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to subscribe their names at the bottom of the said note and foot; and every such fine whereof the record should be so new engrossed, should be of the same force and effect, as if it had still remained upon record unconsumed or not lost.
60. It is a principle of the common law, that the No Averment evidence of a record is of so high and certain a na- Record of a
against the ture, that its authenticity is never permitted to be Fine. called in question; so that no averment can be made 2 Inst, 260 a,
Dyer, 89 6. against any fact which appears on record. Thus if it
appears upon record, that the King's silver was paid before the death of the cognizor, though in truth the fact be otherwise, the Judges will support the fine, and will not allow of any averment that the cognizor died before the entry of the King's silver, because that would contradict the record.
61. So when the chirographum of a fine is recorded, no averment will be allowed as to the time of its caption or acknowledgement; but it will be considered as a fine of that term in which it is recorded.
62. Upon a trial at bar, in ejectment, it appeared, Lloyd v. Vis. that Nathaniel Lord Viscount Say and Sele, being Say and Sele, tenant in tail of the premises in question, with re- Salk. 341. mainder over, levied a fine in October 1701, and, in 4 Bro. Parl. Michaelmas term following, suffered a recovery; and Ca. 73. to prove this, the chirograph of a fine was produced, importing, that Nathaniel Viscount Say and Sele levied that fine on the 23d of October 1701 ; and the exemplification of a common recovery was also produced, which appeared to have been suffered on the 18th of November 1701. The question was, whether the cognizee of the fine had the freehold in him when the
recovery was suffered ? It was insisted by the plaintiff's counsel that he had not; for that the fine given in evidence to make hing
10 Mod. 40.
so, was not in fact acknowledged until the ed of March 1701, which was four months after the recovery was suffered ; and, to support this fact, they offered to produce and prove, 1st, The record of the recognizance, or acknowledgement of the fine, under the hand of the Lord Chief Justice Trevor, whereby it appeared, that the acknowledgement thereof was made and taken before the said Lord Chief Justice on the 2d day of March 1701, and not before. 2dly, That the acknowledgement of the fine was the very true acknowledgement or recognizance of the concord upon which the fine given in evidence passed, and upon which the chirographer of that fine was made and engrossed. And, 3dly, They offered to produce the files of the Court of Common Pleas of the acknowledgement of all fines in Michaelmas term 1701, whereby it would appear that Lord Say and Sele did not acknowledge any fine whatsoever, of or in that term, at any time before the suffering the common recovery. But the Court of Queen's Bench refused to admit any of the matters offered against the fine to be given in evidence, being of opinion, that no proof or evidence of the time of the acknow. ledgement of a fine ought to be admitted, contrary to, or against the chirograph thereof; and that the record, which is the chirograph of the fine, cannot be falsified until it is vacated or reversed.
From this judgement, a writ of error was brought in the House of Lords; and one of the errors assigned was, because the records and matters offered to be given in evidence, were not admitted or allowed by the Court to be given in evidence to prove the true time of acknowledging the fine. In support of which, it was insisted, that as the fine was not in fact acknowledged until the 2d of March, it could not transfer
the freehold of the lands to the tenant to the præcipe three months before the time of that acknowledgement; and that the plaintiff was admitted to the proof of this fact by the statute 23 Eliz. c. 3. 5., which directs, that the time of the acknowledgement shall be certified by those who take such acknowledgement; for, if a man cannot give in evidence the time of acknowledging a fine, in order to avoid deceit imposed upon him by that fine, this statute would answer no purpose.
On the other side it was contended, that the caption of the fine ought not to be admitted against the record or indenture of the fine; for it would shake all family settlements, and introduce the greatest uncertainty and confusion in all conveyances by fines, upon which the most considerable estates in the kingdom depended ; and that an attempt to set aside a fine upon evidence was never before made. That, in the indentures of all fines, the concord is recorded to be made in court; whereas the captions of the acknowledgements of all fines (except a very few) are taken out of court, either before the Lord Chief Justice of the Common Pleas, or commissioners in the country; Vide infra, and upon a writ of error, no error can be assigned in the caption varying from the record, as that would be an error contrary to the record: but if, in the present case, the fine was irregular, the proper method was to apply to the Court of Common Pleas where the same was levied, and not attempt, in a summary way, to invalidate it by evidence in ejectment. The judgement was affirmed.
63. In the case of an ambiguitas latens, an aver. Exception. ment is however admitted to explain, not to contra- Tit. 32. c.19. dict a fine, upon the same principle as in the case of
8 Rep. 155 a. a deed. Thus if A. levies a fine to William his son, 5 Rep. 68 b.
to have and to hold to him and his heirs ; upon
this fine the Judge cannot make question upon any mat. ter of law, but the party comes and avers matter in fact, and saith that A. had two sons named William, an elder and a younger, and his intent was to levy the fine to William the younger. This averment out of the fine is good, of this matter of fact, which well stands with the words of the fine, and shall be tried
by the country Motions to
64. Applications are sometimes made to the Court from being of Common Pleas, by motion, to prevent fines from completed. being completed ; on a suggestion that the parties
are disabled by law from levying such fines. Wilson, 96. 65. By a rule of court, made Hil. 28 & 29 Car. II.,
all persons making any complaint against fines acknowledged by infants, feme coverts without the consent of their husbands, or persons of non sane memorie, or othe wise disabled by law to acknowledge the same, or by any person in the name of another, or by the like deceit, and obtaining rules for the staying of such fines, shall, from term to term, so long as they shall expect benefit or observance of such rules, enter and continue the same rule for that term, or leave copies thereof with the custos brevium, clerk of the King's silver, and chirographer, that the same may thereby be the better taken notice of; or, in default thereof, the said officers, or any of them, shall not stand farther obliged thereby.
And all persons concerned in the obtaining or prosecuting such rules for the staying of such fines so levied as aforesaid, their attornies and clerks, are thereby enjoined, every term, to search and see the books and entries of fines with the clerk of the King's silver, or other officer, where entries are kept for
66. By a rule of court, made Pasch. 29 Car. II., all manner of caveats and orders for the stopping any fines shall be renewed every term, and copies thereof left with the clerk of the King's silver, for which he is to demand only his ancient fee of 3s. 4d. the term; and in default thereof, all caveats that shall not be so renewed, shall lose their force and be void. 67. It appears to have been formerly not unusual Felony to ac
knowledge a for one person to acknowledge a fine in the name of Fine in the another; and in those cases, the Court of Star Cham- Name of anober, within whose jurisdiction frauds of this kind were considered, could only punish the offender by imprison- Hubert's ment. But by the statute 21 Ja. I. c. 26. it is enacted, infra, c. 14. that all and every person and persons who shall acknowledge any fine, in the name of any
other person, not privy or consenting to the same, and shall be lawfully convicted thereof, shall suffer death, without benefit of clergy 68. With respect to the time when a fine is com. When a Fine
is completed. pleted, Lord Coke, in his comment on the statute
2 Inst. 517, De modo levandi fines, says—“A fine is said to be levied when the writ of covenant is returned, and the concord and the King's silver duly entered : this maketh the land to pass, and from this shall the year and day be accounted, albeit the fine be engrossed afterwards."
69. When the mode of levying a fine by first aeknowledging the concord, then suing out an original writ, and paying the King's silver, was allowed, a different manner of expressing the rule laid down by Lord Coke was adopted; for the fine was said to be completed upon the entry of the King's silver, provided it was previously acknowledged; and if any
of the cognizors died before the remaining parts of the fine were perfected, still the fine would be validi