claration in ejectment, did not amount to an entry to avoid a fine, though the defendant should appear to it, and confess lease, entry, and ouster; for there must be an actual entry made, animo clamandi : whereas in an ejectment there is only a fictitious or supposed entry, for the purpose of making a demise, and an actual entry must be made before the time when the demise is laid.

Parkhurst,

2 Stra. 1086.

Andrews125.

4 Brown's

Ca.in Parl.85.

48. Upon a special verdict in ejectment, it was Berrington v. found that a fine had been levied of the premises in question; and that the lessor of the plaintiff entered into the premises with intent to make the demise in the declaration mentioned, but did not then make an actual entry for the purpose of avoiding the fine, but that after the demise laid, the lessor of the plaintiff made an actual entry. It was insisted for the defendants, 1°. That an actual entry was necessary to avoid the fine. And 2°. That the demise could not be laid before the lessor had regained the possession by the actual entry. The Court was of opinion with the defendants on both these points; and on a writ of error in the House of Lords, it was argued for the plantiff, that a fine with proclamations does not, by force of the statute Hen. VII. operate as a bar to conclude strangers, till after five years elapse without entry or action; and therefore the verdict having found that the lessor of the plaintiff made his first actual entry after the demise laid, he thereby avoided the operation of the fine, and was at liberty to lay the demise in his declaration, which is a mere fiction of law, as early as he thought fit after his right accrued, in the same manner as if his title had stood independent of such fine, so rendered ineffectual within the plain intent of the statute and if such entry was not good to maintain this demise, it must follow, that in every case VOL. V. U

where a fine is levied by a wrong-doer, and not disco-
vered till two, three, or four years afterwards, the
intermediate profits between the time of levying such
fine, and the entry of the lawful owner, must be ab-
solutely lost, although the statute gives five years to
enter, and an entry at any time within the five years
purges
the disseisin and the wrong from the beginning,
and brings the person so entering within the saving of
the statute, to all intents and purposes. On the other
side it was said, that an actual entry is necessary to
avoid a fine, before an ejectment can be brought, and
it must also be before the time of the demise; because
a fine is of that high nature, even at common law,
that it dispossesses all persons claiming title, and con-
sequently a lease to found the ejectment upon, cannot
be made till the lessor regains the possession. As to
the entries found by the verdict to have been made
subsequent to the time of the demise, they were of no
use in the present case; for the ejectment being ori-
ginally void, could not be made good by any subse-
quent act; and therefore whatever effect those entries
might have in other respects, they could not make the
lease good. That the word action in the statute
4 Hen. VII. has always been understood to mean real
actions, which were then in use: and it has often been
determined, that the bringing an ejectment is not
sufficient to avoid a fine.

It appears from Sir John Strange's report of this case, that the questions put to the Judges were, 1st. Whether an actual entry was necessary to avoid a fine? 2d. Whether the demise being laid before the time of the first entry, the ejectment could be maintained? To the first question they answered in the affirmative; to the second, in the negative: upon which the judg

ment was affirmed.

49. The entry to avoid a fine must be made by the Inst. 258a. person who has a right to the land, or by some one appointed by him; for a person who has a right of entry, may empower another to enter for him. But if a stranger makes an entry on lands, whereof a fine has been levied, in the name of a person who has a right to the land, without any preceding command or subsequent assent, within five years, by the person having right, it will not be sufficient; for the statute 4 Hen. VII. bars all persons who do not claim within five years; by which means an election is given to all those who have a right, at the time when the fine is levied, to claim or not; and a stranger cannot make this election for them.

Cro. Eliz.

50. A disseisor levied a fine with proclamations, Pollard v. Luttrell, the disseisee not knowing it; and a stranger made an Poph. 108. entry within five years, to the use of the disseisee, but the disseisee did not assent to it till the five years were expired.

561.

Touch. 33.

It was determined by all the Judges, that the assent of the disseisee to the entry, after the five years had expired, was not sufficient to render it valid; because the statute of fines ought to be taken strictly, being made for the purpose of repose and tranquillity. 51. A person entitled to an estate in remainder or 9 Rep. 106a. reversion, expectant on an estate for life or years, or the lord of a tenant by copy of court roll, may enter in the name of the tenant for life, the tenant for years, or the copyholder, to save those particular interests, as well as their own freehold and inheritance: and the entry of those particular tenants will also save the rights of the lord, the remainder-man, or reversioner, on account of the privity of estate which is be tween them. A guardian by nurture or in socage may

Tit. 18, 19,

20.

2 Inst. 518. West Symb. P. 2. 73 a.

Plowd. 359.

Must be followed by an Action.

Plea that the
Parties had

also enter in the name of his ward, to avoid a fine; and such entry will save his right.

52. The entry of one joint tenant, coparcener, or tenant in common, will be sufficient to avoid the effect of a fine as to the other joint tenant, coparcener, or tenant in common.

53. If the estate which passed by a fine is at any time after defeated by entry, the fine will by that means lose all its force and effect, not only with respect to the person who entered, but also with respect to all others, except those claiming by force of an entail. And it is said in the case of Stowell v. Zouch, that if there be tenant for life, remainder for life, remainder in fee, and the first tenant for life aliens, and the alienee levies a fine, the person in remainder for life may enter and defeat the fine; in which case it will not bar the remainder in fee.

54. By the statute 4 Ann. c. 16. § 16. it is enacted, "That no claim or entry to be made of or upon any lands, tenements, or hereditaments, shall be of any force or effect, to avoid any fine levied or to be levied with proclamations, according to the form of the statute in that case made and provided, in the Court of Common Pleas, or in the Courts of Sessions in any of the counties palatine, or in the Courts of Grand Sessions in Wales, of any lands, tenements, or hereditaments; unless upon such entry or claim an action shall be commenced within one year next after the making of such entry or claim, and prosecuted with effect."

55. The proper mode of reversing a fine for any no Estate,&c. defect in the record is, by writ of error. But where a fine is void ab initio, either as to all mankind, or as to some particular persons, its effects may then be avoided by plea.

56. Thus, where none of the parties to a fine have an estate of freehold in the lands whereof it is levied, such fine is totally void as to all strangers, and may be avoided by pleading-Quod partes finis nec eorum aliquis, tempore levationis finis, nihil habuerunt, nec eorum aliquis habuit, &c. Sed quidam I. S. cujus statum ipse habet.

This mode of avoiding a fine appears to have been already established in the time of Bracton :Excusatur enim quis quod clameum non apposuerit, 436 b. scilicet ubi finis ipso jure sit nullus, ut si factus fuit de tenemento quod alius tenuit, ut si ipse qui debuit cla meum apposuisse, vel antecessor suus, fuit in seisina de eadem re, quando finis factus fuit, et non ille vel antecessor suus qui finem allegat.

57. The reason that a fine levied by persons who have no freehold estate in the lands has no effect is, because it divests no estate; those who are entitled to the lands whereof the fine is levied being in possession thereof: and it has been already stated, that ante, e. 13. no estate is barred or affected by a fine unless it is divested out of the real owner.

vol. 2. 122.

58. The plea, quod partes finis nihil habuerunt, might originally have been pleaded by any person who was not a party to the fine. And there is a very long case in the Rolls of Parliament, 14 Edw. III. Rot. Parl. No. 31, in which it was determined that a stranger should be allowed this averment. It has been already ante, c. 11. stated, that by the third saving in the stat. 4 Hen. VII., this plea is allowed to every person not party or privy to the fine; but that it is settled that the issue in tail are comprised under the word privy, and are therefore deprived of this plea.

§ 38.

59. Lord Coke says, that in some cases privies in 2 Inst. 517. blood, and inheritable also, shall have an averment