brown case lord viscount say and seal and other plaintiff henry lloyd and  other defendant in error that may Mews dig seven by the chirograph of a fine  the caption appear to be on the d of October whereas in fact the fine be not  acknowledge till the d of march follow and this be offer to be prove but the  court refuse to admit the evidence be of opinion that no proof of the time of  acknowledge a fine ought to be admit contrary to or against the chirograph  thereof and that the record which be the chirograph of a fine can be falsify  until it be vacate or reverse judgement of king b affirm it be a principle of  the commonlaw that the evidence of a record be of so high and certain a nature  that its authenticity be never permit to be call in question Inst a in vin it  be state that the concord of the fine be of one term and the think over of  another term follow and therefore the question be of which term this shall be  say to be a complete fine per cur it be a fine of that term when the concord  be make and of which the writ of covenant be returnable for the concurrence  agreement fanctam in curian be the complete fine the to go away think over be  the leave of the court to enrol it salk Mod viner vol p can this be a  ejectment bring by the defendant Lloyd as lessee of the other defendant for  the recovery of certain land in the county of Oxford and on the trial at the  bar of the court of queen bench on the that of November the title appear to  stand thus in William Lord viscount say and seal be seize in fee of the  premise in question make a settlement thereof to the use of himself for life  remainder to his first and other son successive in tail male remainder to his  uncle John fiennes for life remainder to his first and other son successive in  tail male with other remainder over that Lord William have only one son  Nathaniel who on his father death enter and be seize and afterward die without  issue leave the defendant Cecil fiennes and Cecil mignon his cousin and coheir  at law that John fiennes have one son the present plaintiff who on the death  of Lord Nathaniel succeed to the honour and also claim this estate as heir  male of his father but in bar of this title it be allege that Lord Nathaniel  in October levy a fine and in Michaelmas term follow suffer a recovery of the  premise in question whereby he bar the subsequent remainder and acquire a  estate in fee and to prove this the chirograph of a fine be produce import  that Nathaniel viscount say and seal levy that fine to Bezaleel knight on the  d of October and the exemplification of a common recovery be also produce  which appear to have be suffer on the that of November and that Jonathan  Johnson be the demandant Bezaleel knight tenant and Lord Nathaniel vouchee  brown on this state of fact the single question between the party be whether  Bezaleel knight have the freehold in he on the that of November when the  recovery be suffer or not if he have then the recovery be good and have bar  the present lord title if he have not the recovery be void and his lordship  title be not bar the counsel for the present lord insist that knight be not  tenant of the freehold at the time of suffer the recovery for that the fine  give in evidence to make he so be not in fact acknowledge by Lord Nathaniel  until the d day of march which be four month after the that of November when  the recovery be suffer and to support this fact they offer to produce and  prove brown er p saint the record of the cognizance or acknowledgement of the  fine under the hand of the Lord chief justice Trevor whereby it appear that  the acknowledgement thereof by Nathaniel viscount say and seal be make and  take before the say lord chief justice on the d day of march and not before d  that that acknowledgement of the fine be the very true acknowledgement or  cognizance of the concord upon which the fine give in evidence pass and upon  which the chirograph of that fine be make and engross and d they offer to  produce the file of the court of common plea of the acknowledgement of all the  fine in Michaelmas term whereby it will appear that Nathaniel viscount say and  seal do not acknowledge any fine whatsoever of or in that term or at any time  before the suffer the common recovery and as to this recovery it be contend  that the deed for make a tenant to the precipe be void because Nathaniel  viscount say and seal do not thereby convey the land or the freehold thereof  to the say Bezaleel knight and his heir and this objection be find upon the  follow inaccuracy in the word of that deed witness that in consideration of S  by the say Bezaleel knight to the say Lord Nathaniel in hand pay as also for  the cut off all intails and for the bar of all remainder and reversion of in  and upon all and singular the premise and for settle and assure the same to  the say Lord Nathaniel and his heir do bargain sell and confirm unto the say  Bezaleel knight and his heir etcetera but the court of queen bench refuse to  admit any of the matter offer against the fine to be give in evidence be of  opinion that no proof or evidence of the time of the acknowledgement of the  fine ought to be admit contrary to or against the chirograph thereof and that  the record which be the chirograph of the fine can be falsify until it be  vacate or reverse and as to the objection make to the bargain and sale they  overrule it whereupon the jury find a verdict for the lessors of the plaintiff  and judgement be enter up accord brown to reverse this judgement the present  writ of error be bring and the special error assign upon the record I Pratt n  Lechmere be because the record and matter offer by the plaintiff to be give in  evidence be not admit or allow by the court to be give in evidence or to be  propound to the jury to prove the true time of acknowledge the fine by Lord  Nathaniel and because the jury be not inform by the court that the deed enrol  be a void deed and that the Lord Nathaniel do not thereby convey the freehold  to Bezaleel knight in support of these error it be insist that as the fine be  not in fact acknowledge till the d of march it can not transfer the freehold  of the land to knight three month before the time of that acknowledgement and  that the plaintiff be admit to the proof of this fact by the statute of  Elizabeth cap sect whereby for the avoid of false practice deceit device and  misdemeanour dangerous to the assurance of man land it be enact that any  person that shall at any time hereafter take the knowledge of any fine or  warrant of attorney of any tenant or vouchee for suffer of any common recovery  or shall certify they or any of they shall with the certificate of the concord  or warrant of attorney certify also the day and year wherein the same be  knowledged for if a man can give in evidence the time of acknowledge a fine in  order to avoid deceit impose on he by that fine this statute seem to have be  make for no manner of purpose and as to the deed of bargain and sale enrol  that can not convey any estate to knight antecedent to the recovery because it  be not mention therein that any person do bargain and sell the land in  question there appear indeed the verb bargain and sell but it be not say who  bargain and sell and consequent Lord Nathaniel do not bargain and sell that  the present controversy be between the plaintiff who be the heir male of the  family and on who the honour have descend and the heir female who will by a  fraudulent fine and recovery and a lame deed wrest and take away that estate  from he which be the only support of the honour and therefore it be hope that  the judgement will be reverse on the other side it be contend e Northey r  Raymond that the caption of the fine ought not to be admit against the record  of the indenture of the brown er p fine for it will shake all family  settlement and introduce the great uncertainty and confusion in all conveyance  by fine upon which the most considerable estate in the kingdom depend and that  a attempt to set aside a fine upon evidence be never before make that in the  indenture of all fine the concord be record to be make in court whereas the  caption of the acknowledgement of all fine except a very few be take out of  court either before the lord chief justice of the common plea or commissioner  in the country brown and upon a writ of error no error can be assign in the  caption vary from the record as that will be a error contrary to the record  but if in the present case the fine be irregular the proper method be to apply  to the court of common plea where the same be levy and not attempt in a  summary way to invalidate it by evidence upon a trial of a ejectment and as to  the deed it appear prima fancy that the consideration money be pay by knight  to Lord Nathaniel and that it be for bar all intails and remainder in the  premise and assure the same to Lord Nathaniel and his heir that it appear as  well by the deed itself as by the evidence on the trial that the manor and  land therein mention be the estate of Lord Nathaniel and that the intent of  the deed be to make knight tenant of the freehold in order that Johnson may  demand against he and that he shall vouch Lord Nathaniel and therefore the  court be unanimous of opinion that the freehold be well convey to knight by  this deed after hear counsel on this writ of error it be order and adjudge  that the judgement give in the court of queen bench shall be affirm and that  the record shall be remit to the end execution may he have thereupon as if no  such writ of error have be bring into the house jour vol p