and observed, that the release did not convey all the hereditaments described in the lease, but only the hereditaments belonging to the messuages and lands before described in the release itself; and that tithes were not hereditaments belonging to Clutterbuck land, but were a separate subject of tenure, and 1 Marsh, 406. must be held by a different title. v. Brabant, Cent. 6. 21. It is laid down by Jenkins that more acres of land do not pass by a fine, than the fine mentions, although the indenture that leads the use of it mentions more acres than are in the fine; for the fine is the foundation of the estate, and the estate ought to rise out of it. 22. This doctrine appears to be now changed, for the number of acres in the fine will be altered in conformity to the deed of uses, which is the measure 4 Bro. Parl. by which juries usually go in ascertaining the descrip Eyton v. Eyton, Ca. 149. Powell v. 2 Black. R. tion of the estates whereof a fine is levied. But where the deed of uses is general, the Court will not allow the number of acres inserted in a fine to be increased. 23. On a motion to amend a fine by increasing the number of acres, the deed of uses being general, and the intent only proved by affidavit ; Lord Ch. J. De Grey observed, that amendments anciently were only of errors in the process of fines, or mistakes in the description of the premises; and these were amended by other parts of the same record: but the amendment then required varied the extent of the premises from 50 to 84 acres. This indeed might be done upon principle, provided it was intended by the parties; but what was the evidence of that intent: the deed to lead the uses could not be legal evidence of the wife's intent, because she was not examined as to the deed, as she was to the fine; and so there was nothing to amend by. Sir W. Blackstone thought the deed of uses sufficient evidence of the intention of the parties, and that it had always been allowed as such, even in the case of femes covert; Luggins v. Rawlins, Barnes. But what did the deed of uses say: it described no number of acres; that was to be proved by viva voce Bartrain v. evidence, which was too dangerous. He could find 1 Marsh, 446. no precedent where the quantity or number of acres had been increased, much less nearly doubled, as in this case; and was not for making a precedent, which would give such an inlet to fraud. Towne, 24. An error in the names of the parties will not Names of the in general be allowed to be amended. Parties not amended. 2 Black. R. 25. On a motion to alter the name of the plaintiff Dixon v. in a fine from Robert to John; on an affidavit by the Lawson, attorney concerned, that John Dixon was the party 816. meant, who had purchased a part of the estate, and that no deed to declare the uses of this fine had then been executed. The Court thought that this was equivalent to a new fine; and refused the motion. 2 Bos. & Pul. 26. A motion was made to amend a fine, by alter- Ex parte ing the surnames of the deforciants in the writs of Motley, covenant and dedimus potestatem, and in the præcipe 455. and concord acknowledged by them, and at the several offices through which they had passed, from Wood to Motley; and that the chirographer should be ordered to deliver up such writs, &c. for the above purpose. An affidavit was produced of the attorney who was employed to pass the fine three years before, and of the deforciants themselves; the former of whom stated, that at the time he was employed to pass the fine, and through the whole of the transac tion, he understood the names of the deforciants to be Wood, and accordingly inserted that name instead of Motley, which he then found to be their real names, in the writ of covenant; and that they, being illiterate persons, only put their mark, and did not discover the mistake. The deforciants stated that the fine was read over to them, and they understood it, but did not discover the mistake which had been made with respect to their names. Lord Alvanley said, this was an application to amend a fine, by inserting the names of Motley and wife, instead of Wood and wife. It was not sworn that the parties at the time the fine was passed were as well known by one name as the other, or even that they were known by the name of Wood at all; and the Court was desired to make the amendment, without any reason given, why one name was put for the other. The consequences of such an amendment must be obvious to every body. Suppose an ejectment brought, and a search made for a fine and none found, and then, when the parties came to trial, a fine is produced, which escaped the search because the name had been changed. These amendments ought not to be made, except in cases where the alteration was of such a nature as that no one could be misled by it. He would go farther and say, that if the Court of Common Pleas had allowed such an amendment as was then applied for, he, as Master of 2 Bos& Pul, the Rolls, would not have granted a new writ of Ex parte Motley, 455. Vide Tit. 36. A Fine of one Term will not covenant. The other Judges concurred, and the motion was refused. 27. Although the Court of Common Pleas will be altered to amend a fine, in matters of form, yet where a fine another. is recorded of one term, that Court will not alter it, and make it a fine of another term. Wilson on 28. A fine was taken on the 1st October 1770, Heath v. Wilmot, 10 Geo. III. and acknowledged before commissioners, 2 Black. R. in which Sir J. Eardly Wilmot, then Lord Ch. J. of 778. the Court of Common Pleas, and others, were cogni- Fines, 78. zors, which was passed, engrossed, and recorded as a fine of the preceding Trinity term. Sir J. E. Wilmot had nothing in the lands, until a few days before he acknowledged the fine; and therefore in the deed to lead the uses thereof, it was covenanted by the parties, that the fine should be levied as of the Michaelmas term next ensuing the acknowledgement thereof; but by mistake the fine was recorded as of the preceding Trinity term. Upon producing the deed to lead the uses of the fine, and showing the mistake, it was moved that the fine might be altered, and made a fine of Michaelmas term, according to the covenant in the deed of uses; but Lord Ch. J. De Grey, and the whole court observed, that this was not a motion to amend a fine, but to make a new fine: for Sir J. Wilmot having nothing in the lands at the time when the fine was levied and recorded, it could only operate as a bar to himself, and those claiming under him; so that the granting of this motion might prejudice the rights of strangers. The motion was refused. TITLE XXXV. FINE. CHAP. VIII. Effect of Fines at Common Law, and by the Statutes 18 Edw. I. 27 Edw. I. and 34 Edw. III.. 2. Force of a Fine at Common 9. Of the Statute De modo 13. Of the Statute De finibus levatis. 17. Of the Statute of Nonclaim. Force of a mon Law. SECTION 1. AVING stated the various circumstances which are necessary to the levying a fine, I shall now proceed to investigate the effects with which it is attended. 2. By the common law all judgements of courts Fine at com- were allowed the utmost force in determining the rights of the contending parties; now a fine being considered as a composition of a suit actually commenced, and the concord of a fine coming in lieu of the sentence which would have been given in case the parties had not agreed to terminate the suit in that manner, it was allowed to have the same force and effect as a judgement in a real action. Cod. lib. 2. 3. This idea seems also to have been adopted from the civil law; for it is said in Justinian's Code-Non tit. 4. 1. 20. minorem auctoritatem transactionum quam rerum judicatorum esse recta ratione placuit. And the rule laid down by modern civilians is-Transactio inter ipsos Trans. c. 8. transingentes eandem vim habet quam res judicata ; Vin. de 7.3. |