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Writ of
Error.

1 Inst. 260 a. 3 Comm. 40.

SECTION 1.

FINE being considered as a judgment given in

AFINE

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, 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

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 ge 1 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 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

Idem.

n. 6.

Champer

noon v.

Godolphin,

Tit. 36. c. 11.

writ of error.

brother.

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.

8. 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.

Cro Eliz.

9. Husband and wife were tenants for life, with Piggot v. remainder to an infant in fee, and they all joined in Russell levying a fine: the infant alone brought a writ of 115. error to reverse it, on account of his non-age.

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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.

11. A writ of error to reverse a fine must be Against brought against some one of those who were parties 1 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, Error. 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 cannot be admitted.

ante, c. 2. $60.

Dyer, 89 b.

Wright v.
Wickham,
Cro. Eliz.
468.

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 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.

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