INTRODUCTORY

ESSAY ON ASSURANCES.

I.-FINES.

A FINE, properly styled a fine of lands, in order to distinguish it from other kinds of fines, was a real action, not prosecuted to judgment, but compromised between the parties before judgment by the royal licence for that purpose; which was obtained as a matter of course on application at the proper office and payment of the proper fees. The student should turn to, and carefully peruse, the record of a fine printed in the appendix to the second volume of Blackstone's Commentaries. The action was commenced by a writ, called also the præcipe, which word refers to the word command appearing in the writ. The writ might be any writ whatsoever, by which a real action could be commenced; and by the general practice of later times, the writ employed was a writ of covenant real, that is, a writ purporting to be brought upon a covenant referring to

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lands and containing stipulations by which the lands were bound. As the ground of action was entirely mythical, and the action itself was never intended to be tried upon the merits, which had in fact no existence, the parties, who were proceeding in agreement together, were at liberty to pretend any kind of ground of action that they thought proper; because, as soon as the action had been instituted, its existence supplied a sufficient ground for compromising it upon terms, if the parties were willing to agree to that course. In practice, they feigned that the defendant, properly styled the deforceant, had entered into a covenant real with the plaintiff, properly styled the demandant; and it will be observed that the writ, as set out by Blackstone, directs the sheriff of the county in which the lands are situated, to command the deforceant,-in the example given it is the deforceants,—justly to perform to the demandant the covenant which had been made between them, of so many houses and messuages, and so many acres of land, mentioning how many acres were meadow, and how many were pasture, and going into the like particulars suitable to the case, situated in such or such a parish in the specified county.

The writ, in Blackstone, directs the sheriff to summon the deforceant or deforceants to appear before the king's justices at West

minster, by which was meant the Court of Common Pleas, which Court alone had cognizance of real actions, within a specified time. Upon being served with the writ, the deforceant made appearance thereto within the time; and thereupon the process commenced which was called levying a fine.

The foregoing remarks about the Court in which a fine should be levied, must be taken with some qualification. The proper Court in which to levy the fine, was the Court which

*The fictions by means of which the Court of King's Bench and the Court of Exchequer usurped jurisdiction to entertain personal actions, such as actions of debt, which properly pertained to those Courts no more than real actions did, were not applicable to real actions, and the usurping Courts seem never to have contrived or put forward any fiction by which they could assume jurisdiction to entertain real actions. These actions, therefore, remained, until they were abolished, within the exclusive jurisdiction of the Court of Common Pleas; and by consequence, it was only in that Court that a fine could, under ordinary circumstances, be levied or a recovery suffered. But under certain special circumstances, which need not be gone into now, a fine might be levied in the Court of King's Bench; and it is said that, if a fine was improperly levied there, it was not absolutely void, but only voidable upon proper process instituted for the purpose. It is also to be remembered, as will shortly be further mentioned, that, although the jurisdiction of the Court of Common Pleas was exclusive, so far as the other Courts at Westminster were concerned, yet in the Counties Palatine and some other restricted localities, the jurisdiction pertained to the local Courts.

had jurisdiction to entertain a real action for recovery of the lands intended to be comprised in the fine; and though this Court was, in general, the Court of Common Pleas at Westminster, which is therefore usually said to have had exclusive jurisdiction in real actions, yet in particular places the proper forum was the local Court. But as the levying of fines in a local Court involved an injury to the king's revenue, by the loss of the premier fine and the king's silver, it is at least doubtful whether the right to entertain a real action would alone import the right to take fines of lands; and, in fact, the rights and powers of the several local jurisdictions were confirmed and defined by Acts of Parliament. In the Counties Palatine of Lancaster, Chester, and Durham, the proper Court was the Palatine Court. In Wales, it was the Court of Great Sessions in Wales. the City of Chester, it was the Portmoot Court of that city. In lands of manors in ancient demesne, the proper Court was the Court-baron And sundry local jurisdictions

of the manor.

In

*On ancient demesne, see Chall. R. P. 2nd ed. p. 29. If a fine of such lands were levied in the Court of Common Pleas, the tenure in ancient demesne was destroyed; or rather, suspended until the fine had been reversed by a writ of disceit brought by the lord of the manor. the fine had been so reversed, no fine could by the common law be levied of those lands in the manorial court. By the Fines and Recoveries Act, 3 & 4 Will. 4, c. 74, s. 5,

Until

of inferior importance laid claim to a custom to have fines levied before them; which in some cases was allowed and confirmed by Act of Parliament.

By the Fines and Recoveries Act, 3 & 4 Will. 4, c. 74, s. 5, fines levied before the passing of the Act, are now made valid, notwithstanding any want of jurisdiction in the Court.

But here a distinction (which well illustrates the complexities of the subject) must be pointed out. Fines, as will hereafter be seen, had in practice two principal modes of operation: one by estoppel, and the other under two statutes passed in the reigns of Henry VII. and Henry VIII., called the Statutes of Fines, the provisions of which will be hereafter explained; and to the latter, certain proclamations of the fine, made in open Court, were necessary; and without these proclamations, the fine took effect only by estoppel, and did not have the further effect conferred by the said statutes. And, therefore, in Courts where proclamations of the fine could not be made, the fine could not have the important effects conferred by the statutes; that is, it could neither bar by non

a fine so levied in the manorial court before such reversal is made valid; but (s. 12) without prejudice to any prior dealings with the land on the hypothesis of its invalidity.