THE Writ of HE judgment obtained in a common recovery every respect to a judgment given in an adversary § 1. 2. Any alteration may however be made in a Id. § 2. recovery, before it is completed. And a recovery may be amended, as to any mistake or misprision of the officers of the court, at any time. The cases on ante, c. 6. this subject have been already stated. 3. A writ of error to reverse a common recovery must be brought in the Court of King's Bench, unless the error is in the process, in which case it may be reversed in the Court of Common Pleas. 4. By the stat. 34 & 35 Hen. VIII. c. 26. § 113. it is enacted, that all errors and judgments before Who may bring it. Anon. 5 Mod. 396. Henningham v. Windham, any of the justices of the great sessions in Wales, in pleas real or mixt, shall be redressed by writ of error returnable before the justices of the Court of King's Bench in England, 5. No person has a right to bring a writ of error for the purpose of reversing a common recovery, unless he has an immediate interest in the lands of which it has been suffered. 6. Thus where a writ of error was brought in the Court of K. B. to reverse a common recovery, and judgment was obtained thereon: but it appearing afterwards that the plaintiff in error had no immediate title to the lands, there being a remainder-man before him, the Court reversed their former judgment of reversal. 7. The right to bring a writ of error descends to the person to whom the land would have descended, in case the recovery had not been suffered. Upon the death of T. Hen 8. T. Henningham being seised to him, and the 1 Leon. 261. heirs male of his body, had issue, Henry his eldest son, and three daughters, and Arthur and two other sons by his second wife. ningham, Henry entered, suffered a common recovery, and died without issue. Arthur the second son brought a writ of error to reverse this recovery, which it was objected, that he was only of the half 1 Burr, 412. blood. to The Court determined that the right to bring a writ of error descended to the person who would have been entitled to the land if no recovery had been suffered; and therefore that Arthur was en titled to the writ of error. 9. In the case of Sheepshanks v. Lucas, which has been already stated, an objection was made to the writ of error, because the plaintiff did not show how this title arose. But the Court said, that a complete title need not be set forth in a writ of error: it was only required of the plaintiff in error to show the connection and privity between the person against whom the recovery was had, and the person who brought the writ of error; for it was not like a proceeding to try the right of land, or to recover the land itself. 10. The right of bringing a writ of error to reverse a common recovery does not pass to the Crown on an attainder for high treason. 3 Rep. 1 11. A tenant in tail suffered a common recovery; Winchester's the remainder-man was attainted of treason, and Case, executed; and by act of parliament forfeited to the King all his manors, &c. reversions, remainders, uses, possessions, offices, rights, conditions, and all other his hereditaments. The recovery being erroneous, the King brought a writ of error to reverse it. Adjudged, that the writ of error was not given to the King by any words in the act of forfeiture, the party having no right of entry, but only a right of action; which did not pass by those general words. But admitting that the writ of error had passed to the King by the words of the act, yet it would not pass from him to a patentee, by a general grant of the manor, cum pertinentiis, and of all the interest, claim, and demand therein; notwithstanding the clause de speciali gratia. For if the King could grant it, that grant must be by virtue of his prerogative, as no common person could do it; and then it ought to be by express and precise words. 12. A recovery ought not to be reversed, unless writs of scire facias are issued against the terretenants and the heir; because errors in a common There must be a Writ of Scire facias. Kingston v. 2 Show. 490, 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 Bench to set aside a judgment of reversal of a 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 er 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. 16. In a writ of error from a judgment in the Malone, 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. 18. Nothing however can be assigned for error in a Tit. 35. c. 14. § 12. common recovery which contradicts the record; from which it follows, that no incapacity in a vouchee can be assigned for error, where such youchee 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. § 10. was allowed, that the vouchee, who appeared by attorney, was an infant; and the recovery was reversed. |