Title: | Fine of Court, an interesting example from Ewyas Lacy |
Date: | 1829 |
Some speculation
by George Charnock
Before 1833 a legal device sometimes used to establish the title to properties was that of a ‘Fine of Court’, The ‘Fine’ received its name from the Latin words, finalis concordia , a compromise that brought an end to the court action.[1] The court[2] case was based upon a fictitious suit brought by an intended plaintiff against an intended defendant, as a result of a prior agreement between the two, and with the court's permission, the action was then compromised, by the defendant agreeing upon terms with the claimant and then abandoning his defence[3] . Thereupon the whole transaction was enrolled of record, with a document known in later times as the foot or chirograph[4] or indenture of the fine being drawn up. Since the fine was enrolled, incontestable evidence of the transaction was thus afforded. The procedure was abolished by an Act of 1833 probably because it had grown into disrepute since by these means a party could effectively write their own ‘Title’ to a property.
We find this process being used in 1829 by Land Agents and Solicitors acting on behalf of the Marquess of Abergavenny. Documents regarding the case are to be found on this site, click here to see. This set of documents show that a plaintiff, Thomas Penry, prepared a legal case against defendants William Gwillim and James Parry for hearing at the King’s Court of Hereford in 1829. The Plaintiff openly acknowledges that he is a lease holder of the Marquess. The documents are extremely detailed and include an investigation by and the opinion of a London Barrister[5] , the survey and drawing up of supporting plans by a professional Surveyor, the taking of prepared statements[6] by a number of local ‘witnesses’, together with the involvement of solicitors. A lot of ‘history’ is included and the cost of the whole proceedings must have been very expensive. The nominal plaintiff and defendant were local small time players and the whole proceedings and costs must have been far beyond their means. There is little doubt that the whole case was being orchestrated by the agents acting on behalf of the Marquess. The history included in the case documents is of particular interest to later day historians but must be handled with care since it was very selective in its nature and written for a purpose other than historical record.
The question that needs to be examined is - why did the agents of the Marquess consider it necessary to embark on such a case? The value of the actual property disputed was very small and insignificant in comparison to the effort and cost involved. A possible reason is that they sought to associate the authority of the Court Baron, which they suggested was based upon the Castle of Longtown, with the moiety of Ewyas Lacy held by the Marquess rather than the other moiety[7] . The effect of this would be to legitimise the claim of the Marquess of Abergavenny to large areas of ‘customary land’ which otherwise could have been debateable. This may also explain the interest throughout the collection of manorial papers in the Marquess of Abergavenny’s Gwent Record Office collection with ‘Expired Copyhold’ leases[8] .
The Court Baron of what came to be known as the Manor of Ewyas Lacy, was a very ancient institution and would have dated back to pre Norman days when even the name Ewyas Lacy had not been brought into use and much before the founding of the Castle of Longtown. The Court Baron had authority over the ‘customary’ lands of an ancient ‘Manor’ which in this case would have been Welsh in its origin. The holding of the lands was determined by the Jury of the Court ‘according to custom’ and recorded in the rolls of the court. It was only later when the position of scribe of the Court was taken by the Steward of the Lord of the Manor that the full power of the Lord of the Manor could be exercised largely independent of the Jury.
It is quite possible that the original manor of the Court Baron was that of the Manor of Jenkin ap Richard[9] alias the Manor of Newton. This would have been a very extensive manor which probably extended eastward from the river Escley to the Golden Valley[10] and encompassed much of what later to become the parishes of Newton, St Margarets, Bacton along with part of Longtown and part of Michaelchurch towards Urishay. As such it would have included what were later the estates of Newcourt[11] and Whitehouse[12] . The place names ‘Newton’ and ‘Bacton’ are of Saxon origin and would not have been used before the 10th century. Some Christian Churches were established in the 8th or 9th centuries, but parish boundaries were not defined until after the Council of Lateran[13] which was held in 1179. They then were used to determine to which Church tithes were due. The Court Baron of this Manor was most probably held at one time at what is now known as Old Court[14] . If this was the case then the claim of the other moiety would have been equal if not stronger to that that of the moiety held by the Marquess of Abergavenny.
It is also to be noted that the boundary of the Hundred of Ewyas Lacy as recorded in various surveys becomes rather confused when dealing with the boundary along the eastern side. It was not completely clear to the Jury of the Court if the boundary was along the Dulas Brook or beyond along the edge of the Golden Valley to include Whitehouse and possibly Newcourt.[15]
The apparent sensitivity of the agents to the Marquess may have been heightened by the several surveys of properties conducted for the other moiety[16] . That of 1653 is entitled “A Particular of the Manors of Ewyas Lacy, Walterstone and Trewaylon”. According to Duncumb[17] , Walterstone as a placename comes from Walter de Lacy an early Norman Lord of Ewyas Lacy. If this is so then the placename as such could not have existed much before the Norman conquest. Walterstone however has been identified in Domesday [18] (1086) as the taxable ‘manor’ which Earl William gave as ‘4 carucates of waste’ to Walter of Lacy then, in 1086, held by his son Roger de Lacy. The entry is of particular interest in that it is given as being in Cutesthorn Hundred. The Hundred of Cutesthorn generally includes places in the neighbourhood of Hereford north of the Wye and not in the area later known as Ewyas Lacy. This would show that the compilers of Domesday had some difficulty in placing Walterstone which would have been outside of the lands of the Saxons and in Welsh territory. However since the Domesday book is essentialy a manual of taxation and not one of geography, their attribution is understandable. There is an ancient iron age camp within the modern parish of Walterstone[19] , so habitation of the area is long standing and the place must have had some local name before the coming of the Normans. The title of the 1653 survey in coupling ‘Walterstone and Trewaylon’ could indicate that ‘Trewaylon’ is an older name for the area which later became Walterstone. If so this would infer that two Manors were involved in this moiety. Trewaylon has been identified by Nina Wedell in her paper on this site as the Manor of Trescaylon[20] . The other Manor is referred to as that of Ewyas Lacy; however the ‘Particular’ opens with an account of the holdings associated with Old Court which suggest that this may have been the seat of the main Manor.
In the Rolls of the Court Baron of Ewyas Lacy there are no copyholds[21] in the area of Walterstone which again supports the possibility that the Ewyas Lacy manor may have been that of Jenkin ap Richard. There is also no mention throughout the Abergavenny papers of Tithes. The rectorial[22] tithes of ‘The Manor of Newton’ were owned by Llanthony Priory and these subsequently descended separately and were more closely associated with the land of the second moiety[23] .
The Welsh lands granted after the Norman Conquest would have consisted of a number of Welsh Manors or as they would more properly be called Trefs or Cantrefs. How many of these there were is by no means clear. However they would have been recognised by the Norman incomers and these, together with the newly formed Borough of Longtown and its Castle would have been the natural basis for dividing and allocating the lands, in about 1241, into the two moieties. The moiety that descended to the Marquess of Abergavenny was over the years much more actively managed than the other moiety, this is apparent in the extent of surviving documentary evidence. It is quite possible that in being pro-active, those who acted for the Marquess overstepped their rightful holdings which subsequently required some legal proceedings to legitimise the position.
By 1829 the agents to the Marquess had long been granting copyholds in the areas of Lower and Upper Maescoed, areas which would have strong geographical links to the Manor associated with Old Court. Little wonder that they sought to strengthen or establish the title to this part of Ewyas Lacy.
[1] In the original form of this device the defendant would have been the previous ‘owner’ of the property and the plaintiff the incoming owner; the legal device achieved a transfer of the property.
[2] The case would be held in the Court of Quarter Sessions or a higher court such as the King’s Court
[3] Lawler, J John, A Short Historical introduction to the Law of Real Property , 2000. p79
[4] A Chirograph was an early form of document copying, something akin to modern photocopying, by which a readable impression of an ink written document was made on special paper.
[5] For a transcript of the investigation and opinion of Henry Wm Hezlett in 1829 see nw_ewy_1201
[6] Since it was intended that the case would be abandoned before it was necessary for the witnesses to give evidence they would not be required to testify on sworn oath that their evidence was the truth.
[7] For the origin of the two moieties of the Lordship of Ewyas Lacy created in about 1241 and inherited by the two granddaughters of the second Walter de Lacy see nw_ewy_9001
[8] For a ‘Schedule of Expired Leases 1628-1770’ see D1583/1/1 in the Abergavenny papers at the Gwent Record Office
[9] Sometimes given as ‘Jenkin Prichard’, for a 18th century rental see (nw_nwt_2001)
[10] The Golden Valley at that time formed a natural boundary both to the eastern side of the Welsh Manor and to Saxon penetration from the East see gc_gdv_3000
[11] Newcourt later became an estate in its own right and in its greater part devolved to the later day Manor of Bacton see gc_gdv_2126 and gc_gdv_2100
[12] Occupiers of Whitehouse were patrons of St Margarets Church (see gc_stm_2009 ). For details of Whitehouse and its history including a claim to part of the Manor of Jenkin ap Richard see gc_gdv_2003 and gc_gdv_2004
[13]See https://www.catholicity.com/encyclopedia/t/tithes.html for details
[14] The place name ‘Old Court’ strongly suggests that this was the place where an ancient customary court was held. Old Court is one of the oldest homesteads of Ewyas Lacy; for its location and further details click here
[15] see paper by Nina Wedell (see nw_ewy_3006)
[16] Details taken from paper by Nina Wedell (see nw_lon_3006)
1566 Survey : Rental of Ewias Lacy on the behalf of Robert Dudley, Earl of Leicester. Longleat DU/Vol XVII
1625-26 Survey: Survey and Rental of Ewyas Lacy ex parte Henrici Nevil militis, Domini Bergavenny. Gwent Record Office: MAN/A/151/0022 and copy MAN/A/151/0028
1653 Survey : A Particular of the Manors of Ewyas Lacy, Walterstone and Trewaylon. Gwent Record Office: MAN/151/0077. Click here to see a digital image on the ELSG website.
1667 Survey : Survey of the Manor of Ewyas Lacy on the part of Trevor Williams. Gwent Record Office: MAN/A/151/0023. Click here to see a digital image on the ELSG website; click here to see a transcription of the Articles of Inquiry.
1705 Survey : Manor of Ewyas Lacy, survey for John Jeffreys. Herefordshire Record Office: J91/4. Click here to see a transcription on the ELSG website.
[17] John Duncumb, Collections towards the History and Antiquities of the County of Hereford ; Part I of Vol. II [Pub. 1812]. For the Walterstone entry see rs_dic_0106
[18] The Domesday book of Herefordshire , John Morris editor, 1983, Phillimore Press
[19] to see Herefordshire SMR record click here
[20] see nw_lon_3006
[21] ‘Copyholds’ are a form of land holding that are peculiar to lands which come under the jurisdiction of a Court Baron. There was apparently only one Court Baron in Ewyas Lacy and this could have served only one of the two later ‘Lordships’
[22] The ‘Rectorial Tithes’ or ‘Great Tithes’ or ‘Corn Tithes’ as they are sometimes known were the main item of church income from a parish. They were owned by those who had the Advowson of the parish; i.e. the right to nominate the incumbent. In Clodock in the early 19th century the Rectorial Tithes were held by the De Winton family of Maesllwch Castle, a family with close business connections with the Jeffreys of Brecon to whom had descended the second moiety of Ewyas Lacy. See nw_clo_3004 for reference to the ‘Abbey Tithes’ of Clodock and click here for details of the De Winton family.
[23] For the Llanthony connection:
see Duncumb’s ecclesiastical account of Clodock at rs_dic_0107
for the descent through the Arnolds of Llanvihangel see gc_lva_3001
and the will of James Williams, 1710, at gc_ewy_3062
and the Harley connection at nw_ewy_0001
Ref: gc_ewy_2023