S. All those who are parties to a fine, must, in general, join with the person entitled to the land, in reversing it; but this rule admits of some exceptions. Russell, 9. Husband and wife were tenants for life, with Piggot v. remainder to an infant in fee, and they all joined in Cro Eliz. levying a fine: the infant alone brought a writ of 115. error to reverse it, on account of his non-age. It was objected, that since all had joined in the fine, they should likewise join in the writ of error; that the husband and wife should be summoned and severed, and then the infant alone might proceed to assign errors. But it was adjudged that the writ of error was well brought by the infant alone; because the error assigned was not in the record, but without it; namely, in the person of the infant. 10. No person can have a writ of error to reverse 5 Rep. 39 b. 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, and render, the cognizor cannot assign error in the grant and render, by which he himself has taken an estate. whom. 1 11. A writ of error to reverse a fine must be Against brought against some one of those who were parties Salk. 339. or privies to it, and not against the tenant of the Holt'sR.614. land only. But the Court will not in general reverse Tit. 36. c.11. a fine, unless a scire facias is returned against the persons who are then in possession; for the cognizees of a fine are frequently nothing more than trustees, and have no beneficial interest in the lands. 12. Errors may be assigned either in fact, as that What may b assigned fo the cognizor of a fine was an infant, or else in law, that is, on account of some defect appearing on the face of the record. But nothing can be assigned for error in fact in a fine which contradicts the record, 1 Inst. 260 a. because the records of a court of justice are of such credit, that they can only be defeated by matters of equal notoriety with themselves; and therefore, although the circumstances assigned for error should be fully proved by witnesses, yet such evidence ante, c. 2. $ 60. Dyer, 89 b. Wright v. cannot be admitted. 13. Thus it has been already stated, that where the entry of the King's silver, before the death of the cognizor, appears upon record, no averment can be made. And that no averment can be made as to the time when a fine was acknowledged, which contradicts the chirograph. 14. It cannot for the same reason be averred that the cognizor of a fine died before the teste of the writ of dedimus potestatem, when it appears by the certificate of the concord that he was alive, for this contradicts the record. But an averment of the death of the cognizor generally, before the engrossment, entry, and recording of the King's silver, is admissible. 15. Where a fine was acknowledged in court, it was held that the plaintiff in error could not assign for error, that the cognizor died before the return of the writ of covenant; for that would directly contradict the record; because no fine is ever acknowledged in court until the writ of covenant is returned, for till then the parties are not before the court: But that where a fine was acknowledged before commissioners, it might then be averred that the cognizor died before the return of the writ of covenant, or that after the acknowledgment, and before the return of the certificate thereof, the cognizor died; because these facts were consistent with the record. Arundel, 16. A fine was acknowledged before Roger Man- Arundel v. wood, Esq. one of the Justices of the Court of Cro. Eliz. Common Pleas; and afterwards a writ of dedimus 677. potestatem was directed to Sir Roger Manwood, he having been knighted after the fine was acknowledged, who returned it with his name and title. It was held that it could not be assigned for error that the dedimus potestatem was directed to Sir R. M. Knt. where there was no such person at the time, he being but an Esquire; because it contradicted the record, by which it appeared that the writ was directed to Sir R. M., who by virtue thereof took the acknowledgement. 17. By the statute 23 Eliz. c. 3. § 2. it is enacted, "That no fine shall be reversed for false or incongruous Latin, rasure, interlining, misentering, or not returning of the sheriff, or want of form in words, and not in substance." demurs for Infancy. 18. Although it is a rule that in actions for the The Parol recovery of dower, the parol shall not demur on account of the infancy of the heir; yet if a man and his wife levy a fine, and after the husband's death the wife brings a writ of error to reverse it, in order to recover her dower; the heir may plead his infancy, and the parol will demur. 19. In error to reverse a fine levied by the plaintiff Herbert v. and her husband, the heir being summoned as terre- Cro. Ja. 392. Binion, tenant, appeared and pleaded that he was within age, and prayed that the parol might demur. The plaintiff counterpleaded the age, showing that she was entitled to have dower before the fine levied; and was now barred of dower by the fine, which was erroneous; and set forth the errors. Upon demurrer and solemn argument it was adjudged, that the parol should demur; and that the plaintiff should not have the advantage to take from Manner of 13. Fazakerly v. Baldo, the defendant his age, having by the fine, so long as it stood in force, barred herself of her dower. And therefore the law would rather favour the infant, whose privilege was immediate, than the plaintiff's, which was only mediate, after the fine was reversed. 20. The manner of reversing fines differs from that which is observed in reversing other judgments; for in those cases the record itself is removed into the court in which the writ of error is brought; 1 Salk. 341. because in adversary suits errors cannot be assigned on a transcript of a record only: but in cases of fines, nothing more than the transcript is removed, on which the errors are assigned: and if the fine is erroneous, the Court of King's Bench may send for the record itself, and reverse it; or else send a writ to the treasurer or chamberlain of the Court of Common Pleas, to take it off the file. 21. It is said by Lord Coke and others, that if there be, tenant for life, remainder in fee to an infant, and they both join in levying a fine, which is afterwards reversed by the person in remainder, on account of his infancy; yet that the cognizee shall have the lands during the life of the tenant for life. But in a subsequent case it was adjudged, that though a fine might be reversed, as to part of the lands, and remain good as to the residue; yet that a fine could not be reversed in toto as to one person, and remain good in toto as to another. 22. By the statute 10 & 11 Will. III. c.J4. reciting that fines, recoveries, and judgments were reversible at any time, without restraint or limitation, for any error or defect which happened therein, by the ignorance or carelessness of clerks, and sometimes by unavoidable accidents; it is enacted, § 1, "That no fine or common recovery, &c. shall be reversed or avoided for any error or defect therein, unless the writ of error or suit for the reversing of such fine, 23. In consequence of this statute, a writ of error to reverse a fine must be brought within twenty years after the fine has been levied, and not within twenty years after a title has accrued; for the time Vide Lloyd v. Vaughan, when the fine was levied is the period from which the Tit. 36.c.11. twenty years are to be reckoned. may 1 Roll. Ab. 24. A person may bar himself from bringing a How it writ of error in several ways. Thus if a person re- be barred. leases all his right in, or makes a feoffiment of the 788. land, whereof a fine has been levied, he will be thereby barred from bringing a writ of error; because, by his release and 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. 10 Vin. Ab. 25. But it was unanimously held in the case of ante, $15. Wright v. Wickham, that if a person releases his 15. |