may reverse the fine or recovery as to the remainder. (r) A recovery suffered after an erroneous fine, will bar the issue in tail of the person who levied the fine, from bringing a writ of error to reverse it, (s) because a recovery with voucher bars every kind of right which the vouchee or his heirs can have to the land of which it is suffered. In like manner if a person who suffers a recovery afterwards levy a fine, he cannot have a writ of error to reverse it. (t) If a fine or recovery be levied or suffered in the Court of Common Pleas of lands, held in ancient demesne, the lord may reverse it by writ of deceit. (u) But as no writ of error lies to reverse a judgment in a Court not of record, an erroneous recovery or judgment in these Courts can only be reversed by writ of false judgment in the Court of Common Pleas ; and in the case of a copyhold Court, from which even a writ of false judgment does not lie, the remedy is by bill or petition, in the nature of a writ of false judgment. (v) In some cases the Court of Common Pleas will vacate and set (r) Wright v. Wickham, ubi sup. (s) Barton v. Lever, Cro. Eliz. 388. (t) Pigot 169. (u) Rex v. Mead, 2 Wils. 17. Rex v. Firebrace, Barnes's notes 258. (v) 5 Cruise's Dig. 3d edit. 252. Smith v. Dean and Chapter of St. Paul's, Show. Parl. cases 67. 1 Vernon 367. aside a fine upon motion, although the king's silver has been paid, and the fine completed, without putting the parties to the trouble and expense of a writ of error, in the same manner as they would set aside a judgment obtained by trick or surprize. (w) a fine. A fine may be avoided by a real action of avoiding commenced and prosecuted with effect within five years after it was levied: (x) but an action of ejectment not being a real action, will not avoid a fine; (y) neither will a bill in equity, unless the fine has been levied of a trust estate, in which case the claim to avoid the fine must be of a nature corresponding with the estate. (*) A fine may also be avoided by an actual entry (a) made on the lands (b) whereof it has been levied, if the person who seeks to avoid the fine have a right of entry : but if the right of entry be taken away and only a right of action remain, as where a fine operates as a discontinuance of the estate, there an actual entry on the land will not avoid the fine, (w) 2 Show. cases 266. Hutchinson's case, 2 Lev. 36. (x) 4 Hen. VII. 1 Vent. 45. (y) Comb. 249. (*) 1 Cha. Ca. 268, 278. 2 Black. Rep. 994. Saund. 319. Plow. 358. Of falsifying a recovery. but a real action must be brought. (c) No entry, however, is necessary, where the fine is levied without proclamations; for the stat. 4 Hen. VII. does not extend to such fine, and therefore it may be avoided at any time within twenty years. Nor is an entry necessary where the parties to the fine had no estate of freehold in possession of the lands whereof it was levied. (d) The entry must be made by the person who has the right to the lands, or by some one empowered by him; and it will be nugatory unless an action be commenced within one year after making it. (e) Where a fine is void ab initio, either as to every body or as to some particular persons only, its effect may be avoided by the plea, partes finis nihil habuerunt. (ƒ) The law allows all strangers, whose interests are affected by a common recovery, to falsify it, because, having no immediate estate or interest in the lands, they are incapable of bringing a writ of error to reverse it. Thus a recovery may be falsified and invalidated on a trial in ejectment; for if it be given in evidence and set up by way of defence, the plaintiff may shew any defect in the recovery; and if the Court be of opinion that it is void, and the plaintiff en (c) 1 Vernon. 213. (d) 5 Cruise 254. (3d edit.) (f) Dyer 215 b. 2 Inst, 253. titled to recover, the recovery is completely falsified as to that action. Thus it may be shewn that the person against whom the writ is brought had no estate of freehold in the land at the time. And the Court of Chancery can invalidate either a fine or recovery, which appears to have been obtained by fraud or imposition, by compelling the recoveror to convey the estate to the person who is entitled in equity to have it, or by declaring the recoveror to be a trustee for such person. A Court of equity will likewise restrain the operation of a recovery to those purposes for which it was intended, and will not allow it to have a more extensive operation. (g) And where a person has been prevented from suffering a recovery by force and management, the Court of Chancery will compel the parties to act as if the recovery had been suffered. (h) fine or re covery in To prove a fine at common law, it is only ne- of giving a cessary to produce the chirograph which is conclusive evidence of the fine, because the chiro- evidence. grapher being an officer appointed by law, for the purpose of transcribing fines from the record and delivering them to the parties, his copies must be allowed to be authentic. (i) But the chirographer is not authorized by the statute (g) Stanhope v. Thacker, Prec. Cha. 435. (h) Luttrel v. Olmias, 11 Ves. 638. (i) Gilb. Evid. 24. Bull. N. P. 229. to deliver copies of the proclamations to the parties; therefore, when the proclamations have to be proved, an office copy of the fine, with the proclamations indorsed on it, must be obtained from the chirographer; and the person who is to prove the proclamations must himself examine the copy with the record. (k) The safest way to do this is to cross-examine the copy, by letting the chirographer's clerk read the record to the witness who is to prove it, whilst he looks at the copy, and then for the clerk to read the copy whilst the witness looks at the record. But it has been held sufficient to prove that the copy agrees with what the officer read as the contents of the record; (7) and it has also been several times decided at nisi prius, (m) that the accuracy of the copy of a record is sufficiently proved by a witness who looked at the copy while the original was read by another person. Where the proclamations appeared to be duly indorsed (k) When the proclamations have to be proved at the assizes, it is usual, in order to save the expense of a witness on purpose, to get one of the judge's clerks, who goes the circuit, to examine the office copy with the record, and to produce and prove the copy on the trial. (1) Rolfe v. Dart, 2 Taunt. 52. (m) Per Lord C. J. Kenyon, Lord C. B. Macdonald, and Mr. Justice Lawrence. See Manning's Digest. tit. Records 92. |