So, if commissioners take a fine of an infant, &c. the court will grant an attachment against them; and upon examination and inspection the fine shall be vacated. R. Skin. 24. (z) (C) To whom. All persons who may be grantees, may be conusees of a fine. Vide West, Symb. 4. a. (a) So a fine may be levied to a corporation aggregate. Vide West, Symb. 4. a. But a fine cannot be levied to any not a party to the writ of covenant, except by way of remainder. Nor to two persons and their heirs; for the court will refuse it. R. 1 Leo. 62. Yet the king may levy a fine to two and their heirs, and the court will not refuse it. So, the king's tenant, for the king's benefit. (b) (D) Before whom. By the st. (c) 18 Ed. 1. de modo levandi fines, a fine ought to be levied cium, sive finalem concordiam, adeo plenè et firmiter ut per eum qui alium loco suo inde possuit. Glanv. lib. 11. c. 1. 5 Cruise, 73. - 2. In consequence of this doctrine, fines were frequently levied by attorney, and in the Formulare Anglicanum there are several records of fines, which appear to have been levied by attorney, the chirograph being worded in this manner; Hæc est finalis concordia facta, &c. inter Thomam de Preston, per Alexandrum Wallensem, positum loco suo ad lucrandum vel perdendum, et Ranulphum, &c. No. 362. 369. 5 Cruise, 74.-3. This practice was productive of several frauds, and therefore the statute de modo levandi fines enacted, that the parties to a fine should appear personally in court, in order that the judges might have an opportunity of examining into their age and capacity. 5 Cruise, 74. (2) An infant acknowledged a fine, and the cognizee omitted to get it engrossed, until the infant should attain his full age, in order to prevent him from bringing a writ of error. The court, upon a view of the cognizance produced by the infant, and upon his prayer to be inspected, and to have his nonage recorded, inspected him, and recorded his infancy, in order to give him the benefit of his writ of error; which he must otherwise have lost, as his nonage determined before the next term. 12 Mod. 444. (a) Touch. 7. (6) The king may take lands by fine, because it is matter of record; and therefore where the Marquis of Berkeley levied a fine to certain persons, who granted and rendered to Lord Berkeley, and the heirs male of his body, remainder to King Henry VII., and the heirs male of his body, it was held, that the estate was well vested in the king. Plowd. 237. (c) 1. A fine being a composition of a suit commenced for the recovery of real property, it might originally have been levied in any court which had jurisdiction, to hold pleas of land. 5 Cruise, 111. Gilb. Ten. 100. Hale's Hist. 151. Præf. 3 Rep. - 2. Accordingly it appears, that in the early ages of the law, when courts were more numerous, and their jurisdiction more extensive than at present, fines were frequently levied in the lord's court, the hundred court, and the county court. Ibid.-3. And in Dugdale's Origines Juridiciales, 92. there is the record of a fine which was levied in the county court of Nottingham, in the reign of King John. Cruise, Ibid. 4. Fines were also levied in all the courts at Westminster, and even before the king himself, as appears from a great number of records which have been published in Spelman's Glossary, and by Dugdale and Madox. 5 Cruise, 112. Dugd. Orig. Jur. 50. 92. Madox, Form. Angl. No. 364.-5. From the time of the appointment of justices in cyre, by King Henry II. fines were usually levied before them, on account of the preeminence of their courts over the county courts; and Madox has preserved several concords of fines which are expressed to have been levied coram Abbate de Evesham Johanne de Munmul,&c. Justiciariis itinerantibus. 5 Cruise, 1123 Form. Angl. No. 365,366,367.369. Rol. Abr. tit. Fine, C6. In consequence of the fixed residence of the court of com mon levied before four justices (d) in C. B. or in eyre, and not elsewhere. (e) And the number of justices ought to be above one; and therefore, they were named antiently, that the number might appear. 2 Inst. 514. 1 H. 7. 10. 11. Now by st. 4 H. 7. fines may be levied before the justices of the common pleas. And therefore, the number of the justices is not now material 2 Inst. 515. If it be before three justices in C. B. omitting the other, it shall be good. Semb. Cro. El. 677. So a fine may be levied in the counties palatine of Lancaster and Chester. Vide West, Symb. 5. b. (ƒ) So, mon pleas, at Westminster, by magna charta, fines were thenceforth usually levied in that court; because therein only could real actions be commenced. Though if a record was removed by writ of error from the court of common pleas into the court of king's bench, a composition of the suit might take place there; by which means a fine might be levied in that court. 6 Cruise, 112. 4 Inst. 99. (d) Lord Coke says, that this provision was repealed by the st. 4 H. 7.; so that now a fine levied in the court of common pleas, before two justices, is considered to be equally valid as if all the judges were present. 2 Inst. 510. 515. Co. Read. 8. (e) 1. An opinion is advanced by Lord Coke, that a fine cannot now be levied, so as to have the force of a final concord, in any court but the court of common pleas; and therefore that the king cannot now, in contradiction to this negative statute, grant a power to hold pleas for the purpose of levying fines. seems, continues Mr. Cruise, also to have been of opinion, that, since this statute, fines 5 Cruise, 115.-2. He cannot be levied in any inferior court, unless the privilege of holding such court has been confirmed by act of parliament. Ibid.-3. But this, he concludes, is certainly a mistake; for fines may still be levied in inferior courts, as he shows in a subsequent part of his chapter. Ibid. (f) 1. The counties palatine of Lancaster, Chester, and Durham, having courts of their own, the king's ordinary writs do not run there; so that fines could not be levied in the court of common pleas at Westminster, of lands situated in those counties. 5 Cruise, 115. 2. But fines may now be levied in the courts of those counties, under the authority of the following statutes. all fines levied before the justices of the county palatine of Lancaster, commonly call3. By 37 H. 8. c. 19. it is enacted, that ed justices of assize at Lancaster, or before one of them, of any lands, tenements, or other hereditaments, lying or being within the said county palatine of Lancaster, which shall be openly read and proclaimed three several days in open sessions, in the presence of the justices of assize at Lancaster, or one of them, for the time being, and also that shall be openly proclaimed, in the same manner, at the two next general sessions that shall be holden in the said county palatine of Lancaster, at three several days in either of the said two sessions, after such manner and form as is commonly used in the court of common pleas at Westminster, shall be of like force, strength, and effect in law, to all intents, effects, constructions, and purposes, as fines levied in the court of common pleas. 4. If a fine is found by verdict to have been levied before the justices of the county palatine of Lancaster, without finding who those justices were, and whether they had power to take fines or not, the court will presume them to be such justices as have power by statute to take fines in the county palatine of Lancaster, if the contrary does not appear. 1 Wils. 275. c. 28. it is enacted, that all fines levied or acknowledged before the high justice of 5. By 2 & 3 Edw. 6. the county palatine of Chester, or before the deputy or lieutenant justice there, of any lands, tenements, or other hereditaments, lying or being within the said county palatine of Chester, which shall be openly read and proclaimed three several days in the open sessions, in the presence of the justice of the said county palatine of Chester, or before the deputy or lieutenant justice there, at the same sessions that the same fine shall be engrossed, and also that shall be openly read and proclaimed in the same manner at the two next general sessions that shall be holden in the said county palatine of Chester, next after the levying and engrossing such fine, at three several days in either of the said two sessions, after such manner and form as is commonly So, before justices in eyre. 2 Inst. 515. And in a court of antient demesne, (g) of lands of antient demesne. (h) R. (i) 1 Sal. 340. (k) Vide Antient Demesne, (G 2.) (1) But commonly used in the king's courts of common pleas at Westminster, shall be of like force, strength, and effect in law, to all intents and purposes, as fines duly levied with proclamations before the king's justices of his common pleas. 6. By 43 Eliz. c. 15. s. 3. it is enacted, that it shall and may be lawful to and for all persons, upon any original writ or writs of covenant, or any other original writ or writs, whereupon fines have been usually levied, to be purchased out of the court of exchequer, within the county palatine of Chester, returnable before the mayor of the city of Chester in the portmoot court, to be holden within the said city, to levy any fine or fines of any lands, tenements, or hereditaments, lying or being within the county of the city of Chester, before the mayor of the said city, in the said portmoot court, in such manner and form as fines may be levied before the high justice of the county palatine of Chester; and that the mayor of the said city, shall have full power and authority to to receive and record all and every such fine and fines; and that all and every such fine and fines which shall be so levied, and which shall be openly read and proclaimed before the mayor of the said city, in the said portmoot court, once at the same court day. that the said fine shall be engrossed, and once at every of the nine next court days of portmoot next after the levying and engrossing of such fine, shall be of like force, strength, and effect in law to all intents, constructions, and purposes, as fines duly levied with proclamations before the said high justice of Chester.-7. By 5 Eliz. c. 27. all fines levied before the justice or justices of the county palatine of Durham, for the time being, authorized for that purpose, of any lands, tenements, or other hereditaments, lying or being within the said county palatine of Durham, which shall be openly read and proclaimed two several days in the open sessions, in the presence of the justices of assize at Durham, or one of them, at the same sessions that the same fine shall be engrossed, and also that shall be openly read and proclaimed in the same manner at the two next general sessions that shall be holden in the county palatine of Durham, next after the levying or engrossing of such fine, shall be of the same force, strength, and effect in law, to all intents and purposes, as fines duly levied with proclamations before the queen's justices of the common pleas at Westminster. 8. Upon the reduction of Wales, courts of justice were erected there, in which all pleas of real and personal actions were to be held; and fines of lands situated there are levied in those courts under the authority of the st. 34 & 35 H. 8. c. 26. s. 41., by which it is enacted, that all fines levied before the justices of Wales, of lands, tenements, and hereditaments situated within their jurisdiction, with proclamations made the same session, that the said fine shall be engrossed, and in the two other great sessions then next to be holden within the same county, shall be of the same force and effect, to all intents and purposes, as fines levied with proclamations be of, that be levied before the justices of the common pleas of England. 5 Cruise, 116.- 9. The isle of Ely is a royal franchise; the bishop having, by a grant of King Henry I., jura regalia, whereby he acquires both a civil and criminal jurisdiction; and therefore fines are levied in a court held by the bishop's justices, of all lands situated within that franchise. Ibid. 4 Inst. 220. (g) Á fine, however, so levied, has only the effect of a fine at common law, which, when levied of an estate tail, is to create a discontinuance; and does not bar the issue in tail from bringing a formedon. For no fine, unless it is levied with proclamations, pursuant to the st. 4 H. 7., has the effect of barring an estate tail, except in the case of copyholds. Dyer, 373. Com. R. 624. (4) And since tenants in antient demesne cannot sue or be sued for their lands in the king's courts, but have the privilege of having justice administered to them in the court of the manor by writ of droit close, directed to the lord of the manor whereof the lands were held, it follows, that no fine can be levied in the court of common pleas at Westminster, of lands held in antient demesne; that, too, would be a wrong to the lord of whom the lands were holden, as they would by that means become frank-free, and not impleadable in his courts. 5 Cruise, 116. 2 Inst. 513. (i) Com. 93. 124. (k) 1. As tenants in antient demesne were allowed to prosecute actions in the court of the manor, they were also permitted to compound their suits there; by which means fines have at all times been levied of lands held in antient demesne, upon little writs of right close, in the court of the manor. 5 Cruise, 117. 2. And lord Holt and the other judges determined that this might be done, notwithstanding the court of the manor was But a fine cannot be levied in B. R. 2 Inst. 515. So, by the st. de modo levandi fines, 18 Ed. 1. It ought tobbefore the justices of C. B. or in eyre, and not elsewhere: and therefore, where a man has power tenere placita, a fine cannot be levied before him. 2 Inst. 515. So, against those negative words of the statute, the king cannot grant a power to levy a fine. 2 Inst. 515. So a man, or a corporation, cannot prescribe for levying fines in his court. Dub. 1 Leo. 188. Cro. El. 116. Ow.93. 1 Sal. 340. So a fine cannot now be levied in the exchequer, though it was antiently levied there. Mad. 145. (E) The parts of a fine. (E1.) Upon what writ it may be levied :-The original writ. There are five parts of a fine. 5 Co. 38. b. The first part of every fine is the original writ. 5 Co. 38. b. By the st. 18 Ed. 1. (m) the order of law does not suffer that a final accord be levied in the king's court without an original writ. D. Cont. 21 Ed. 4. 60. b. 62.a. 4. b. Mad. Form. Inst. 17. (n) The most usual writ, upon which a fine is levied, is a writ of covenant, which is not personal, but real, and requires performance and execution of the covenant. 1 Sal. 340. was not a court of record; because it was but agreeable to the power of that court in other instances, for they might proceed to try the mise joined in a writ of right close, which was of a higher nature than a fine; whereas in all other inferior courts, on the mise joined, the cause must be removed into the court of common pleas, by recordari. And the statute 18 Edw. 1., de modo levandi fines, was but declaratory of the common law, and was made to rectify a mistake, that fines were leviable in inferior courts, upon bills or plaints, which could not be, either by grant or custom, by reason of the negative words of that statute. But this did not extend to courts of antient demesne, for then the st. 18 Edw. 1., would make fines of those lands leviable in the court of common pleas; which was not the case; such fines being reversable by the lords. So that tenants in antient demesne would be under a double disadvantage; for a fine could not be levied of their lands in any court. Which judgment was affirmed by the house of lords. 1 Salk. 339. Com. R. 93. 124. 4 B. P. C. 66. (4) 1. Fines may be levied in the courts of cities and corporate towns, where such courts have power to hold pleas of land. Thus Madox has published the record of a fine levied in the town court of the city of Coventry, before the mayor and bailiffs; and also a fine levied in the court of Fordwick, to which King Henry the Eighth was a party. 5 Cruise, 118. Mad. Form. Ang. No. 579. 394. -2. Unless however it appears that such court had a power of taking fines, the fine is void and may be reversed; and, therefore, in a writ of error to reverse a fine levied in Shrewsbury, before the bailiffs there, the first error assigned was, that it did not appear that they had any authority to take fines, and that they could not have it, by prescription or by general words in the king's grant; and the court said, the fine was void, it not appearing by what authority it was levied, for it was in derogation of the crown, and of its profits pro licentia concordandi. Cro. Eliz. 314.-3. By st. 54 & 35 Hen. 8. c. 26. s. 40. it is enacted, that fines shall and may be taken before the justices of Wales, of lands, tenements, and hereditaments situated within their jurisdiction, by force of their general commission, without any writ of dedimus potestatem to be sued for the same, in like manner and form as is used to be taken before the king's chief justice of the common pleas in England. (m) And since the passing of this act, no material alteration has been made in the manner of levying fines. 5 Cruise, 73. (n) If, however, the judges permit a fine to be levied without an original writ, it is not absolutely void, but only voidable. Yet Yet it may be levied upon every writ, by which land is demanded, or by which land is charged or bound, or which concerns land in any sort. 5 Co. 38. b. 1 Sal. 340. (0) As, in a writ of right. 1 Sal. 340. (p) A warrantia chartæ. 370. 5 Co. 39. A writ of mesne. 5 Co. 39. Bend. pl. 138. Mad. Form. 368. A writ of customs and services. Vide West, Symb. 6. a. 2 Inst. 513. A præcipe quod reddat. 5 Co. 39. 5 Co. 39. Per quæ servitia, or quem redditum reddit. 5 Co. 39. In an assise of mortd' ancestor. Mad. Form. 365, 366. So, in a writ of darrein presentment, quare impedit, &c. Mad. Form. 364. Vide West, 2 Inst. 514. So a fine may be levied by a vouchee to a demandant, or by the demandant to him. 2 Inst. 514. Or, by tenant by deceit to a demandant, or by the demandant to him. 2 Inst. 514. But a fine without an original writ is erroneous. 2 Inst. 513. (q) So, if it contains more than was in the original. 2 Inst. 513. Or be levied to more persons. 2 Inst. 514. The writ of covenant, upon which a fine is levied, ought to be written without razure, or interlineation. It ought to be without false Latin. The teste ought not to be upon a day not dies juridicus. (r) It ought to have fifteen days between the teste and return. It ought to be returned as another writ. If a fine be of a thing not comprised in the original, it is void for that: as, if the writ be of the manor of B. and the fine of the manors of B. and C. it is voidable for the manor of C. 2 Inst. 513. (0) 1. The writ on which fines are now usually levied is a writ of covenant, which is in the realty, and lies where a man covenants to levy a fine to some other person of his lands and tenements. Booth, Real. Act. 247.-2. The form of which writ is, præcipe A. quod teneat B. conventionem inter eos factum de manerio, &c. et nisi, &c. F. N. B. 146. 3. And where the lands of which a fine is intended to be levied are situated in different counties, there must be a writ of covenant for each county. 5 Cruise, 75. (p) 1. Rep. T. Holt. 322. 2. A fine may be levied of an advowson, in a writ of right of advowson, of which Madox has given an instance of great antiquity. Form. Angl. Diss. s. 15. 5 Cruise, 75.- 3. But a fine cannot be levied on an original in a personal action. 5 Cruise, 75. (q) 1. Vide supra, that then it will be erroneous only, and not void.-2. If an original writ be countermanded by a retraxit, a fine cannot afterwards be levied on it. Co. Read. 10. 1 Inst. 352. b. · 3. Thus in an assise, the plaintiff appeared and made a retrarit; afterwards the judges recorded an agreement between the parties, in the nature of a fine; and by the latter opinion, it was void coram non judice; because when the agreement was made, there was no suit depending, the writ being determined by the retraxit. Bro. Abr. tit. Fine, pl. 82. (r) Nor upon a Sunday. |