tenire facias in nature of a summons. (a) The judgment is to recover the land and the mesne issues. (b) Of deceit. mons. It is probable, that the courts would now set aside the judg- For non-summent by default on motion, upon affidavit that the tenant had never been summoned (c), and thus the trouble and expense of a writ of deceit, which could scarcely be carried through at the present day, would be avoided. The tenant, who has lost, may likewise, if he pleases, bring another action to recover the land. If he be tenant in fee, a writ of right, or, if he be only tenant for life, a quod ei deforceat under the statute of Westminster 2. (d) A writ of deceit also lies where land, which is held in ancient For impleading demesne, is recovered in the king's court, for, as the judgment lands in ancient in the courts at Westminster is evidence to shew that the land demesne in the is frank fee, and not impleadable in the court of ancient de- king's court. mesne, the lord in ancient demesne may have this writ, to avoid the judgment so given in the superior court. Thus, if a man levies a fine in the Common Pleas, of lands which are held in ancient demesne, a writ of deceit lies for the lord (e), and so a common recovery suffered in the Common Pleas may be avoided (ƒ), so also a recovery in assise. (g) This writ is an original writ (h), and should, it is said, be brought in the court in which the deceit has been done. (i) Though there be lands held of the manor in ancient demesne, yet the demesne lands of the manor and the manor itself are impleadable at common law (k), and copyholds of a manor are not ancient demesne, for they are part of the demesnes. () It is said, that a judgment given in the king's court is sufficient without execution to render the lands frank fee (m), and, that a fine sur done grant & render, which is executory as to the render, will have the same effect before execution. (n) Deceit lies after five years passed from the time of a fine levied, because, as it is said, the fine is coram non judice, and merely void, and so it lies though the conusor be dead. (0) (a) Booth, 252. (b) See post, in “Damages.” (c) Searle v. Long, 1 Mod. 248. (d) See ante, p. 132. (e) 1 Rol. Ab. 326, l. 1. F. N. B. 9, A. 1 Lutw. 712. Smith v. Frampton, 3 Lev. 405. (f) R. v. Hadlow, 2 W. Bl. 1170. (g) 1 Rol. Ab. 324, 1. 21. (A) 1 Lutw. 712. Zouch v. Thomp son, 3 Lev. 419. (i) O. N. B. 81, a. (k) Baker v. Wich, 1 Salk, 56. (m) Hale's note, F. N. B. 13 C, (a). (0) Zouch v. Thompson, 1 Salk. 210, Of deceit. If lands held of a manor in ancient demesne have been twice For impleading impleaded in the king's court, as when two fines at different lands in ancient times have been levied of the same lands, the last fine cannot be demesne in the reversed by a writ of deceit, while the first stands in force, for, king's court. at the time when it was levied, the lands were in fact frank fee; but the levying of the last fine will not prevent the first fine from being reversed, after which the last may be reversed also. (a) The king, when he is lord in ancient demesne, may have this writ (b) and it is sufficient if the plaintiff be dominus pro tempore (c), as tenant for years. (d) For whom it lies. Against whom. It is said, that where a fine is levied of lands in ancient demesne, by which remainders in tail are limited, it is sufficient to bring the writ of deceit against the tenant of the land without joining those in remainder (e), and so it is said to be sufficient to bring the action against the conusor alone, and to make the terre-tenants parties by sci. fa. (ƒ), but the best mode of proceeding appears to be to make all the parties to the fine or recovery, and the terre-tenants also, defendants. In an action of deceit brought to reverse a recovery, where the vouchee, to whose use the recovery was suffered, was alone made defendant, the court held, that the demandant and tenant in the recovery ought to have been joined in the action. (g) If the conusor and conusee of a fine be both dead, the writ may be brought against their heirs. (h) If a fine be levied of lands, part of which are ancient demesne, and part frank fee, and deceit is brought, the fine may be reversed as to that part only of the lands which are ancient demesne, and shall not be taken off the file, but shall be marked, in order to signify that it is cancelled as to that part. (i) The effect of a judgment in a writ of deceit to reverse a fine has been much disputed. In the precedent in Rastal, the judgment runs, (k)" that the plaintiff have his court again, and, that the tenements be again impleadable therein, and, that the plain (a) Hale's note, F. N. B. 97 D. (b.) (c) Zouch v. Thompson, 1 Salk. 210. (e) Thel. Dig. l. 5, c. 17, s. 2, as to (ƒ) Hale's note, F. N. B. 97 D. (c.) and see 1 Leon, 290. Cary v. Dancy, Cro. Eliz. 471. (g) R. v. Hadlow, 2 Bl. 1170. (h) Zouch v. Thompson, 1 Salk. 210. (i) Keilw. 43. 1 Leon. 290. 1 Rol. Ab. 775, 1 43. W. Jones, 374. Cruise on Fines, 299. F. N. B. 98 P. (k) Rast. Ent. 100, b. tiff be restored to all that he has lost," but there is a curia advi- Of deceit. sari vult entered as to annulling the recovery. It is said in many For impleading books, that by the judgment in deceit, the fine or recovery is lands in ancient absolutely annihilated, and that the conusor, &c. shall be re- demesne in the stored to the title and possession which passed by the con- king's court. veyance. (a) The reasons given are, that a fine cannot be reversed as to one person, and stand good as to another (b), and also, that the fine is levied coram non judice (c), and therefore, the cognizance, although upon record, is no estoppel. On the other hand, it is said, that the fine ought not to be wholly set aside against the conusor's own acknowledgment on record, especially as the sole object of the writ of deceit is to render the lands again impleadable in the court of ancient demesne, and to restore the lord to his privileges. (d) If the conusor, however, after the fine levied, releases to the conusee, or confirms his estate, the latter shall retain the land notwithstanding the fine is avoided. (e) The process in deceit to reverse a recovery of ancient de- Process, &c. mesne lands in the king's courts is attachment and distress; the defendant usually confesses the action, and the judgment is, that the plaintiff have his court again, and that the tenements be impleaded in the same court, and brought back within the jurisdiction of the same court, notwithstanding the judgment had in the king's court, that the judgment had in the king's court be annulled and held void, and that the plaintiff be restored to all things which he has lost by reason of that judgment, and the defendants in mercy, &c. The damages are usually remitted. charta. Of the Writ of Warrantia Charta. Of warrantia Ą WARrantia chartæ is an action brought to take advantage of a warranty in lieu of voucher, and by judgment in it the plaintiff may bind the lands of the warrantor, and have damages awarded to him. A warrantia charta may be brought either after the plaintiff has been impleaded for the lands warranted, or before, quia timet. (a) It is grounded either upon an express warranty in a deed, as where one man enfeoffs another by deed, and binds himself and his heirs to warranty (b), or, where a man releases or confirms with warranty (c), or, upon an implied warranty in a deed, as upon the word exchange in a deed of exchange. (d) It may also be grounded upon a warranty which is not created by deed, as upon a lease for life without deed, rendering rent, where the reversion and rent create a warranty. (e) In many cases therefore, voucher and warrantia chartæ are concurrent remedies, but, there are others in which warrantia chartæ alone can be brought. Thus, when a man is impleaded in any action in which he cannot vouch, he may still bring his warrantia chartæ, if he has a warranty, (f) as in quare impedit, (g) assise (h), or writ of entry in the degrees, where the warrantor is out of the degrees. (i) A warrantia chartæ may be brought before the plaintiff is impleaded in another action for the land, and, if he recovers, this is called a recovery pro loco et tempore, upon which no execution can be awarded until some damage actually accrues (k); and it may also be brought pending the other action, and, according to Hobart, C. J., even after voucher in that action, and before execution sued. (1) If the plaintiff, having brought his warrantia (a) Booth, 240. Roll v. Osborn, Hob. 21, 22; the whole law of warrantia chartæ may be found in this case. (b) F. N. B. 134 D. (c) 2 Rol. Ab. 809, 1. 28, 34. Hob. 21. (d) F. N. B. 135 B. (e) F. N. B. 134 G. Co. Litt. 384, b. (ƒ) F. N. B. 134 D. Hob. 22. (i) Roll v. Osborn, Hob. 22. charta. chartæ quià timet, have judgment to recover his warranty, (where- Of warrantia by the lands of the warrantor are bound from the purchase of the warrantia chartæ), and be afterwards impleaded for these lands, he ought to vouch the warrantor, in which case he will recover according to the value of the lands which the warrantor had at the time of the warrantia chartæ brought (a), or, if impleaded in an action in which he cannot vouch, as in assise, he ought, it seems, to give notice to his warrantor, and inquire what defence he shall make. (b) If the party who has the warranty, suffers himself to be impleaded without either vouching or bringing his writ of warrantia charta, and loses, and execution is sued, he seems to have lost all remedy, for warrantia charta does not lie unless the plaintiff was tenant the day of the writ purchased. (c) No one, it is said, can have warrantia chart, but the tenant in demesne (d), but this rule must be taken with some qualification. (e) If the tenant is in of another estate than that to which the warranty is annexed, this writ does not lie. (f) If a man has several warranties from several persons, he may have several writs of warrantia chartæ against them. (g) Though the writ supposes the plaintiff to hold of the defendant, yet this is not material (1⁄2), and so with regard to the words unde chartam habet, notwithstanding which, the plaintiff might have counted and bound the defendant by homage ancestral. (1) The process in warrantia chartæ is summons, attachment, and distress infinite, and, if nihil be returned, a capias. (k) The venue is transitory. (1) (a) F. N. B. 134 K. Br. Ab. War. Car. 13. (6) F. N. B. 135 A. Pleader, (3 N. 5). (c) 2 Rol. Ab. 810, l. 7. (d) 2 Rol. Ab. 810, l. 5. Com. Dig. (e) Roll v. Osborn, Hob. 21. (ƒ) F. N. B. 135 G. (g) F. N. B. 135 I. (h) F. N. B. 134 E. (i) Br. Ab. Gen. Brief, 8. F. N. B. 134 F. (k) Booth, 241. Com. Dig. Pleader, (3 N. 2). (1) F. N. B. 135 F. Fitz. Ab. Gar. de Char. 14. |