void, and therefore the widow took no estate under it; so that Richard Rowe being seised of the freehold, the fine operated on the whole estate, and not on two-thirds of it only. On behalf of the defendant in error it was said, that as Richard Rowe the son had nothing but an estate in remainder in the third assigned to his mother in dower, the fine with respect to this third was within the exception, quod partes finis nihil habuerunt. For this was a fine sur conuzance de droit, &c. which always imported an estate in possession in one of the parties, which must be at the least an estate of freehold, as a fine partaking of the nature of a real action could not be levied of a chattel interest; and there were other species of fines for passing freehold interests in remainder or reversion. A party therefore insisting upon a fine sur conuzance de droit, &c. with non-claim, as a bar to a stranger, was bound, in answer to the exception quod partes finis nihil habuerunt, to show that either of the parties had such an estate as could qualify him to levy a fine of that description, that was, at the least an estate of freehold in possession. It was the very issue, knit by the express words of the plea, quod partes finis nihil habuerunt ut de libero tenemento. Co. Ent. 632 a. Co. Ent. 632 a. So since the statutes of pernors of profits, the entry had always been quod partes finis nihil habuerunt, nec in possessione, nec in usu. And the pleading went on, sed quidam A. B. fuit seisitus tempore finis. The following question was put to the Judges"Whether the fine was a bar to the plaintiff's title." Lord Ch. Just. Mansfield delivered their opinion. He said the case depended on the effect of the deed, by which the son gave to his mother one whole un divided third of the lands. It was admitted throughout the whole argument for the plaintiff, that if this deed operated as an assignment of dower, the fine was no bar; and this was admitted, because in the case it was stated that Richard Rowe, who levied the fine, had no seisin in the premises: he had no freehold in the land as to one third, which was given instead of dower by the assignment of the deed of 1724, if that was a good assignment. With regard to that one third, a fine could have no operation as against strangers; supposing it to be well assigned by way of dower, it could have no other effect than that of merely passing, by way of grant, the remainder. By statute, the fine barred the issue in tail, and made the estate descend as a fee, so long as there was such issue; but the fine could not affect the precedent estate of the widow, if the assignment of her dower was good. If therefore the deed had the effect of an assignment of dower, there was an end of the bar. He then stated that the assignment of dower was good, and transferred the freehold to the widow ; and concluded, that the Judges concurred with him, that the fine did not operate as a bar. The judgment was affirmed. § 36. 63. In the case of a trust estate, the plea quod ante, e. 10. partes finis nihil habuerunt, is not allowed by the Court of Chancery, as has been already shown. 61. By the common law, a fine might be avoided Averment of on account of any fraud in the parties who levied Fraud, it. Thus Bracton says,-Excusatur etiam quis quod 436. b. Hubert's 12 Rep. 123. Co. Read. 7. 5 Rep. 68 b. S. C. Cro. ante, c. 2. $62. Lords' Journ. 12 Car. 2. 65. In 29 Eliz. one Hubert was convicted in the Star Chamber, upon a bill exhibited against him for procuring one Webster to acknowledge a fine in the name of Alexander Gillibrand, who was then beyond sea. The sentence was, that he should be fined and imprisoned; and that the fine thus levied should be avoided, if it could be so done, by entering a vacat on the roll, or otherwise, as the justices of the Common Pleas should best approve and if it could not be so made void, that then Hubert, by fine or otherwise, as Gillibrand might devise, should reconvey the land to him and his heirs. 66." Lord Keeper Egerton said he had always noted this difference. If one of my name levies a fine of my land, I may well confess and avoid this fine, by showing the special matter; for that stands well with the fine. But if a stranger who is not of my name levies a fine of my land in my name, I shall not be received to aver that I did not levy the fine, for that is merely contrary to the record; and so it is of all reconusances, and other matters of record. But I conceive, when the fraud appears to the Court, as here, they may well enter a vacat on the roll, and so make it no fine; although the party cannot avoid it by averment, during the time that it remains as a record." 67. Soon after the Restoration, doubts were enter tained respecting the power of Parliament to set aside a fine obtained by force and fraud. A bill having been brought into the House of vol.11.p.191. Lords to vacate certain fines unduly procured to be levied by Sir Edward Powell and Dame Mary his wife, the House commanded the Judges to deliver their opinions thereon in point of law. The Lord Chief Justice of the King's Bench delivered it as his opinion, and that of all the rest of the Judges, to be, "That they did not find by any record or precedent in their law-books of any fine which had been perfected, that had been vacated for fraud or force in Parliament, or any other place." The question was then put, whether the fine was obtained by force; and it was resolved in the affirmative. The bill passed, but the following protest was entered, signed by Id. pa. 209. Lord Chancellor Hyde and several other Lords, "That fines are the foundations of the assurances of the realm, upon which so many titles depend, and therefore ought not to be shaken; nor hath there any precedent occurred to us wherein any fines have been vacated by judgment or act of parliament, or otherwise, without consent of the parties; the eye of the law looking upon fines as things always transacted by consent, and with that reverence, that no averment whatsoever shall be against them when they are perfected." In the House of Commons Commons counsel were heard for and against this bill; and the Jour, vol. 8. House being satisfied that they had full power and 13 & 14 jurisdiction of the cause, the bill passed. pa. 344. Car. 2. c.27. Jenk. 254. 68. A fine may also be avoided by an averment 3 Rep. 80 a. of fraud, in consequence of the statute 27 Eliz. c. 4., where it appears to have been levied to secret uses, Tit. 32. c. 26 for the purpose of deceiving purchasers: or by an & 27. averment of usury, under the statute 13 Eliz. c. 8. Equity. 69. Although a fine duly levied is as effectual and Courts of binding in a court of equity, as in a court of law; because it is one of the common assurances of the realm, and was originally instituted for the purpose of securing those who were in possession of lands against all claims whatever; yet if any fraud or undue practice appears to have been used in ob Day v. Hun- taining the fine, the Court of Chancery will then regate, 1 Roll. lieve against it, as much as against any other convey. Rep. 115. Welby v. ance; for though it might be extremely improper Welby, Tothill, 99. and inconvenient to admit of an averment in a court of common law against a fine obtained by fraud, because it would be dangerous to permit the evidence `of a record to be questioned in any case whatever, yet as there was a method in which relief might be given in cases of this kind, without contradicting the principles of the common law, it was highly proper that a court of equity should adopt it; and the Lord Chancellor appears to have exercised this jurisdiction as early as the reign of Queen Elizabeth. 70. The Court of Chancery however does not absolutely set aside a fine so obtained, nor does it send the party aggrieved to the Court of Common Pleas to ante, c. 10. get it reversed; but it considers all those who have §,32. taken an estate by such fine, with notice of the fraud, as trustees for the persons who have been defrauded; and decrees a reconveyance of the lands, on the general ground of laying hold of the ill conscience of the parties, to make them do that which is necessary for restoring matters to their former situation. With respect to any technical error in a fine, or irregularity in the commissioners who took the acknowledgment 4 Bro. Parl. of it, these are matters only cognizable in the Court of Common Pleas; because a fine being of the same nature as a judgment, is properly examinable in that court only where it is entered. Clark v. Ward, Prec. in Cha. 15. Ca. 70. St. John v. 1 Ab.Eq.259. Wright Tot. 101. 71. The plaintiff being simple, was drawn in to levy a fine of his lands. It was ordered that the lands should be re-assured, if the defendant did not pay a valuable consideration; or if he failed of payment thereof, then the said lands should be re-assured, |