nant. (a) But lands purchased of two different persons cannot be comprised in the same concord, except on an affidavit that the value of both together does not exceed two hundred pounds. (b) Whereever, therefore, in an abstract of a fine, other names appear than those from whom the title is derived, inquiries must be made as to the particular circumstances of the case.

It should always be inquired whether a fine was levied with proclamations, if the fact does not appear on the abstract. An error in the proclamations will not destroy the validity of the fine, for it will still operate as a fine at common law; but if the fine be erroneous, the proclamations will be also void; (c) but properly it should be seen that the proclamations were made in term and on dies juridici; for if they appear to have been made out of term, or on a Sunday, or other festival, in which the Court of Common Pleas does not sit, the proclamations will all be void. (d) · A fine sur conuzance de droit come ceo, &c. is now always levied with proclamations. A fine sur concessit, and a fine sur conuzance de droit tantum, are usually levied without proclamations, Proclamations are necessary to bar the issue in tail, (e) and to gain a title by nonclaim, (ƒ) but they are not necessary to the conveyance of a married woman's estate. (g)

It must also be observed whether the description of the parcels in the fine is sufficient to convey the property; but as fines are now considered as common

(a) 2 Inst. 512; Dy. 227.

(b) Wils. on Fines, 47.

(c) Dy. 216 a.; 1 Buls. 206.

(d) Fish v. Brocket, Plowd. 265; Dy. 181 b.

(e) 32 Hen. VIII. c. 36.

(f) 1 Rich. III. c. 7. s. 4; 4 & 5 Hen. VII. c. 24.

(g) Driver v. Hussey, 1 H. B.

269.

assurances, the courts are not very strict about the description of the parcels, but principally look to the intention of the parties; and this is generally ascertained by referring to the deed declaring the uses, and the courts will amend the parcels by it, though executed subsequently to the levying the fine. (a) Where, however, the intention is not clear from the deed of uses, the court requires an affidavit of the intention. (b) But where the fine is to pass the estate of a married woman, the parcels cannot be amended by the deed of uses. (c) And a fine will not pass a greater number of acres than are contained in the. writ and concord, although the deed of uses mentions more. (d)

Where a doubt arises as to what property passed by a fine, parol evidence is admissible to show what property was intended to pass, as what is included in a fine is a question of law and fact. (e)

By the 1 Wm. IV. c. 70. (f) it is enacted, that upon all fines which now are, or before the commencement of the act shall be, duly acknowledged in Chester or Wales, proclamation shall be made at successive assizes, to be holden under his Majesty's commission in the county of Chester and principality of Wales, before any judge of such assize, during the continuance of such his commission, in the same manner and form, and with the same force and effect, as if the same had been proclaimed before the jus

tices of Chester and Wales, or any of them; any law or usage to the contrary notwithstanding.

And by section 29, all fines and recoveries to be levied and suffered after the commencement of the act, of lands, tenements, and hereditaments in the county of Chester or principality of Wales, shall be levied and suffered in such and the like manner, and the same officers shall be employed therein as in the case of fines and recoveries now levied or suffered of lands, tenements, or hereditaments, in any county of England not being a county palatine. (a)

II. TITLES UNDER RECOVERIES.

Where a title depends on a recovery suffered by a tenant in tail, it should always be ascertained whether the freehold was not outstanding at the time of the recovery, in a tenant by the curtesy, or a tenant by dower, or some other person. (b)

It must always be seen, first, that there is a good tenant to the præcipe or writ of entry; second, that the tenant in tail has himself been vouched; third, that he has vouched over the common vouchee.

The tenant to the præcipe must have, at the time of suffering the recovery, the first estate of freehold in the lands; (c) but he need not have the lands at the time of the suing out or the return of the writ of entry, (d) or even at the time of the judgment given in

(a) The effects of a fine levied by a cestui que trust upon the estate of his trustee, has been very lately discussed in a case in the Court of King's Bench in Ireland: Lessee of Palmer v. Fausset, 1 Smith & Batty,

319.

(b) 1 Prest. Abs. 47.

(c) See Haines, Barley's case, 5 Mod. 210. Parkhurst v. Smith, Willes, 327; and see Goodright v. Rigby, 2 H. B. 46.

(d) Lacey v. Williams, 2 Salk.

568.

the recovery, and the award of the writ of seisin, provided the fine, or deed, or deeds, making the tenant to the præcipe, appear to be levied or executed before the end of the term, great-session, session, or assizes, in which such recovery was suffered, and the persons joining in such recovery had a sufficient estate and power to suffer the same.

The second point is not strictly necessary, but it is always advisable, as the tenant in tail will then not only bar the particular estate tail, upon which the recovery is intended to operate, but all other estates and rights to which he may be entitled.

An erroneous recovery is good until it be reversed, and amounts to a conveyance as between the parties when one of them has a seisin, and as an extinguishment by estoppel where there is merely a right of action or of entry, (a) and the recoveror can never falsify the recovery. (b)

In titles under recoveries it should also be seen, first, that the recovery is founded on a writ of entry, or other proper writ on which a recovery may be suffered; second, that the writ is brought against the person, or, if more than one, the several persons, who is or are tenant or tenants of the immediate freehold; and third, that judgment is given on the writ of entry in the lifetime of the tenant in tail, or at least on the day of his death. (c)

If one recovery has been defective for want of a good tenant to the writ of entry, care must be taken that this defect has become immaterial by the failure.

(a) 1 Prest. Abs. 421.

(b) Marquis of Winchester's case, 3 Co. 1, Bennett & others v. Vade, 9 Mod. 314. Duke & Smith's case,

4 Leon. 238. Lord Saye & Sele's case, 10 Mod. 45.'

(c) See 3 Prest. Abs. 136.

of the estate tail, &c., or that the defect has been sup plied by another recovery, or some other sufficient. assurance; and if a second recovery has been suffered, it is of the greatest importance to see that the freehold was in the tenant to the præcipe of the second recovery at the time of suffering such recovery. It is generally considered that a recovery which is defec tive to bar an entail for want of a proper tenant to the præcipe, or any other reason, will nevertheless be good as between the parties until reversed; (a) and that the declaration of the uses in the recovery deed will draw out the legal estate from the demandant, and vest it in the cestui que use, or cestuis que use; and it therefore seems necessary to the validity of the second recovery, that either the judgment in the first recovery should be reversed, or that a conveyance of the legal estate under the uses of the first recovery deed, should be made to the tenant to the præcipe in the second recovery, before it is suffered. This difficulty fre quently arises in abstracts, and is of great import

ance.

Where a recovery is necessary to a title, it is not complete before the return of the writ of summons. (b)

Although the deed for making the tenant to the præcipe be lost, the recovery will be valid after the expiration of twenty years from the time of the suffering thereof, if it appear on the face of such recovery that there was a tenant to the writ, and if the persons joining in such recovery had a sufficient estate to suffer the same. (c)

And after twenty years' enjoyment of lands, by a purchaser for a valuable consideration, whereof it was

(a) 3 Co. 5b; 10 Mod. 40; ante, p. 222 n. (b)

(b) Lewin v. Guest, 1 Russ, 325. (c) 14 Geo. II. c. 20. s. 5.