
    Anne Riley vs. John Waugh.
    A writ of error will not lie for error in fact, which contradicts the record, and which might have been put in issue and tried; more especially, where it was actually put in issue and tried; even when, if the error were as alleged, the court that tried the case had no jurisdiction.
    This was a writ of error to reverse a judgment of this court, rendered at the October term for this county, 1845. The action, in which the judgment was rendered, was a writ of entry commenced in the court of common pleas, by Waugh against Riley, to recover a tract of land, of which Waugh claimed to be seized in fee and in mortgage. After trial and verdict in favor of Waugh in the court of common pleas, the action was removed on exceptions to this court, which overruled the exceptions, and rendered a conditional judgment in favor of Waugh for the possession of the land.
    Riley now assigned as error in fact in the record and process, “ that said court of common pleas, at which said action was entered, or any court of common pleas since, could not by the law of the commonwealth take cognizance of the said cause of action, if any, which accrued to the said plaintiff, because the said Waugh was not seized of said demanded premises in fee and in mortgage, as by his writ is supposed, but was seized thereof in his demesne as of fee, and that said cause of action was within the exclusive jurisdiction of the supreme judicial court of this commonwealth, and not within the jurisdiction of the said court of common pleas, and that therefore in that there is manifest error.” To this the defendant in error pleads, “ that the judgment mentioned in the said Anne’s writ of error is not erroneous in any matter of fact in manner and form as the said Anne has in her said writ alleged, and of this he puts himself upon the country; ” and by order of the court filed a specification of defence, (see 6 Met. 490,) in which he gave notice that he should rely in his defence on the following matters: That he was seized in fee and in mortgage of the premises demanded in his action against Riley; that the court of common pleas had jurisdiction of that action; that there was no such manifest error in the judgment as the plaintiff had assigned; that if any such error existed, it should have been pleaded in abatement of that action, and that the plaintiff in error, not having so pleaded it, had waived all error, if any there was; and that all matters now complained of, and assigned as error, were included in the exceptions on which the case was brought before this court, and were then adjudicated.
    At the trial, which was in this court, before Metcalf, J., the parties agreed that the report of the case of Waugh v. Riley, 8 Met. 290, should be taken as evidence in this case. And the plaintiff in error offered evidence tending to show, that the defendant in error at the date of his writ of entry had the entire fee in the premises, and so claimed to hold it. But the presiding judge rejected the evidence, and ordered the writ to be dismissed, subject to the opinion of the whole court.
    
      B. F. Butler, for the plaintiff
    in error. This court has exclusive jurisdiction of all writs of entry, except for the foreclosure of mortgages. St. 1840, c. 87, § 1. And therefore, if the defendant in error was seized in fee of the premises demanded, the court of common pleas had no jurisdiction of the original action. Error will lie, where a court has exceeded its jurisdiction. Walker v. Lyon, 3 Pennsyl. 98; Jordan v. Dennis, 7 Met. 590; Waters v. Randall, 8 Met. 132. If error in fact be shown to exist, a writ of error will always be awarded. Higbie v. Comstock, 1 Denio, 652. And error in fact may be alleged, even against the record. Calloway v. Calloway, 3 Harring. 332. Consent cannot give jurisdiction where the laws do not give it. Want of jurisdiction may be shown at any time. Slacum v. Pomery, 6 Cranch, 221; Jordan v. Dennis, 7 Met. 590; Carlisle v. Weston, 21 Pick. 535; Kennedy v. Terrill, Hardin, 490; Bents v. Graves, 3 McCord, 280; Taylor v. Phillips, 3 East, 155; Roberts v. Monkhouse, 8 East, 547.
    
      T. Hopkinson, for the defendant in error.
   Shaw, C. J.

Error in fact cannot be assigned, where it contradicts the record, and where the matter of fact might have been put in issue and tried, and a fortiori, when it is 'n fact put in issue and tried. 2 Wms. Saund. 101, note» Were it otherwise, it would always be competent for a party, against whom judgment is rendered, to sue out a writ of error, and assign for error, that the facts on which the judgment proceeded were not true, and thus obtain a new trial. Matter of fact, which contradicts the record, is not assignable for error, and therefore the plea in millo est erratum, does not admit the truth of it; it is in nature of a demurrer, and like a demurrer it admits the facts which are well pleaded. But it ' is often and properly filed where it is intended to insist, and in the present case it does in fact insist, that the matter assigned is not legally assignable for error, and that the defendant in error ought not to be drawn into controversy respecting it. Helbut v. Held, 2 Stra. 684; Whiting v. Cochran, 9 Mass. 532.

A recent case was cited by the plaintiff in error, to show that want of jurisdiction is good ground for reversing a judgment. Jordan v. Dennis, 7 Met. 590. But there the want of jurisdiction depended on matter of law, apparent on the face of the record.

In the present case, the error assigned is, that the court had no jurisdiction, because the suit was brought in the court of common pleas by a plaintiff, whose title in fact was not that of a mortgagee, but of a tenant in fee. This not only does not appear on the face of the record, but contradicts it. The plaintiff below counted on his title as tenant in fee and in mortgage, and this fact was denied by the present plaintiff in error, who offered evidence to prove that the then plaintiff was not a mortgagee; yet he recovered judgment in that capacity, which was considered in this court on exceptions. Waugh v. Riley, 8 Met. 290. On both grounds, we think that the fact, that the original plaintiff was not a mortgagee, and that the court of common pleas had no jurisdiction, was not assignable as an error in fact. No other error is assigned. Judgment affirmed.  