49. The entry to avoid a fine must be made by the Inst. 258 a. 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.

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.

561.

Touch. 33,

51. A person entitled to an estate in remainder or 9 Rep. 106 a. 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 between 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 au 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 clameum 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, c. 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

pa. 13.,

Dormer v.
Parkhurst,
Tit. 36. c. 2.

Carhampton v. Carhampton, Irish

against tlre fine, notwithstanding the stat. 4 Hen. VII.; and therefore if tenant in tail accepts a fine sur cognizance de ceo, &c., the issue in tail, that is privy and heir in tail, shall aver continuance of possession in the father, for it stands well with the fine. And so, in the case above, if tenant in tail had granted and rendered the land to the conuzor, the issue in tail might have averred continuance of possession in the father; for the fine was executory, and nothing vested in the conusor till execution.

60. It is said in the Touchstone, that the cognizor or cognizee of a fine must have an estate of freehold in possession, reversion, or remainder; but this is a mistake, for if a person, having only an estate in remainder or reversion, levies a fine, it may be avoided, on the ground that partes finis nihil habue

runt.

61. Lord Carhampton being tenant for life, remainder to his wife for life, remainder to his eldest Term R.567. son in tail, the eldest son levied a fine in the lifetime of his father, and while his father was in possession. On the death of Lord Carhampton his son entered, and continued in possession for seven years. Lady Carhampton then brought an ejectment against her son, to which he pleaded the fine and non-claim. On the trial, two exceptions were taken to the Judge's opinion: first, because he admitted evidence to prove that the defendant had no estate in possession in the lands when he levied the fine: secondly, it being proved that the estate was in the possession of the defendant's father when the fine was levied, because he held that no entry was necessary to avoid the fine, or to enable the plaintiff to bring the eject

ment.

Lord Carleton delivered the opinion of the Court

Perkins,

3 Mau. & Sel.

of Common Pleas, that the fine was no bar, because Doe v.
the defendant had no estate in the lands; and that
the plaintiff might maintain an ejectment, without 271.
making an entry.

Bos. & Pul.

62. Richard Rowe devised all his estates to Rowe v. Power, Richard Rowe his son for life, and after his decease Dom. Proc. to the heirs of his body in tail, and for default of 1805. such heirs, to his three daughters and their heirs. N.R.vol.2.1. Richard Rowe the son, by a deed dated in 1724, gave, granted, assigned, and set over to his mother, the possession of the full third part of all the premises, to hold to her for her life, as if she had been in possession of the same by virtue of a writ of dower; and livery of seisin was given to the widow according to this deed, who thereupon entered and became seised of the undivided third part of all the lands contained in the said deed, and continued so seised till her death, in 1759. Richard Rowe the son, in 1730, levied a fine sur cognizance de droit come ceo, &c. with proclamations, of the whole of the premises, and suffered a common recovery thereof, and died without issue, having devised away all the estate to a stranger. The son of the survivor of the three sisters brought an ejectment for the recovery of an undivided third part of the estate: to this the defendant, the devisee, pleaded the fine, and five years non-claim.

The question was, whether this fine and non-claim was a bar to the plaintiff; and the Judges of the Court of Exchequer in Ireland held that it was not. Upon a writ of error in the Exchequer Chamber of Ireland, the judgment was affirmed.

Upon a writ of error to the House of Peers, it was contended, that the assignment of dower was