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tation which Madox has prefixed to his collection of Ancient Charters, and the few observations which Dugdale has made on this subject in his Origines Juridiciales, nothing has been collected, either by our lawyers or antiquaries.
3. Glanville describes a fine to be an accommo- Lib. 8. c. 1. dation of a placitum, or suit actually commenced. Contingit autem multoties loquelas motas in curia domini regis per amicabilem compositionem et finalem concor. diam terminari, sed ex consensu et licentia domini regis, vel ejus justiciariorum, undecunque fuerit placitum, sive de terra, sive de alia re. It even appears, that so early as the reign of Henry III. there was a particular placitum, adapted to the purpose of levying a fine. Thus Madox has transcribed a fine levied in 27 Form. Angl. Hen. III., between Ranulph, abbot of Ramsey, and Dissert, g117. Mathew De Layham:-Unde placitum finis facti summonitum fuit inter eos, in eadem curia.
4. Madox seems however to have thought that a fine was not originally an accommodation of a suit, in the strict sense of the word; because in some of the most ancient fines extant, no original writ appears to have been sued out, nor any process used, for the purpose of bringing the parties before the court; but they themselves having accommodated the matters in dispute, and drawn up an agreement in writing called a chirographum, which signified a deed of two parts, Tit. 32.c. I. written on the same sheet of paper or parchment; they then appeared in a court of justice, where they acknowledged it as their agreement, and mutually set their seals to it; and upon payment of a certain fine, it was enrolled among the records of the court, or else the parties entered into an agreement in court, where it was immediately reduced into the form of a
21 Edw. 4.
chirographum, and recorded, and a copy delivered to
each of the parties. Year Book, 5. This idea is confirmed by the opinion of the
Judges in the Abbot of Merton's case, who said that fo. 4. no. 8. fo. 60. no.32. a fine was nothing more than a covenant between the
parties, recorded by the Justices; and if it were before Justices of record, the parties being present, it was sufficient, for the writ was sued out only to make the parties appear; and if they were present, and would appear gratis, it was unnecessary to sue out a writ, but they might make a final covenant by record; from whence it may be contended, that fines were at first exactly similar to the agreements which, in the time of the Anglo-Saxons, were entered into in the county courts.
But a fine differs from those agreements in two very material circumstances; first, nothing appears to have been paid for permission to enter into such an agreement; and secondly, it was not enrolled in the records of the court. It may also be observed, that this mode of levying a fine, without an original writ, agrees exactly with the transactio of the civil law, which was not always an accommodation of a suit actually commenced; but an agreement relating
to some doubtful matter, which must otherwise have Vinn. Tract. become the subject of litigation. Objectum sive made Transact.
teria transactionis sunt res dubiæ vel litigiosæ, de quibus scilicet vel nunc lis fit, vel in futurum esse possit, aut metuatur ; nam litem motam esse, nihil necesse est.
6. The observation of the Judges in the Abbot of Merton's case may also be accounted for on another principle: an original writ was not absolutely necessary in Bracton's time to the commencement of a suit, for if the defendant would appear in court without a writ, the Judges might notwithstanding proceed in the
c. 4. n. 1.
suit. Tot erunt formula brevium quot sunt genera Bract. 413 b. actionum, quia non potest quis şine brevi agere, cum non teneatur alius sine brevi respondere, nisi gratis voluerit, et ex hoc ei non injuriatur, cum scienti et volenti non fit injuria.
7. The law was however soon altered in this respect, for when Fleta wrote, an original writ was become absolutely necessary. Thus, in speaking of the Court of Common Pleas, that author says, Habet Lib. 2. c. 34. etiam curiam suam et justiciarios suos residentes, qui omnes recordum habent in his quæ coram eis fuerint placitata, et qui potestatem habent de omnibus placitis et actionibus, realibus, et personalibus, et mirtis ; dum tamen warrantum per breve regis habuerint cognoscendi, nam sine warranto, jurisdictionem non habent, neque cohertionem. 8. The present manner of levying fines was settled Present
Manner. by the statute De modo levandi fines, 18 Edw. I., by which it was enacted, that no fine should thenceforth be levied, unless upon a suit actually commenced, in the usual way; so that a fine then became an accommodation of a suit in the most strict and technical sense ; and since the passing of that act, no material alteration has been made in the manner of levying fines.
9. It appears from Glanville, lib. 11. c. 1. that the suitors in the curia regis were at all times allowed to prosecute their causes by attorney, who was called responsalis ad lucrandum vel perdendum ; and a plea might be thus commenced and determined, whether by judgement or by final concord, as effectually as by the principal himself. Per procuratorem itaque talem potest placitum illud deduci in curia, et terminari, sive per judicium, sive finalem concordiam, adeo plenè et firmiter ut per eum qui alium loco suo inde posuit..
vol. 1. 22.
10. In consequence of this doctrine, fines were
frequently levied by attorney, and in the Formulare No.362.369. 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, fe. Rot. Parl. This practice was productive of several frauds, and 2 Inst. 512. 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.
11. A fine now consists of five parts. 1. The original writ. 2. The licentia concordandi. 3. The concord. 4. The note. 5. The foot, chirograph, or
indenture. Original 12. When the parties have agreed to levy a fine, Writ.
the person to whom the land is to be conveyed commences an action or suit at law against the vendor, by suing out a writ of covenant against him ; the foundation of which is a supposed agreement or covenant, that the vendor shall convey the land to the purchaser, on the breach of which the action is brought ; and as no suit can be commenced in any of the courts of common law without an original writ, and a fine being a friendly composition of a suit actually commenced, it follows that no fine can be levied without an original writ ; and the statute De modo levandi fines expressly says, “ that the order of the common law will not suffer a fine to be levied in the
King's Court without an original.” If however the Co. Read.10. Judges permit a fine to be levied without an original 2 Inst. 513. writ, it is not absolutely void, but only voidable.
13. A fine may be levied on every writ by which 5 Rep. 39 a. lands may be demanded, charged, or bound, or which Salk. 340,
Holt, 322. any sort concerns land ; such as a writ of mesne, warrantia chartæ, de consuetudinibus et servitiis, &c. A fine may also be levied of an advowson, in a writ of right of advowson, of which Madox has given an Form. Angl. instance of great antiquity. But a fine cannot be Diss. 15. levied on an original in a personal action, 14. The writ on which fines are now usually levied Booth Real
Act. 247. 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. The form of the writ is thus-Præcipe A. quod teneat ß. conventionem Fitz. N. B. inter eos factam de manerio, fc, et nisi, fc. And 146. 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,
15. Fifteen days must be given between the teste and the return of a writ of covenant; and the teste must not be on a Sunday, or any day that is not dies juridicus.
16. In suing out a writ of covenant, there is a fine 2 Inst. 511. due to the King, called the primer fine ; for in every
Booth, 247. real action for lands and tenements, above the yearly value of five marks, there is due a fine of 6s. 8d. for every five marks of the yearly value of the land, upon the original in the Hanaper office.
17. Where the sheriff of the county in which the Done vi lands lie is a party to the fine, the writ ought to be
Cro.Car.416. directed to the coroner ; for though the sheriff is in W. Jones,
373. general the proper officer to execute all writs, yet where the writ is brought against himself, it is the practice, in order to prevent partiality, to direct the writ to the coroner, with this clause-Quia prædictus A. B. est vicecomes comitatus D. fiat executio brevis