Hart's Case, Carrington's 1 Roll. Ab. 788. Cro. Eliz. 151. Molton's Case. Cockman v. Farrer, T. Raym. 461. T. Jones, 181. Vide Tit. 36. c. 8. Writ of false Writ of ante, c. 4. right in, or makes a feoffment of part of the land, he may still reverse the fine, as to the remainder. 26. If an infant brings a writ of error to reverse a fine, levied by him during his infancy; and on inspection, his non-age is recorded by the Court; but before the fine is reversed, he levies another fine, the second fine will prevent him from reversing the first; because the second fine, having entirely barred him of all right to the lands, must also deprive him of all remedies to recover them. 27. If a tenant in tail levies an erroneous fine, and afterwards levies another erroneous fine, and dies, and the issue in tail brings a writ of error upon the first fine, and the defendant pleads in bar the second fine, and after the issue brings a writ of error upon the second fine, and the defendant pleads in bar the first fine, by which the right is bound; the plaintiff, may reply upon the first writ, that the second fine is erroneous; and upon the second writ, that the first fine is erroneous; and so shall be helped. 28. In a writ of error to reverse a fine, the defen dant cannot plead in bar the same fine which is attempted to be reversed; and five years nonclaim. Quia non valet exceptio istius rei, cujus petitur dissolutio. 29. A common recovery will bar the issue in tail from bringing a writ of error to reverse a fine. 30. A writ of error can only be brought to reverse a judgment in a court of record; for to amend errors in a base court, which is not of record, a writ of false judgment lies, returnable in the Court of Common Pleas. 31. Where a fine is levied in the Court of Common Pleas, of lands held in ancient demesne, the lord 98. 2 Inst. may reverse it by writ of deceit and such writ may be brought by the lord against the parties to the fine, 216. 2 Wils. R. 17. and the cestui que use; by means of which he will Rex v. Mead, obtain judgment, not only for damages, which are usually remitted, but also to recover his court and jurisdiction over the lands, and to annul the former proceedings. 290. 32. If a fine be levied of lands, whereof part is Anon.1 Leon. held in ancient demesne, and part frank fee, and the lord in ancient demesne brings his writ of deceit, the Court of K. B., upon a view of the transcript of the record, and proof that part of the lands is ancient demesne, will reverse the fine as to that part. They will not, however, order the fine to be taken off the file, as in cases where the whole fine is reversed, because it will remain good as to the lands which are frank fee; but will order a mark to be made on the fine, to show that it is cancelled, as to the lands held in ancient demesne. 32. The lord of a manor of ancient demesne is not barred of his writ of deceit by the death of any of the parties to the fine. 33. A writ of deceit was brought by the lord of Zouch v. a manor of ancient demesne, to avoid a fine levied of Thompson, 1 Ld. Raym. lands held of him in ancient demesne, as of the said 177. manor. It was argued for the defendant, that the cognizor and cognizee being both dead, the lord could not now maintain an action of deceit, because it was only a personal action, and therefore died with the person. But it was resolved, that a writ of deceit did lie in such a case, against the heir of the cognizor or cognizee, because it was a real deceit, and did not resemble the personal deceit of non-summons: and if the law were otherwise, the lord of a manor of ancient demesne would be for ever barred of his right of in 10 Rep. 50 a. 1 Bac. Ab. 8°. 175. Motion. 266. heritance, in case the parties to such a fine should happen to die the day after it was levied. S4. Where a fine levied in the Court of Common Pleas, of lands held in ancient demesne, is reversed by writ of deceit, it is said to be doubtful whether the fine shall still hold good between the parties. Some say it does not become entirely void, nor is the cognizor restored to his land against his own solemn acknowledgement on record; especially since the lord, who brings the writ of deceit, seeks nothing more than to restore the land to the privileges of ancient demesne. Others hold, that the writ of deceit and the reversal thereon entirely avoids the fine, and restores the cognizor to the possession of the land; for the cognizance, though on record, shall be no estoppel; because it was made in a Court which had no jurisdiction, and therefore the whole proceedings were coram non judice. 35. In some cases the Court of Common Pleas 2 Show. Ca. will vacate and set aside a fine upon motion, although the King's silver has been paid and the fine completed, without putting the parties to the trouble and expence of a writ of error: in the same manner as they would set aside a judgment, obtained by trick or surprise. Hutchinson's Case, 2 Lev. 36. Modes of avoiding the 36. Thus, where it evidently appeared to the Court that a husband had prevailed on his wife to levy a fine, she being but sixteen years old, the fine was vacated, and the exemplification brought into Court and delivered up. The commissioners were also ordered to be prosecuted. 37. Although a fine can only be reversed by a writ Effects of a of error, yet its effects may be avoided in several Fine. other ways. At common law there were four modes Plowd. 359. of avoiding a fine; two by matter of record, and two 2 Inst. 518. 2 Black. Rep. by acts in pais. Those by matter of record were, a 994. real action commenced within a year and a day after the fine was levied; and an entry of a claim on the record of the foot of the fine itself, in this manner: Talis venit et apponit clameum suum. Those by acts in pais were, a lawful entry upon the land, by the person who had a right; and in case that could not be done, then a continual claim. Brasier's 38. By the statute 4 Hen. VII., all those who are Real Action. affected by a fine must pursue their title by way of Case, 2 Leon. action or lawful entry; so that a claim entered on the 53. record of a fine would now be ineffectual. An action commenced within five years after a fine has been levied, will be sufficient to avoid it, although judgment be not obtained within seven years after: but such action must be prosecuted with effect; for if 1 Vent. 45. an action be commenced within the time prescribed, and afterwards discontinued, it will not avoid a fine. 39. The suing out a writ, and delivering it to the Fitzhugh's sheriff, does not amount to a pursuing of a claim or Case, 3 Leon. title by way of action, unless the writ be returned by the sheriff. 221. 40. The action mentioned in the statute 4 Hen. Comb. 249. VII. must be a real action, so that an ejectment will not avoid a fine. 41. A bill in Chancery is not such a claim under 1 Cha. Ca. the statute 4 Hen. VII. as will avoid a fine. There 268. 278. 2 Black. Rep. is, however, an exception to this rule in the case 994. where a fine has been levied of a trust estate; because no entry by the cestui que trust, nor claim, or other legal act, will be sufficient to avoid the fine, or suspend the bar arising from the non-claim: it can only be by a bill in Chancery, as the claim to avoid a fine Actual Entry. ought to be of a nature corresponding with the estate. 42. A fine may also be avoided by an actual entry made on the lands whereof the fine has been levied ; Plowd. 358. provided the person who seeks to avoid the fine has å right of entry; for if the right of entry be taken away, and a right of action only remains; as where a fine ante, c. 12. operates as a discontinuance of the estate, there, an § 16. actual entry on the land will not avoid the fine, but a real action must be brought. 1 Vern. 213. 2 Wils. R. 45. Tit. 31. c. 2. § 38. Anon. Skin. 412. Tit. 31. c. 2. $39. Clerke v. 43. No entry is necessary where the fine is levied without proclamations, for the statute 4 Hen. VII. does not extend to such a fine; and therefore it may be avoided at any time within twenty years. 44. With respect to the mode of making an entry, it must be on the land, and with an intention of claiming the freehold, against the fine. 45. A fine having been levied, the lessor of the plantiff proved, that at the gate of the house in question, he said to the tenant, he was heir to the house and land, and forbade him to pay more rent to the defendant: but he did not enter into the house when he made the demand. On which it was agreed, that the claim at the gate was not sufficient. Then it was proved that there was a court before the house, which belonged to it, and though the claim was at the gate, yet it was on the land, and not in the street; and that was held good. 46. If a person is prevented, by force or violence, from entering on lands, whereof a fine has been levied, he must then make his claim as near the land as he can; which in that case will be as effectual as if he had made an actual entry. 47. It was adjudged by the Court of King's Bench 1 Saund. 319. in the reign of Cha. II., that the delivery of a de Pywell, |