Abbildungen der Seite
PDF
EPUB

prædict. per coronatorem ; ita quod vicecomes non se

intromittat. Co. Read. 10.

18. If an original writ be countermanded by a 1 lust. 352 b.

retraxit, a fine cannot afterwards be levied on it. Bro. Ab. tit. Thus, in an assise, the plaintiff appeared and made a Fine, pl. 82. retraxit ; afterwards the Judges recorded an agree

ment between the parties, in the nature of a fine ; and; by the better opinion, it was void, et coram non judice ; because when the agreement was made, there was no suit depending, the writ being determined by the retraxit.

19. Formerly, if the King had died after the purchase of the original writ, the parties could not proceed to levy a fine on it, because it was abated. But now it is otherwise ; for by the statute 1 Ann. c. 8. § 5. no original writ, process, or proceedings whatsoever, shall abate by the death of any King or Queen.

20. As the parties are not supposed to appear before the return day of the writ of covenant, it follows that no agreement can take place between them until that period; and, therefore, if any of the parties die before the return day of the writ of covenant, the

fine will be void. Wright v. 21. A writ of error was brought to reverse a fine Wickham,

levied by husband and wife ; and the error assigned Cro. Eliz. 468. was, that the writ of covenant upon which the fine

was levied bore teste the 10th of August, 12 Eliz., and was returnable in Michaelmas term of the same year, which was the 27th of October. The fine was acknowledged before commissioners, and the wife died on the 17th of October, which was before the return of the writ of covenant. The fine was reversed.

The same point was determined in the cases of Price v. Davies, Comb. 57–71; Clements v. Lang

harne, 2 Lord Raym. 872; Watts v. Birkett, Barnes,
220; Wils. R. Part II. 115.
22. The second part of a fine is the licentia concor- Licentia

Concordandi, dandi ; for as soon as the action is brought, the de- 5 Rep. 39 a. fendant, knowing himself to be wrong, is supposed to make overtures of accommodation to the plaintiff, who accepts them; but having given pledges to prosecute his suit, applies to the court, upon the return of the writ of covenant, for leave to make the matter up; which is readily granted, on payment of another fine. 23. This fine is called the King's silver, and is paid King's Silver.

2 Inst. 511. on obtaining the licentia concordandi ; because the King, by such composition, loses the fine, amerciaments, and other advantages that would have accrued to him upon the judgement or nonsuit; which, in ancient times, formed no inconsiderable part of the royal revenue.

24. The King's silver, which is sometimes called the post fine, with respect to the primer fine, due on the original writ, is as much as the primer fine, and half as much more. It was entered on the writ of covenant in the following manner-Robertus Drury Tey's Case, dat dominæ Reginæ, sept. lib.

5 Rep. 39 a. licentia concordandi

pro cum Thoma Tey arm. et Eleonora utore ejus de placito conventionis de maneriis de, &c. &c. et håbet chirographum per pacem admissum coram Jacobo Dyer, &c. And such entry ought to contain, 1st, the sum given for licence to compound ; 2d, the party who pays it, that is, the person in whom the fee is to be vested; 3d, the plea, and between whom; and, 4th, the land for which the fine is paid.

25. If any of the parties die before the entry of the King's silver, the fine is in general void; because the

[ocr errors]

King's_silver not being due until the return of the writ of covenant, and being paid for permission to accommodate the suit, the agreement of the parties cannot be considered as lawful until it is entered ; consequently if the demandant or tenant dies before that is done, the fine will have no effect; being simi. lar tó a judgement given in an adversary suit, after

the death of one of the litigating parties. Farmer's 26. A man and his wife acknowledged a fine before Case,

commissioners, the 26th of March 1621, and the wife Hob. 330. Dyer, 220 b. died on the 27th of the same month. The 28th, composition was made in the Alienation office

upon writ of covenant, made returnable in Hilary term before, and the King's silver was entered in the office of the King's silver as of the same Hilary term, and so the fine was passed and engrossed. The heir at law of the wife moved in the Easter term following against this fine; but upon debate the Court resolved

that the fine must stand. Anon.

27. A fine was acknowledged by a man and his wife 2 Vent. 47.

on the 27th of December 1689, but by reason of King James's abdication, and his carrying away the great seal, there followed a stay of proceedings at law, and the woman died on the 22d of February. The King's silver was paid as upon a writ of covenant in King James's time, though no writ was then sued out. Afterwards a writ of covenant was purchased, returnable in Michaelmas term preceding, sealed with the seal of King William and Queen Mary, and the fine was engrossed as of Michaelmas term. It was moved that this fine should be vacated; but the Court, after the cause had been twice argued, gave their opinion seriatim that the fine should stand, as the entering of the King's silver after the death of

the parties could not then be examined into, the fine being engrossed and completed as a fine of Michael- Ball x. Cock,

3 Mod. 140. mas term. 28. A fine was acknowledged before commissioners Barber v.

Nunn, on the 13th of May 1754. The writ of covenant Barnes, 218. was tested the first day of Easter term in five weeks (19th May). It was compounded, and the pre-fine paid between the 17th and 20th of May, and after passing the return, warrant of attorney, and custos brevium office, was brought to the King's silver office on the 11th of June, and the clerk then entered the King's silver or post-fine in his book, and on the writ of covenant. Mary Nunn the cognizor died on the 27th of May. A caveat to prevent the completing of this fine was brought to the King's silver office the 13th of June, before the record was made up in form, , on behalf of John Nunn, eldest son and heir of the cognizor. A rule to show cause why that caveat should not be withdrawn, was made absolute, and the Court utterly exploded the notion which prevailed, undoubtedly by mistake, in the case of Harneis v. Mickletwaite, that the King's silver was the pre-fine, Barnes, 214. or fine for licence to alienate, whereas the King's silver is the post-fine, or fine given pro licentia concordandi. The return of the writ of covenant was agreed to have been in the lifetime of Mary Nunn, the cognizor; and from that time the Crown had a right to the post-fine, which was entered at the King's silver office before any caveat was entered against it. The making up the record in form is a ministerial act, not necessary to be done previous to the caveat, as the entry of the clerk of the King's silver was sufficient.

29. When a year and a day has elapsed from the Cotton v. date of the caption, or acknowledgement of a fine, Barnes, 215.

without entering the King's silver, an affidavit must be made that all those who depart with any interest by the fine are still living, otherwise the King's silver

will not be received. And if a year elapses before Gregory v. a fine is carried to the King's silver office, an Croucher, Barnes, 215. affidavit must be made that the parties were alive

when the King's silver was paid.

30. By a rule of the Court of Common Pleas, made in Easter term, 9 Anne, it is ordered, “That no fine whatsoever, taken and acknowledged before the Chief Justice, or any judge of assize, or serjeant at law, if the date of the caption of such fine shall appear to have been rased, shall for the future

pass the Queen's silver office, and the Queen's silver of such fine be recorded; by the said clerk of the Queen's silver, before there be an order under the hand of the said Chief Justice, or some other justice of this court, for his passing and entering such fine, first had and obtained.”

31. Formerly the post-fine or King's silver was paid at the King's silver office; but by the statute 32 Geo. II. c. 14. it is enacted, § 1. “ That on every writ of covenant which shall be sued out for passing of fines in the Common Pleas at Westminster, the officer whose duty it is to set and indorse the prefine payable thereon, shall, at the same time, set the usual post-fine, and indorse the same on the back of the said writ, together with his name or mark of office, in like manner as the same are now indorsed at the King's silver office; which post-fine shall be forthwith paid to the receiver of the prefines at the Alienation Office, with 4d. as his fee for receiving the same, instead of his fee of 4d. charged on lands and hereditaments, and payable to sheriffs, bailiffs, and others, on discharging the

« ZurückWeiter »