Abbildungen der Seite
PDF
EPUB

Petty's Case, 70. A motion was made to stay the passing of a 1 Freem. 78. fine, which was acknowledged by an infant of 18

years old. The Court said, that as the King's silver was paid, it was gone too far ; but they assigned the infant a guardian, who had instructions to bring a writ of error to reverse it.

71. In consequence of the rule of court already stated, by which it is required that the writ of covenant shall be sued out before the concord is acknowledged, it may now be laid down, that a fine is com

pleted when the concord is duly acknowledged. When it 72. Although it must be very material, in many begins to operate.

cases, to ascertain the precise time when a fine begins to operate, yet it is a subject respecting which very little is to be found in the books; but if we reason by analogy from the nature and effect of other judgements, we shall be able to ascertain this point.

The time when a fine is acknowledged is perfectly Lloyd v. immaterial ; for we have already stated a case, in Say & Sele, which it was determined, that a fine began to operate ante, 62.

in Michaelmas term, although it was not acknow

ledged until four months after. Cro.Car. 102. 73. The whole term is considered to many purVide Tit. 14. $ 22.

poses as but one day; and if a judgement be given at any time during the term, it relates to the first day of that term, and is considered in law as having been given on that day. And the first day of term is the essoign day, for the quarto die post is only a day of grace. But if a writ be returnable on the second, or any other return day of the term, the judgement will then relate to that return day; for till the return of the writ, the judgement cannot possibly be given.

74. Now, a fine being considered as a judgement, must, like all other judgements, relate to the first day of the term in which it is recorded, if the writ of covenant whereon it is levied be returnable the first day of term; otherwise it must relate to the return day of the writ of covenant. For in levying a fine, there is no continuance of process to retard the relation, as the licentia concordandi is supposed to be obtained on the return of the writ of covenant, and the concord immediately acknowledged.

75. In support of this proposition I shall transcribe a case reported by Jenkins, of which, I presume, the authority will not be disputed, though the reporter has not mentioned when, and by what court, it was determined.

“A. covenants with B. to levy a fine, Oct. Michaelis Jenk. 250. 1 Car. A. acknowledges a statute to C. 8th October same year. The fine is levied according to the covenant, and the conusance taken the 12th October aforesaid. This conusee shall avoid the said statute

relation to the day of the essoin ; which was before the said 8th day of October.”

76. In a note of Peere Williams, it is said, that if Vol. 3. 170. A. devises land, and levies a fine, and the caption and deed of uses are before the will, but the writ of covenant is returnable after the will, this seems a revocation ; because a fine operates as such from the return of the writ of covenant, and not from the caption. And yet (says the reporter) this is a hard case ; since, by the caption, the party conusor does wall his part, and the rest is only the act of the clerk, or his attorney, without any particular instructions

from the party.

77. These passages, and the conclusions drawn from the rules by which all other jadgements are 2 Burr. 711. construed, seem fully to prove that a fine, whether acknowledged before or after the original writ on Vol. V.

H

which it is levied is sued out, will begin to operate

from the return day of such original writ. Of the Pro- 78. When fines were adopted as a general mode of clamations.

assurance, it became necessary to render the levying of them a matter of the most public notoriety, on account of those whose rights might be barred by not making their claim in due time. For this purpose it was enacted by the stat. 27 Edw. I. c. 1. that the notes of all fines should, in future, be openly read in the Court of Common Pleas, at two certain days in one week; and that, during such reading, all pleas should cease.

79. By the statute 4 Hen. VII. c. 21. § 1. it is enacted, “ That after

" That after engrossing of every fine, it shall be read and proclaimed in open court the same term, and in three terms then next following the same engrossing, in the same court, at four several days in each term ; and in the same time that it is so read,

all pleas to cease." Dyer, 234 a. Since the making of this act, the proclamations are

indorsed on the foot of the fine, and are considered

as inatters of record. Plowd. 371. 80. By the words of the statute 4 Hen. VII. if one

of the three terms immediately subsequent to that in which a fine was levied was adjourned, the proclamations would have been ineffectual, and this defect could not have been supplied in the next term. To remedy which, a statute was made, 1 Mary, c. 7. 82. enacting, “ That all fines whereupon the proclamations should not, by reason of the adjournment of any term by writ, be duly made, should be of as good force, effect, and strength, to all intents and purposes,

as if the term had not been adjourned.” And it has Dyer, 186 a. been determined by all the Judges, that even an ad. 2 Inst. 319.

journment of part of a term was provided for by this act; because it was a favourable law, and to be construed by equity.

81. By the statute 31 Eliz. c. 2. it is enacted, that all fines shall be proclaimed only four times; that is to say, once in the term wherein they are engrossed, and once in every of the three terms holden next after the same engrossing: and that every fine proclaimed as aforesaid, shall be of as great force and effect in law, to all intents and purposes, as if the same had been 16 times proclaimed.

82. The statute 4 Hen. VII. directs that the pro- Fish v. clamations shall be made, not only during term, but

Brocket,

Plowd. 265. also in court, at the time when the Judges are sit- Dyer, 18] b. ting ; so that if the proclamations appear to have been made out of tern, or on a Sunday, or other festival, on which the Court of Common Pleas does not sit, the proclamations will be all void. And although the proclamations should be made on days which were dies juridici, yet if the contrary appear on record, the proclamations will be void ; as no averment can be admitted against the record. 83. If the proclamations on a fine be certified in a Ragg v.

Bowley, certiorari by the custos brevium, and it appear by the 3 Leon: 106. certificate that two of the proclamations were made in one day, a new certiorari may be directed to the chirographer; and if he certifies that the proclamations were well and duly made, the Court will direct the proclamations in the office of the custos brevium to be amended, according to the proclamations in the chirographer's office; because the chirographer makes the proclamations, and is the principal officer as to them; and the custos brevium has only an abstract of them.

84. An error in the proclamations would not Dyer, 216 a. destroy the validity of a fine, for it would still enure 1 Bulst. 206.

as a fine at common law; because the fine taken separately is one perfect matter of record, before the proclamations are made, which binds the parties and the land ; and the proclamations are distinct and different from the fine, they and the fine being several matters of record : for which reason error in the one is not error in the other. But if the fine is erroneous, the proclamations are then void, because the fine is

the principal. Bull. N. P. 85. When a fine with proclamations is given in 229.

evidence, the proclamations must be examined by the roll, because the chirographer is not appointed by the statute to copy the proclamations, as he is to copy

the foot of the fine. Wakefield v. 86. Since the statute 4 Hen. VII. fines have been Hodgson,

distinguished into fines at common law, and fines Cro. Eliz. 692. with proclamations. It is in the election of every

person who levies a fine to have it proclaimed in the

usual manner; and if the cognizee dies before the Dyer, 254 a. proclamations are made, his heirs may cause the fine

to be proclaimed.

« ZurückWeiter »