Law, Book 4 · Chapter 9
CHAP. 9.
Of a Curia claudenda, Writ of Couenant reall, meſne and warrantia chartae, where of fines.
THoſe that are to recouer ſome reall thing concerning hereditaments are a Curia claudenda, or a Couenant reall, and other writs ſounding in that nature.
A Curia claudenda lyeth for a (a)F. N. B. 128. a.freeholder, not for a Tenant for yeares, when one that hath a Cloſe next adioyning to him, (b) F. N. B. 127. b. & 128. a. F. N. B. 146. f.which he ſhould keepe encloſed, will not do it. A writ of Couenant reall, lyeth vponupon a Couenant to do a thing reall, as to leuie a fine of lands, &c. Writs in the nature of a couenant reall, are a writ of meſne and a warrantia chartae.
A writ of meſne lyeth for the Tenant ngainſt the meſne, when the Lord paramount Fit. N. Br. 135. m.doth diſtreine the Tenant whom the meſne ought to acquit.
Statutes.
Weſtm. 2. cap. 9. The Tenant diſtreined by the chiefe Lord may hauehave a writ in the Countie where he is diſtreined againſt the meſne, who hauing land in that Countie, and not appearing till the grand diſtreſſe, day ſhall bee giuen in the grand diſtreſſe, ſo as two Counties may bee holden before the returne. Wherein the Sherife ſhall proclaime that he come to anſwer the Tenant at the day. At which day if he come not, he loſeth his ſeruice, and the Tenant ſhall hold of the chiefe Lord by the ſame ſeruices that the meſne held. The chiefe Lord may not diſtreine the Tenant of the demeſne if he offer the ſeruice due. And exacting of him more then the meſne ought to doe, that Tenant ſhall hauehave the remedy that the meſne might hauehave.
VponUpon a returne that the meſne had nothing to be ſommoned by an attachment ſhall go out, and vponupon a nihil returned, the grand diſtreſſe with proclamation as before.
The meſne hauing no land in that countie but in another vponupon ſuch a returne by the Sherife, the partie ſhall hauehave a Writ Iudiciall to ſummon the meſne in that Countie where it is teſtified that hee hath lands, and both there and in the other Countie ſhall proceed to the grand diſtreſſe, and proclamation and Iudgement as before.
The meſne comming into the Count and acknowledging, or being adiudged to acquit his Tenant, and not doing it, the Tenant ſhall hauehave a Iudiciall Writ of acquittance. Whereupon if the meſne come in, and the Tenant can auer that he hath not acquitted him, he ſhall bee ſatisfied of his damages, and be quit of the meſne, and hold of the chiefe Lord, and if the meſne come not at the firſt diſtreſſe, then another diſtreſſe ſhal go out, and proclamation, and ſo proceed to Iudgement as before.
This ſtatute extendeth only where there is but one meſne betweene the Lord that diſtreineth and the tenant, the meſne of full age and the Tenant, tenant in fee ſimple.
A Warrantia Charta lyeth for him that hath lands or Tenements warranted vntounto F. N B. 134. d.him, either by feoffement, (a)12. H. 4. 22.releaſe, or confirmation with clauſe of warrantie, where his hereditaments are lyable from Fit. Nat. Br. 134. k …2. H. 6 22.the time of the action brought. Therefore it is pollicie for one to bring his Warrantia charta before he be ſued. For vponupon vouching when he is once ſued, he recouereth in value but ſuch lands as the vouchee had at the time of the voucher.
And vponupon theſe writs of (a)42. E 3. 5.Couent reall, (b)T. H Eitz.meſnes (c)Iohn per Dy. 179.warrantie of Charters, as alſo vponupon a Writ of (d)21. E. 3. 18.cuſtomes and ſeruice, s a fine may be leuied.
A fine is the acknowledging of an hereditament in the Kings Court according to the couenant, to be his right that doth complaine, He that complaineth is called plaintife, and the other deforceant. And this acknowledging of it to be ones right is called, A fine ſur conueyance de droit, But if the right be ackowledged to bee his, as that which he hath of the gift of the Coniſor, it is called a Fine ſur coniſance de droit come ceo quel ad de ſon done. The forme of a fine is, Haec eſt finalis concordia facta in curia dn'i Regis, &c. vnde plac' conuentionis pendet in ead' curia ſc. qd. prad' I. S. recognouit tenementa praed eſse ius ipſius A. &c.
A fine may be leuied vponupon a writ of warrantie of Charters, for it is in effect but a 42. E. 35. 40. E. 3. 7.couenant betweene the parties before the Iuſtices, and entred of record. And before the Statute of Weſtm. De his quae concordata ſunt (which giueth a ſcire fac.) if the fine were not executed, the partie ſhould hauehave a writ De fine fracto, and recouer dammages onelyonly, which proueth that a fine is but a couenant of record.
Where one of thē muſt needs hauehave ſuch an eſtate at the time of the fine leuied, for againſt the plea that the parties to the fine 22. N. 6. 57.had nothing &c. it is no good replication, that the parties were ſeiſed &c. for if one 27. H 8. 4. 37. H. 6. 5.of them were ſeiſed it is ſufficient. Which forme of pleading (viz that one of the parties was ſeiſed) proueth that if he hauehave 7. Eliz. Ploy. 360.left an eſtate for yeares the fine is voyd. And a fine of the land it ſelfe will paſſe away a reuerſion depending vponupon an eſtate eſtate for life. And this is as it were a feoffement of record. So as a freehold paſſeth (a) Lit. 12. is that in a feoffement made on pai…. &c. where a freehold paſſeth, be it by deed or without, there muſt needs be liuery of ſeiſin, which words (en pais) are put to exclude fines that are feoffements of record.thereby without any liuerie of ſeiſin. That where of the fine is leuied, or any thing contained in it, as a rent Common, &c. out of the land, an eſtate for yeares, or other eſtate in the land, &c. may be granted backe againe to the Coniſor by the ſame fine. And this is called a fine ſur graunt & render. The forme whereof is: Et pro hac recognitione, &c. the coniſee conceſſit, to the coniſor, praed' tenem' cum pertiū & illa ei reddidit (b) 18. E. 422.in ead' curia haben', to the coniſor, &c. (c) 36. H. 8. Br. fines 118.for none can take the firſt eſtate but thoſe that are named in the Writ of couenant. But euerie ſtranger may take a remainder. As A. leuieth a fine to B. who rendreth it backe to A. and E. his wife, &c. In this caſe E. hath no eſtate, for ſhe was not party to the Writ.
Statutes.
27. H. 1. Stat. 1. cap. 1. De finibus leuatis. Exception againſt a fine, that the plaintifes or defendants, or their anceſtors, were alwayes ſeiſed of the lands contained in the fine ſhall not from henceforh be admitted in the parties to the fine or their heires.
The fines ſhall two dayes in the weeke be publiquely and ſolemnly read, and all pleas ceaſe in the meane time.
5. H. 4. cap. 14. All Writs of Couenant and other, whereupon ſines be leuied, the Dedimus poteſtatem, and all knowledges and notes of the ſame, before that they bee drawne out of the Common bench by the Chirographer, ſhall be enrolled in a roll to be of record for euer Out of the which execution ſhal be had, if the notes or fines ſhal be imbezilled.
23. Eliz. cap. 3. Euerie Writ of Couenant, or other writ whereupon any fine is leuied, the returne thereof, the Dedimus Poteſtatem and returne thereof, the concord, note, and foot of the fine, the proclamations and the Queenes ſiluer: Alſo eueryevery writ of Entrie in the Poſt or other writ, whereupon any common recouerie is ſuffered, the Writs of ſommons ad warrantizandum, and the returnes of all theſe writs, and euerie Warrant of Attorny may at any mans requeſt be enrolled. Which enrolment ſhall be of as great force to all purpoſes in Law as the things themſelues if they were extant.
No fine, proclamation, or common recouerie ſhall be reuerſed by writ of Error, by reaſon of falſe Latine, raſure, enterlyning, miſentring of the Warant of Attorny, or of any proclamation miſentring, or non returne of the Sherife, or by reaſon of any other defect of forme in words, and not in matter of ſubſtance.
Fines executed bind all perſons if Lit. 104.claime be not made within a yeare, therefore it is called a fine, Quia finis finem ſitibus imponaebat. And in a fine vponupon a render, if 7. Ed. 2. 37. Contin. cl…m 7.the Coniſee ſue not execution within the yeare but after the yeare, by a ſcire facias, no ſtrainger need to lay to his claime.
Statutes.
34. Ed. 3. cap. 18. The plea of non claime, of fines from henceforth to beleuied, ſhall not be any barre.
34. H. 7. cap. 24. Euerie fine after the ingroſſing ſhall be proclaimed in the Court, the ſame Terme and the three next, foure ſeuerall daies in euerie Terme, all pleas ceaſing the whileſt. Which proclamations ſo made, the fine ſhall conclude all priuies and ſtrangers, except women couert, perſons within xxj. yeares of age, in priſon, out of the Realme, or if non ſaue memorie (being no parties to the fine.) So they or their heires take their action or lawfull entrie within fiue yeares after thoſe imperfections remoued. Sauing to all perſons and their heires (other than parties) the right claime and intereſt which they hauehave at the time of the fine. So that they purſue it by action or lawfull entrie within fiue yeares next after the proclamations. And ſauing to all other perſons ſuch right, title, claime, and intereſt as firſt ſhall grow, remaine or come to them after the proclamations, by force of any matter before the fine. So they take their right according to the law within 5. yeares next after it grow, &c. And thoſe that bee couert Baron, &c. at the time when it groweth, &c. that they or their heires take their actions or lawfull entrie within fiue yeares after thoſe imperfections remoued.
Sauing alſo to all not parties, nor priuies the exception that none of the parties, nor any to their vſe, had any thing in the lands at the time of the fine.
31. H. 8. cap. 36. All fines leuied by any perſon of xxj. yeares of age of lands entailed before the ſame fine, to himſelfe or his anceſtours in poſſeſſion, reuerſion, remainder or vſe, ſhall immediatly after proclamation made, be a ſufficient bar againſt him and his heires, claiming onelyonly by ſuch entaile, and againſt all other claiming onelyonly to his vſe, or the vſe of any heire of his bodie.
1. Marl. cap. 7. All fines whereupon proclamations be not, or ſhall not bee duely made (by reaſon of the adiournement of any Terme by Writ) ſhall bee as good as if any Terme had beene holden from the beginning to the end, and proclamations therein made according to the ſtatute.
…1. Eliz cap. 2. Proclamations of fines ſhall be onelyonly foure times, viz. once in the Terme wherein the fine is ingroſſed, and once eueryevery of the three Termes next after.
A femecouert ioyning with her huſband Lit. 14….in a fine it bindeth her for euer. Therefore here the Iuſtices muſt examine her to ſee that ſhe do it willingly. For if ſhe ſay 15. E. 4. 1.vponupon her examination, that the husband did impriſon her to leuie the fine, this fine is not to be receiued. A grant by fine of a ſeigniorie, rent charge, rent ſeck, remaynder, or reuerſion, is preſently good. Saue for bringing actions that runne in priuitie betweene the Tenant and him. As an action of Waſte or Coſimili caſu, when the reuertion 48. E. 3. 15.of Tenant for life is granted by fine, and after Tenant for life a lieneth in fee, a Writ of Eſchete or Ward when the Tenants ſeruices are granted by fine, and after the Tenant dyeth without heire, or his heire within age. But in theſe caſes hee may enter for a forfeiture or eſchete, and ſeiſe the Ward: and ſhall alſo be receiued vponupon default of Tenant for life.37. H. 6. 5.