Of the Writ of Curia claudenda. Of curia clau- A WRIT of curia claudenda lies for the tenant of the freehold denda. against another tenant of the freehold of land adjoining, who will not enclose his land as he ought (a), and it lies for not enclosing land in an open field as well as for not enclosing a curtilage, garden, &c. (b) A curia claudenda does not lie for any one who has not a freehold (c), nor for a commoner (d), nor against any one whose land does not adjoin the plaintiffs. (e) The writ may be brought either in the county court or in the Common Pleas. (f) The process is summons, attachment, and distress. (g) If the defendant appears, the plaintiff in his count must shew the certainty of the land, and the adjoining land of the defendant, and must allege, that the defendant is bound to enclose by prescription. () This action is now superseded by the action on the case. (i) (a) F. N. B. 127 H. Com. Dig. Droit, (M. 1). Booth, 242. Rast. Ent. 141. Vin. Ab. Fences, (D). (b) Moor, 32. (c) F. N. B. 128 B, who has not a fee, Starr v. Rooksby, 1 Salk. 336. (d) F. N. B. 128 C. (ƒ) F. N. B. 127 G, H. (h) F. N. B. 128 E. (i) Starr v. Rooksby, 1 Salk. 335. Of the Writs of Per Quæ servitia, &c. Quem redditum reddit. Quid juris clamat. BEFORE the statutes 4 and 5 Anne, c. 16, and 11 Geo. 2, c. 19, Per quæ servitia. which have rendered attornment both unnecessary and inoperative (a), there were several writs to compel attornment in certain cases. These were the writs of per quæ servitia, quem redditum reddit, and quid juris clamat. The first lay for the conusee in a fine, to whom a lord had granted a seignory (b); the second for the grantee by fine of a rent, to compel the tenant of the land, out of which the rent issues, to attorn (e), and the third for the grantee by fine of a reversion or remainder, to enforce the attornment of the tenant for life. (d) Even before the statutes which have taken away attornment, these writs were obsolete in cases where fines were levied to uses, when it was held, that the conusees might bring actions, and distrain without attornment. (e) (a) See Mr. Butler's Note to Co. Litt. 309, a. (1). (b) Prest. Shep. Touch. 255. Co. Litt. 252, a. Booth, 249. Com. Dig. Fine, (F). (c) Shep. Touch. 285. (d) Shep. Tonch. 255. Co. Litt. 320, a, b. F. N. B. 147 A. Vin. Ab. Quid juris clamat. Com. Dig. Fine, (F). (e) Sir Moyle Finche's Case, 6 Rep. 68, a. Co. Litt. 309, b. Booth, 250. L Modern prac.. tice. Of Summons. THE process in real actions, to compel the tenant or defendant to appear, is of various kinds, according to the nature of the particular action. It is either, 1. Summons and grand cape, as generally in every præcipe quod reddat; 2.Summons, attachment, and distress infinite, as generally in every præcipe quod faciat, or action in the realty; 3. Summons and re-summons, as in an assise of mortd'ancestor, juris utrum, and darrein presentment; or, 4. Attachment, as in an assise of novel disseisin and nuisance. (a) The first process to bring the tenant or defendant into court in all real actions, with one or two exceptions, as in assise of novel disseisin, and writ of deceit, is a summons, commanding the sheriff to summon the tenant to appear in court, according to the requisition of the writ. This command is contained in the original writ, and no separate writ of summons issues to the sheriff. (b) It is said by Booth, that when real actions were in ordinary use, the summoners were persons who were actually employed by the sheriff for that purpose, and whose names were returned; whereas, generally, in his time, no actual summons was really given, but the names of the summoners were returned on the writ, as a matter of course, by the sheriff, but he adds, that if the tenant should come in and wage his law of non-summons, such summons of course would not support the writ. (c) It is likewise stated by Mr. Serjeant Williams, that the summons ought regularly to be upon the land, but that in truth no actual summons is made in any real action, though the names of summoners are of course returned by the sheriff upon the writ; but, he observes, that unless the summons be served fifteen days before the return day of the writ, the tenant may wage his law of non-summons. (d) The practice, as stated above, is open to great objection, for, if the summons be denied, the sheriff must (a) Finch's Law, 343, 4, 5. Booth, 7. Com. Dig. Process, and see Vin. Ab. Summons. (b) Com. Dig. Process, (D1). Booth, 4. Gilb. Hist. C. P. 10. (d) Notes to 2 Saund. 45 c. prove it (a), and, for that purpose, ought to be prepared with the testimony of two persons at least, who have summoned the tenant. (b) There are several modes of taking advantage of a non-summons at the present day. The tenant, though such a proceeding has been long disused, may, if he pleases, wage his law of non-summons, and, if he succeeds, the writ will abate (c); or, as it seems, the courts would set aside a judgment by default obtained under such circumstances, on an affidavit of the fact of non-summons (d); or the tenant may have a writ of deceit, and recover the land (e); or an action on the case against the sheriff for his false return. (f) The law will not suffer the tenant to lose his lands, unless he has received legal and formal notice of the demandant's claim. and return. At common law there must be fifteen days at least between Fifteen days bethe summons and the day on which the tenant is to appear and tween summons answer; and the statute of articuli super chartas, 18 Ed. 1, c. 15, which directs, that in summons and attachment in pleas of land, the summons and attachment shall contain the term of fifteen days, is only in affirmance of the common law. (g) Fif teen days, according to Sir Edward Coke, were accounted a reasonable time, because a dieta or day's journey being twenty miles, that space of time was sufficient to enable the person summoned to make his appearance in court on the day given, in whatever part of England he might reside. () The summons must be served fifteen days before the return day, and not merely fifteen days before the quarto die post. (i) Upon the receipt of the writ, the sheriff must make his war- Sheriff's warrant to his bailiffs, who ought to be two in number at least, and rant. liberi et legales homines, so that they may give evidence of the fact of the summons, if it be denied. () The due service of the summons must be proved by the summoners, and, when a trial is by witnesses, the affirmative must be proved by two or three witnesses. (1) The warrant directs the bailiffs to command the tenant to render (m) the land, as in the writ, and, unless he shall (a) Com. Dig. Process, (D 3). (b) See post. (c) See post. (d) Searle v. Long, 1 Mod. 218. (e) See ante, p. 136. (ƒ) Dalt. Sh. 100, b. Jenk. Cent. 27. (g) Bract. 334. Fleta, l. 6, c. 6, s. 11. 2 Inst. 567. (k) 2 Inst. 567. Booth, 24. 2 Rol. Ab. Booth, 4. 1 (i) Br. Ab. Leygager, 57. (m) By this is meant a render in Upon the land. Proclamation. do so, to summon him to appear at the return of the writ, and it further directs the bailiffs, after summons made, to make procla mation according to the form of the statute. (a) On receiving the warrant, the bailiffs must prepare a summons, which pursues the form of the warrant, and must serve it on the tenant of the land. (b) It is said, that in all actions for the recovery of land, the summons ought to be in terrâ petitâ (c), but, if the tenant appear, it is immaterial in what land he was summoned. (d) Summons upon the land in demand seems to be sufficient, whether the tenant or any one for him be there or not (e), and a prayee in aid may be summoned in the land demanded, although it is not his freehold. (f) In quare impedit it is said, the summons may be either at the church-door, or to the person of the defendant. (g) Where the lands lie in several towns in one county, it seems that summons in one town is sufficient. (h) The summons ought to be served before sun-set. (¿) To avoid all objections, it may be prudent, in summoning the tenant in a real action, to serve him personally with the summons on the land demanded, or, if he be not met with upon the land, to summon him personally, and also to make summons upon the land, by erecting a stick or wand, and affixing to it a copy of the summons (k), and it will be proper to read over the summons to the tenant, on serving him with the copy, for the summoners ought properly to name the demandant, the land in demand, and the day of the return. (7) For the purpose of avoiding secret summonses, and in order to give convenient notice to the tenants of the lands, it is enacted by the 31 Eliz. c. 3, s. 2, that after every summons upon the land in any real action, fourteen days at the least before the day of the return thereof, proclamations of the summons shall be made, on a Sunday immediately after divine service and sermon, if any (a) See the form in 2 Saund. 43, a, note. (b) See the form in 2 Saund. 43, a, note. (c) Com. Dig. Process, (D. 3). Vin. (f) Br. Ab. Summons in terrâ, 16. 2 Rol. Ab. 487, l. 17. (g) 1 Brownl. 158. Booth, 226, but see 2 Rol. Ab. 486, l. 54. (h) Allen v. Walter, Hob. 133. (1) Dalt. Sheriff, 61, b. and see the directions given in 3 Chitty's Pl. 624, 5. |