Estates Tail

the Crown

c. 10.

26. It has been stated in chapter ix. that estates of the Gift of tail, of the gift of the Crown, may be barred by the for Services. stat. 4 Hen. VII., though excepted out of the stat. 32 Hen. VIII. But by a subsequent statute, a distinction is made between estates tail of the gift of the Crown generally, and estates tail granted by the Crown as a reward for services; and these last are protected from the operation of the stat. 4 Hen. VII., as well as from that of the stat. 32 Hen. VIII., of which an account will be given in Title Recovery. 27. When fines became common assurances of 1 Inst. 372 b. lands, the Judges would no more allow a fine to divest the interest of the King, than any other conveyance, but preserved the King's remainder or reversion, though they allowed the fine to bar the person levying it, and his issue; so that where a fine is levied of an estate tail, whereof the remainder or reversion is in the King, it creates a base fee, determinable on failure of heirs of the body of the tenant in tail.

Reversions in

the Crown.

Mulgrave.v.

Mounson,

28. It was held by Lord Nottingham, assisted by 2 Freem. 17. Lord C. J. North and J. Jones, that where there is tenant in tail of the gift of the King, with a remainder in the Crown, such tenant is not restrained by the stat. 34 Hen. VIII., but might levy a fine to the Crown which would bar his issue; for it appeared by the preamble of the statute, that it was made to prevent the alienation by tenant in tail, that the memory of the King's bounty might be preserved; and where the estate comes wholly back to the King, there it is in the King's power to preserve the memory of his bounty, either by giving it back to the same party, or what other way he pleaseth.

29. A springing or shifting use cannot be defeated or destroyed by a fine levied of the estate out of which such springing or shifting use is to arise.

30. Thus in the case of Lloyd v. Carew, which

§ 31.

has been stated in a former title, it appeared that Tit. 16. c. 5. Richard Carew and Penelope his wife, in order to extinguish and destroy all such right as the heirs of Penelope might have under the proviso, and for settling the same on R. Carew and his heirs, levied a fine of all the estate, and declared the uses thereof to R. Carew for life, remainder to Penelope for life, remainder to R. Carew in fee. R. Carew died without issue, upon which the heirs of Mary claimed. the estate under the proviso, and filed their bill in Chancery, to compel the trustees to convey the estate to them, on payment of the 4,000l.

The bill was dismissed; but upon an appeal to the House of Lords, the decree of dismission was reversed, it being alleged that the fine could not bar the benefit of this proviso, because the same never was nor could be in Penelope, who levied the fine.

Dignities.

Tit. 26. c. 2. § 25.

&c.

31. A dignity or title of honour cannot be barred or surrendered by fine, as has been already shown. 32. There are several cases in which a court of Mortgages, equity will not allow a fine to have any effect on estates in mortgage and trust estates, of which an account will be given in the next chapter.

Writ of
Error.

1'Inst. 260 a.

SECTION 1.

AFINE being considered as a judgment given in

a court of record, it can only be reversed by a writ of error; which is also a matter of record, being a commission to Judges of a superior court, authorizing them to examine the record upon which a judgment was given, and on such examination to affirm or reverse the same, according to law.

2. During the term in which a judicial act is done, 3 Comm. 40. the record may be amended or invalidated without a writ of error: because, during the term, the record is in the breast of the Court, and the rolls are alterable at the discretion of the Judges. And now, the courts of justice allow amendments to be made at

any
time while the suit is depending, notwithstanding
the record be made up, and the term be past; for
they consider the proceedings as in fieri until the
judgment is given: so that a fine may now be
amended or invalidated at any time during the term
in which it is levied, by an application to the Court
of Common Pleas. A fine may also be amended as
to any mistake or misprision of the officers of the
Court at any time, and the cases on this subject have
been already stated.

ante, c. 7.

3. A writ of error is, properly speaking, a pro- Fitz.N.B.21. ceeding in the nature of an appeal, and therefore must be brought in a superior court; so that a writ of error to reverse a fine must be brought in the Court of K. B., because that Court has an appellant jurisdiction over the Court of Common Pleas. But where the error assigned in a judgment does not arise from any fault in the Court, but from some defect in the execution of the process, or from some matter of fact, the writ of error must be brought in the same Court in which the judgment was given; and therefore, in cases of this kind, a writ of error to reverse a fine must be brought in the Court of Common Pleas.

4. With respect to fines levied before the Justices of Wales, pursuant to the stat. 34 & 35 Hen. VIII. it is provided by that statute, § 113, that all errors therein shall be redressed by writ of error, to be sued out of the King's Chancery in England, returnable before the King's Justices of his Bench in England. And by the stat. 43 Eliz. c. 15. § 6, it is enacted, that all fines levied in the county of the city of Chester, pursuant to that act, shall be subject to be reversed, upon writs of error to be sued and prosecuted before the High Justice of the county

1

Who may
bring it.
Roll. Ab. tit.
Error, K.

Dyer, 90 a.

palatine of Chester, as other judgments given in the Portmoot Court.

5. With respect to the persons who may bring a writ of error, it should be premised, that no person has a right to reverse a fine, unless he can show that, upon such reversal, he will be entitled to the land; for the courts of law will not dispossess the tenant in possession, unless the demandant can make out a clear title; possession always carrying with it the presumption of a good title, until the contrary appears. Besides, if the person who demands the reversal of the fine cannot prove that he has a title to the lands of which the fine was levied, it follows that he is not affected by it, and it would be trifling with courts of justice for a person to seek relief who cannot make it appear that he has received an injury.

6. The person, therefore, entitled to a writ of error to reverse a fine, is he who would have had the lands if the fine had not been levied; which, in ge1 Leon. 261. neral, is the heir at law. But where one who is seised ex parte materna levies a fine, in which there is error, the heir ex parte materna will be entitled to the writ of error. The youngest son, when entitled to the lands, by the custom of borough English, shall have the writ of error, and not the heir at common law, because this remedy descends with the land: a 1 Inst. 14 a. brother of the half-blood, however, is not entitled to bring a writ of error, on a fine levied by his elder brother.

Idem.

n. 6.

Champer

noon v.

Godolphin,

Tit. 36. c. 11.

7. In a writ of error to reverse a fine, it is not necessary that the person who brings the writ should Cro. Jac.150. 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 a person in remainder.