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. 34. 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. 38. By the statute 4 Hen. VII., all those who are Real Action. Brasier's 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. ActualEntry. 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 a 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. 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. Tit. 31. c. 2. 46. If a person is prevented, by force or violence, $39. Clerke v. 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, 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. 48. Upon a special verdict in ejectment, it was found that a fine had been levied of the premises in Berrington v. 2 Stra. 1086. Andrews 125. Parkhurst, 4 Brown's question; and that the lessor of the plaintiff entered into the premises with intent to make the demise in Ca.inParl.85. 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 2o. 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 4 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 S. P. Doug. 484. 7 Term Rep. 732. where a fine is levied by a wrong-doer, and not discovered 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 absolutely 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 consequently 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 originally void, could not be made good by any subsequent 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 judgment was affirmed. |