Stork v. Fox,

by which it is measured; as an acre, oxgang, hide, rood, &c.; and by the names which are usually given to the different kinds of land; as arable, meadow, pasture, &c.

16. Where a fine was levied of a certain number of acres of land, it became a question whether the acres were to be considered as customary acres, or according to the statute de terris mensurandis; nor does it appear how the case was determined. But Lord Coke mentions a case where it was adjudged, that in a common recovery of a certain number of acres of land, they should be estimated according to the customary and usual measure of the country, and not according to the statute de terris mensurandis.

17. The particular vill or hamlet, town, hundred and county, in which the lands lie, ought to be mentioned in the fine. And where a fine was intended to be levied of lands lying in two vills, and one of the vills only was mentioned in the writ, it was held, that the lands lying in the other vill did not pass.

18. Upon a special verdict it appeared, that there Cro. Ja. 120. were two vills, Walton and Street, in the parish of Street. A fine was levied of certain lands in Street; and whether the lands in Walton passed by that fine, was the question.

It was adjudged that they did not pass; for Street being a distinct vill, and so found by the verdict, although the parish of Street comprehended them both, yet the lands in Walton were not comprised in the fine. But if the fine had been levied generally of lands in the parish of Street, then all had well passed.

19. If a fine be levied of lands in A., and the party has also lands in B., yet if the constable of A. is also constable of B., all the lands shall pass; for in such cases both places constitute the same vill.

20. Upon a special verdict it appeared, that a fine had been levied of all the cognizor's land in A., and that he had lands in B.; that a tithingman was appointed in B., but that the constables of A. exercised their authority, not only in A., but also in B.

Lord Holt said, one parish might contain three vills. The parish of A. may contain the vills of A. B. and C.; that is, where there were distinct constables in every one of them. But if the constable of A. ran through the whole, then was the whole but one vill in law; or where there was a tithingman, it might be a vill; but if the constable ran through the tithing, then it was all one vill. He knew where 3. or 4,000l. a year had been enjoyed by a fine levied of land in the vill of A., in which were five several hamlets, in which were tithings, but the constable of A. ran through them all; and upon that, it was held good for all. There was a case of the constable of Blandford Forum, wherein it was held, that if he had a concurrent jurisdiction with all the rest of the constables, the fine would have passed the lands in all. In some places they had tithingmen, and no constables.

21. A fine may be levied of a close or messuage by a known name, without any mention of the vill or hamlet in which it lies.

Waldron v. 1 Mod. 78.

Roscarriot,

1 Vent. 170.

Butler,

22. In trespass, the question was, whether a fine Monck v. might be levied of a close, by a known name, in a Cro. Ja. 574. vill, without any mention of the vill or hamlet in which it lay.

It was adjudged, that the fine was good enough; for it was but the agreement of the parties, which being recorded, although there was neither vill nor hamlet mentioned wherein it lay, it was good. And notwithstanding it was objected, that a præcipe ought

Faveley v.
Easton,

276.

'to be in a village or hamlet, or place known out of a village or hamlet, as appeared by all pleadings; for if the place known was within a vill or a hamlet, the præcipe ought to be brought accordingly; yet it was answered, that this was true in a præcipe or other writ to which the defendant was to answer; but this being but a concord and agreement of the parties, and no exception taken, but the fine drawn and passed, it was good.

23. It was found by special verdict, that John Cro. Car.269. Easton, being tenant in tail of a certain messuage and lands called Easton's, lying in Bishop's Morchard, levied a fine thereof, by the name of a messuage and 200 acres of land; 50 acres, &c. in Essington, Easton, and Chilford; and that there was not any vill or hamlet or place known by the name of the messuage or tenement called Easton's, out of the vills or hamlets; and that none of the said tenements were in Essington or Chilford.

Stud v.
Courtenay,

1 Leon. 188.

Vide Tit. 32. c. 19. § 51.

The question was, whether, upon this matter found, a fine levied of lands in places known in a vill, not mentioning the vill or hamlet where the lands are, was good.

All the Judges were of opinion that the fine was good; because, being but an assurance, it was to be taken favourably.

24. The word tenement is not a sufficient description of any thing whereof a fine is levied; for a tene ment may consist of a messuage, land, or any other thing which lies in tenure. And there is an instance where a fine, levied of two tenements, was reversed by writ of error.

25. In the case of an ambiguitas latens in the description of the things whereof a fine is levied, an 5 Mod. 235. averment is admitted to explain it. Thus if a person

Gilb. Ev. 38.

has two manors, which are both known by the name of Dale, and he levies a fine of the manor of Dale generally, circumstances may be given in evidence to prove which manor was intended to pass by the fine.

26. A fine does not ascertain but only comprises Tit. 32. c.12. the lands whereof it is levied; so that it is in all cases $8. extremely proper to have a declaration of uses, in order that the precise lands comprehended in the fine, and intended to pass by it, may be ascertained.

1 Ves. Jun.

138.

27. There are frequent instances of tenants in fee 2 Atk. 241. simple, who, in levying fines, insert more parcels of land than do actually belong to them; in which case Lord Hardwicke says, a court of equity will restrain the operation of the fine to such lands as do really belong to the parties.

TITLE XXXV.

FINE.

Original

Writ.

Gage's Case, 5 Rep. 45 b.

CHAP. VII.

Of the Amendment of Fines.

2. Original Writ.

7. Entry of the King's Silver.
9. The Proclamations,
13. Description of the Lands.

FINES

24. Names of the Parties not amended.

27. A Fine of one Term will not be altered to another.

SECTION 1.

INES being now considered as common assurances, made with the consent of the parties, the Court of Common Pleas, upon the authority of the statute 8 Hen. VI. c. 12., by which the Judges are authorized to reform and amend all misprisions of clerks in records, has frequently permitted fines to be amended; where any palpable mistake or misprision has been made by the officers of the Court, in the entry of the King's silver, the proclamations, or the description of the lands.

2. The Judges have, in some instances, even directed the original writ, upon which a fine has been levied, to be amended. But the propriety of such amendment seems, from some modern determinations, to be ex tremely doubtful.

3. A writ of error was brought to reverse a fine, and the error assigned was, that the writ of covenant bore teste the 24th of April, returnable quind. pasch. which was the 14th of April, so that the return was before the teste.