CHAPTER V. OF THE REVERSAL, AVOIDANCE AND FALSIFICATION versal of fines and recoveries. FINES and recoveries being considered as of the rejudgments given in a Court of record, may be reversed by writ of error brought in the Court of King's Bench, unless the error be in the process, in which case they may be reversed in the Court of Common Pleas. No person has a right to bring a writ of error to reverse either of these assurances, unless he has an immediate interest in the lands affected by them. (a) The person therefore entitled to a writ of error to reverse a fine or recovery is he who would have had the lands, if the fine or recovery had not been levied or suffered; which is in general the heir at law. (b) And it is not necessary (a) Roll. Ab. tit. Error K. H Dyer 90 a. Henningham that the person who brings the writ of error should deduce his title and pedigree, unless it be a special case varying from the common course; as where a writ of error is brought by a special heir in tail, or person in remainder. (c) But no person can have a writ of error to reverse a fine who took any estate by it, because no recoveror can bring a writ of error to defeat a record by which he himself has recovered for the judgment in a writ of error is to avoid that which the plaintiff has lost; and it is held on this principle, that in a fine sur done grant et render, the cognizor cannot assign error in the grant and render, by which he himself has taken an estate. (d) And the right to bring a writ of error to reverse a recovery does not pass to the crown on an attainder for high treason. (e) The writ af error must be brought against some one of those who were parties or privies to the fine or recovery, and not against the tenant of the land only; (f) and writs of Scire facias ought to be issued against the terretenants and the heir, so that all parties interested in supporting the fine or re (c) Champernoon v. Godol- (e) Winchester's case, 3 (f) 1 Salk. 339. Holt's R. 614. covery may be before the Court when the errors are examined: but the issuing of these writs is discretionary in the Court; and, therefore, a judgment of reversal would not be void for want of them. (g) The parol may demur for the infancy of the tenant in a writ of error to reverse a fine or recovery. (h) The errors for which fines and recoveries may be brought are either in fact, as that the cognizor or vouchee was an infant; or else in law, that is, on account of some defect appearing in the record. But by stat. 23 Eliz. c. 3. s. 2. it is enacted that no fine or recovery shall be reversed or reversable for false or incongruous Latin, razure, interlining, misentering of any warrant of attorney, misreturning or not returning of the Sheriff, or other want of form in words, and not in matter of substance. And nothing can be assigned for error in a fine or recovery which contradicts the record, because records of a Court of justice are of such credit, that they can only be defeated by matters of equal notoriety with themselves; (i) and, therefore, although the circumstances assigned for error be fully proved by witnesses, yet such evidence (g) Kingston v. Herbert, 2 Show. 490. 3 Mod. 119. Hall v. Woodcock, 1 Burr. 359. (h) Herbert v. Binion, Cro. Jac. 392. Aland v. Malone, Fitz. 114. (i) 1 Inst. 260 a. is inadmissible to impeach a record. So that if the entry of king's silver appear upon record before the death of the cognizor, no averment can be admitted against it; nor as to the time when a fine was acknowledged, which contradicts the chirograph; nor that the cognizor of a fine died before the teste of the writ of dedimus potestatem, if it appear by the certificate of the concord that he was alive. (k) But an averment of the death of the cognizor generally, before the ingrossment, entry, and recording of the king's silver, is admissible. (1) No incapacity in a vouchee can be assigned for error, where such vouchee appeared in person but if he appeared by attorney, an averment may be made, that he laboured under some personal disability which rendered him incapable of suffering a recovery; as that he was within age, (m) or was an idiot, or insane, (n) or that the vouchee died before judgment was given. (o) By stat. 10 and 11 Will. III. c. 4. no fine or recovery shall be reversed or avoided for any error or (k) Dyer 89 b. (1) Wright v. Wickham, Cro. Eliz. 468. Arundel . Arundel, ib. 677. (m) Holland v. Dauntzey, Cro. Eliz. 739. Durey v. Jackson, Palm, 224. Stokes v. Oliver, 5 Mod. 209. (n) Hume v. Burton, Dom. Proc. Hib. 1785. (0) Wynne v. Wynne, 1 Wils. R. 42. defect therein, unless the writ of error or suit for the reversing of such fine or recovery be commenced, or brought and prosecuted with effect, within twenty years after such fine levied or recovery suffered. But if the person entitled to bring such writ of error be within the age of twenty-one years, covert, non compos, imprisoned, or beyond the seas, at the time when his title accrued, five years further, after the removal of such disability, is allowed to bring such writ of error or suit. A writ of error, therefore, to reverse a fine or recovery must be brought within twenty years after the fine or recovery has been levied or suffered, and not within twenty years after a title has accrued; for the time when the fine was levied is the period from which the twenty years are to be reckoned. (p) A person may bar himself from bringing a writ of error to reverse a fine or recovery, by releasing all his right in, or making a feoffment of the land whereof the fine or recovery has been levied or suffered; for by his release or feoffment he has for ever excluded himself from the land, and no person can have a writ of error who is not entitled to the land. (q) But if he release his right in, or make a feoffment of part of the land only, he (p) Lloyd v. Vaughan, 2 Stra. 1257. (q) 1 Roll. Ab. 5 Cruise tit, 35. c. 14. s. 24. |