Kingston v. recovery ought not to be examined, until all the parties interested in supporting it are before the Court. 13. The issuing writs of scire facias to the terretenants, is not however deemed to be ex necessitate juris, but only discretionary in the Court: and therefore a judgment of reversal of a common recovery is not void for the want of a writ of scire facias. 14, Thus, on a motion in the Court of King's 2 Show. 490, Bench to set aside a judgment of reversal of a 3 Mod. 119. common recovery on a writ of error brought there, because there was no scire facias to the terre-tenants; it was strongly debated, and on all hands agreed to be very inconvenient, that a scire facias should not be to the tenants, for otherwise a purchaser might be deprived of his assurance without notice. It was urged that the terre-tenant cannot be party to the writ of error; that they had a record exemplified of the reversal; that the reversal was in 35 Car. II. ; that the want of a writ of scire faci as must be error either in law or in fact; it could not be error in law, for that must appear upon the record itself, which it did not here; it could not be error in fact, because there was no necessity for such a writ, it was only discretionary in the Court, and not ex necessitate juris. The Court was of opinion that the awarding writs of scire facias to the terre-tenants was discretionary. Hall and Ux, And in a subsequent case Lord Mansfield said, that 1 Burr. 359. by the established mode of proceeding, there must be a scire facias against the terre-tenants, otherwise it is an irregularity, but no more. v.Woodcock, The Parol demurs for Infancy, 15. In a writ of error to reverse a common recovery, the parol shall demur for the infancy of the tenant. Aland v. Malone, 16. In a writ of error from a judgment in the Court of K. B. of Ireland, the case was, that in a Fitzg. 114, writ of error there to reverse a common recovery, the defendant pleaded that he was an infant, and prayed that the parol might demur. To this the plaintiff demurred; and upon argument judgment was given for the defendant, that the parol should demur. The judgment was affirmed. 17. The errors assigned in a common recovery may What may be assigned for be either in fact or in law. But by the statute Error. 23 Eliz. c. 3. § 2. it is enacted, that no common 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 or substance. § 12. 18. Nothing however can be assigned for error in a Tit. 35. c.14. common recovery which contradicts the record; from which it follows, that no incapacity in a vouchee can be assigned for error, where such vouchee appeared in person: but if a vouchee appears by attorney, an averment may then be made, that such vouchee laboured under some personal disability, which rendered him incapable of suffering a common recovery. 19. Thus in a writ of error to reverse a common Holland v. Dauntzey, recovery, the error assigned was, that the vouchee Cro. Eliz. was within age, and appeared by attorney. 739. Darey v. All the Court agreed that this circumstance might Jackson, well be assigned for error after the death of the Palm. 224. vouchee. 20. So in the case of Stokes v. Oliver an averment ante, c. 5. was allowed, that the vouchee, who appeared by § 10. attorney, was an infant; and the recovery was reversed, Hume v. Dom. Proc. 21. An averment may of course also be made that a vouchee who appears by attorney is an idiot, or insane. And in the following case it was held by a majority of the Judges in Ireland, that an averment of idiocy might be made against a vouchee who appeared by attorney. And they also held, that neither an inquisition finding that a vouchee was not an idiot, or of unsound memory; nor the caption of a warrant of attorney to suffer a common recovery appearing upon record to have been taken by the Chief Justice of the C. P. out of Court; nor a fine acknowledged before the same Ch. Justice on the same day with the warrant of attorney, for the purpose of making a tenant to the præcipe, were conclusive evidence of the sanity and capacity of the vouchee. 22. A writ of error was brought in the Court of King's Bench in Ireland, to reverse a common recovery suffered by Nicholas Earl of Ely in 1767, in which he appeared by attorney (having acknowledged a warrant of attorney before the Lord Chief Justice of the Common Pleas for that purpose); and the error assigned was, that the Earl of Ely was of unsound mind. Issue being found upon this fact the plaintiff in error offered to produce evidence of the incapacity of the said Earl; but the counsel for the defendant insisted that the acknowledgment of the warrant of attorney before the Chief Justice was a judicial act and matter of record, and was conclusive evidence of the said Earl's sanity. The Court was of opinion, that the evidence could not be admitted. A bill of exceptions was tendered, and a writ of error brought in the House of Lords of Ireland, where the following question was put to the Judges: "Whether in a case where the vouchee in a common recovery appears by attorney, the caption of the warrant of attorney, appointing such attorney, appearing upon the record to be taken by the Chief Justice of the Common Pleas out of Court, was conclusive evidence of the capacity of such vouchee, as to the soundness of his mind, to make such attorney and to suffer such recovery The Judges were divided; but the majority were of opinion that the caption of the warrant of attorney, appearing on the record to be taken by the Chief Justice out of court, was not conclusive evidence of the capacity of the vouchee. Whereupon it was ordered and adjudged, that the judgment given in the Court of King's Bench should be reversed; and that the verdict should be set aside and annulled; and that the parties should proceed to a new trial upon the issue joined between them, as in the said record. A new trial was had, when the plaintiff's counsel offered to give parol evidence, to prove the fact upon which the issue was joined; but the counsel for the defendant insisted, that the plaintiff ought not to be allowed to go into such evidence, as they, on the part of the defendant, had evidence of record to produce, which was conclusive to the fact in issue, and therefore could not be controverted; (that is to say), a commission issued out of the Court of Chancery to try the sanity of the said Nicholas Earl of Ely, and the inquisition taken in consequence of such commission, by which it was found that the said Nicholas Earl of Ely was not an idiot, or a person of unsound mind; and also a fine with proclamations, levied of the lands of which the recovery sought to be impeached had been suffered, and taken before the Chief Justice of the Common Pleas, on the same day on which the warrant was acknowledged; which fine was levied to Henry Loftus, for the purpose of making him tenant to the præcipe in that recovery. The Court being of opinion that this was the proper mode of proceeding, the defendant's counsel accordingly gave in evidence to the jury the said commission and inquisition, finding that Nicholas Earl of Ely was not an idiot, or person of unsound mind, and also a fine with proclamations, levied by the said Nicholas Earl of Ely of the lands, &c. in the said recovery, to Henry Loftus, for the purpose of making him tenant to the præcipe, and which was taken by the Lord Ch. Justice of the Court of Common Pleas on the 8th of July 1767, being the same day on which the acknowledgment of the warrant of attorney was taken by the same Chief Justice. And the counsel also gave in evidence the warrant of attorney and the caption thereof. And the defendant's counsel thereupon insisted, that the said inquisition, finding that Nicholas Hume Earl of Ely was not an idiot or person of unsound mind, had for ever concluded that question: that the fine and recovery were both before the court; that the fine was of the same lands, and passed the same estate on the same day to the tenant to the præcipe in the recovery, on which the warrant of attorney was acknowledged, and that it constituted part of the same assurance; that the fine gave and was meant to give operation to the recovery, and that without it the recovery would have been a mere nullity; that therefore there was a mass of evidence, conclusive as to the sanity of Nicholas Earl of Ely, and of a nature not to be controverted, laid before the court; and that no parol evidence could or ought to be received on the part of the plaintiff, as to the issue de pending. |