It is to be noted, there is a difference between such conditional estates where the Lord has an interest, and is deprived of it by the infancy, &c. and between the present case. It is a fundamental and immutable principle of Magna Charta that justice must not be sold. So it is, that no man ought tobe condemned unheard. If then a sentence be passed against a person unheard, and such sentence, till it be reversed, is to have the same force and effect with the justest j udgment, or a j udgment in which only some legal formalities have been omitted, or a judgment which though erroneous, has been pronounced by the Judge after he had exercised all the faculties of his mind and understanding, to discriminate the truth or falshood, justice or injustice of the allegations of the contending parties; and the person against whom such sentence has passed unheard, is obliged to be at the expense of reversing such judgment; can he be said not to buy justice ? To this it is objected that all erroneous judgments which are allowed to be voidable, and indeed all manner of judicial proceedings which are attended with a charge are liable to the same objection. To this it is answered when two parties contend for any thing, it cannot be known who has the right, till all the evidence relating to it can be brought to light and a proper examination, which cannot but be attended with a charge, which -the aggressor generally pays; and if after all,, the Judge is mistaken, either in the force of the evidence or makes wrong inferences from, and gives an erroneous judgment, that is a determination of the matter in dispute, till a further examination of it, by which something arising from the nature of the evidence which was at first overlooked may be discovered, or just inferences deduced so as to forma right judgment — this examination is also attended with charge, but free from the imputation of selling justice. But in the former case, where, by the very right of nature,*77every man living who is neither an idiot or lunatic, cannot but know that every person has a right to be heard in defence of his Fife, his liberty, or his property. And to put a man to the expense and fatigue of a formal proceeding to reverse such a judgment, is surely a selling hint justice, or which is the same thing, putting him under the necessity of buying it. In Hutchinson?s case, 3 Lev. 36.' where a fine was levied by an infant, the Court vacated it upon inspection of the record. A judgment by default after the appearance of an infant by guardian shall bind him, but not if he never appear, or if he doth appear in person and make default. 3 Salk. 196. pi. 7.
Errors must be assigned before a scire facias ad aud. errores. Lev. Ent. 88, 89. Clift. Ent. 313. 315. 1 Lutw. 854 a. Where the Court find a title in the King, they ought ex off. to give judgment for him though he' is no party, Vaug. 299. If the Proprietary has such a prerogative as it is contended for, then he appears to have been deceived in his grant, and the grant is therefore void. A grant of a chattel interest in land in fee by the King is void. 3 Leu. 134. And if the King is deceived in the true value of the land, the grant is void. 1 Rep. 52. 11 Rep. 11.
The Court gave judgment upon the special verdict for the defendant. The plaintiff appealed to the Court of Appeals.
Lib. W. G. No. 2. folio 513.
The Court of Appeals at February Term, 1728, 9. affirmed the judgment of the Provincial Court, and the appellant prayed a further appeal to the King in Councilf which was granted.