case Samuel berington plaintiff John Parkhurst and other defendant in error  that may there must be a actual entry to avoid a fine and no ejectment can be  maintain where the demise be lie before the time of such actual entry  judgement of king b affirm the point be thus state in cruise on fine p the  delivery of a declaration in ejectment do not amount to such a entry as will  avoid a fine even though the defendant appear to it and confess lease entry  and ouster for there must be a actual entry make mind clamand whereas in  ejectment there be only a fictitious or suppose entry for the purpose of make  a demise and the entry must be make before the time when the demise be lie see  vent burr Doug and the note at the end of this case No entry be necessary  where the fine be levy without proclamation for the stat h c do not extend to  such a fine and it may be avoid at any time within year Jenkin v Prichard will  the entry to avoid a fine must be make by the person who have a right to the  land or by some one appoint by he for a person who have a right of entry may  empower another to enter for he Inst a the other question in the several book  refer more particular to the lie the demise in action of ejectment strange  viner vol p can and Ann Kely John dorm Esq have three son and two brother live  and two nephew the son of a decease brother and be desirous to settle the  ancient family estate in the male of his name and blood in case there shall be  no issue male of his own son do upon the marriage of his old son sir John  Dornier Bart with Susanna one of the daughter and caheirs of sir Richard brawn  and in consideration thereof and of pound the marriage portion by indenture of  feoff date the that of August make between the say John dorm and sir John dorm  his son and heir apparent of the first part the say Susanna brawn of the  second part sir Robert Jenkinson and sir William child of the three part and  John cave and Thomas Marriott of the four part limit settle and convey among  other land the manor of ShiptonLee and LeeGrange and diverse land tenement and  hereditament the estate and inheritance of the say John dorm and sir John dorm  or one of they in the county of buck subject to a estate in part of the  premise to the say John dorm the father for life to trustee and their heir to  the use follow videlicet to the use of the say sir John dorm and his assign  for year if he shall brown so long live with remainder to trustee to preserve  contingent remainder remainder to the first and other son of the say marriage  in tail male successive remainder as to part of the premise to the trustee for  year for raise daughter portion remainder as to all the premise to the first  and other son of the say sir John dorm by any other wife in tail male  successive remainder to Robert dorm second son of the say John dorm afterward  one of the justice of the court of common plea for year if he shall so long  live remainder to trustee to preserve contingent remainder remainder to the  first and other son of the say Robert in tail male successive remainder to  Fleetwood dorm three son of the say John dorm for year if he shall so long  live remainder to trustee to preserve contingent remainder remainder to the  first and other son of the say brown er p Fleetwood in tail male successive  remainder to the say John dorm and the heir male of his body remainder to  Peter dorm brother of the say John dorm for year if he shall so long live  remainder to trustee to preserve contingent remainder remainder to the first  and other son of the say Peter in tail male successive remainder to Fleetwood  dorm afterward sir Fleetwood dorm another brother of the say John dorm for  year if he shall so long live remainder to trustee to preserve contingent  remainder remainder to the first and other son of the say Fleetwood in tail  male successive remainder to Bennet dorm who be the old son of  a surname of Ariobarzanes dorm decease another brother of the say John dorm  for year if he shall so long live remainder to trustee to preserve contingent  remainder remainder to the first and other son of the say Bennet dorm in tail  male successive remainder to a surname of Ariobarzanes dorm second son of the  say a surname of Ariobarzanes dorm and father of the lessor of the plaintiff  for year if he shall so long live remainder to trustee to preserve contingent  remainder remainder to the first and other son of the say  a surname of Ariobarzanes in tail male successive remainder to the heir of the  body of the say John dorm remainder to the right heir of the say John dorm  there be issue of this marriage one son afterward sir William dorm and one  daughter Susanna who marry Francis Sheldon Esq and by who she have several  child who enjoy other part of the family estate as heir general of John dorm  who make the settlement it happen that the several successive limitation in  this settlement precedent to the estate limit to a surname of Ariobarzanes  dorm the nephew determine in his lifetime by the death of all the prior  remainderman without issue male the last of such estate which subsist be the  term of year vest in Mr justice dorm who die without any issue John dorm the  lessor of the plaintiff and old son of the say a surname of Ariobarzanes dorm  who be force to litigate three year in the court of chancery to obtain a  discovery of the settlement of brown which there be no less than three  duplicate in the hand of the defendant who use all manner of dilatories to  avoid produce it be advice that upon the death of his father which happen on  the d of September he be become seize of a estate tail in the premise by  virtue of the say settlement do in Michaelmas term cause declaration in  ejectment to be deliver to John Parkhurst Esq and sir John fortescue aland Knt  and Catherine dorm and their tenant for the manor of ShiptonLee and LeeGrange  and diverse message land and tenement and also rend and view of frankpledge  with the appurtenance lie in Shipton LeeGrange and Quainton in the county of  buck and also of all manner of tithe grow and renew in ShiptonLee and in  Hilary term follow the say John Parkhurst and his wife sir John fortescue  aland and his wife and Catherine dorm and their tenant make themselves  defendant and enter into the common rule for confess lease entry and ouster  and issue be thereupon join in Michaelmas term the cause come on to be try at  the bar of the court of king bench by a special jury of the county of buck  when the juror find that as to the tithe rend and view of frankpledge in the  declaration specify the defendant be not guilty and as to the trespass and  ejectment in the manor and the residue of the tenement and premise in the  declaration specify they find a special v erdict to the follow effect  videlicet that on the that of August John dorm Esq and sir John dorm be seize  of the premise in the declaration in fee make such deed of settlement thereof  as be above set forth and that livery of seize and possession of the premise  be make to the trustee in due form of law that by virtue of the say feoff and  livery of seize the say trustee afterward on the say that of August enter upon  and be seize of the premise and that after make the say settlement videlicet  on the first day of October a marriage be solemnized between the say sir John  dorm and Susanna that in Michaelmas term in the that year of king Charles two  a common recovery be duly suffer of the premise to the use in the say feoff  and that by virtue of the say feoff livery of seize and recovery the say sir  John dorm on the saint day of December enter into and be possess of so brown  er p much of the premise as be limit to he for the term of year if he so long  live and that the say John dorm Esq afterward and before the say marriage  enter and be seize of so much of the say premise as be limit to he for the  term of his life that on the saint of September the say Susanna dorm die and  that on the d of September sir John dorm brown also die and that he leave  issue by the say Susanna sir William dorm Bart his only son and heir at law  who attain his age of and that on the d of September the say sir William enter  into the premise so limit to the say sir John dorm his father for year if he  so long live and be seize thereof in fee tail that on the saint of October  John dorm Esq also die seize of such his estate in the residue of the premise  and leave the say sir William dorm his grandson the heir male of his body and  also his heir at law and that on the d of October the say sir William dorm  enter into all the premise whereof the say John dorm his grandfather die seize  and be seize thereof as of fee tail and thereby become seize of all the  premise in the declaration specify that John dorm Esq have three son videlicet  sir John dorm Robert dorm and Fleetwood dorm in the say indenture of feoff  name and that after the death of sir John dorm and in the lifetime of sir  William dorm videlicet on the d of October the say Fleetwood dorm die without  issue male and that on the that of September Peter dorm in the say indenture  of feoff name one of the brother of the say John dorm Esq die without issue  male and that on the that of September Fleetwood dorm also name in the say  feoff and another brother of the say John dorm Esq die without issue male and  that on the saint of November Bennet dorm Esq name in the say settlement and  one of the son of a surname of Ariobarzanes dorm decease which say  a surname of Ariobarzanes be one of the brother of John dorm Esq die without  issue male and that on the that of march sir William dorm die seize of the  premise without issue male that after sir William dorm death videlicet on the  that of march Robert dorm enter upon the say premise and be possess thereof  for the term of year if he so long live and have issue male Fleetwood dorm his  only son and that in easter term in the that year of king George I a fine with  proclamation be levy of the premise between dorm Parkhurst Esq and John  Parkhurst jun Esq and the say Robert dorm and Fleetwood his son and that in  the same easter term a common recovery be also suffer of the premise by the  say Robert and Fleetwood with double voucher that on the d of June Fleetwood  dorm the son die without issue male and that the say Robert dorm the father  survive he and afterward on the that of September the say Robert dorm the  father die without issue male and leave issue four daughter videlicet mary  dorm dame Elizabeth wife of the say sir John fortescue aland Ricarda the wife  of the say John Parkhurst and the say brown Catherine dorm and that after the  death of the say Robert dorm the say sir John fortescue aland and Elizabeth  his wife the say John Parkhurst and Ricarda his wife and the say Catherine  dorm enter into the premise and receive the profit thereof and afterward in  easter term levy a fine with proclamation of the say premise that on the d of  September a surname of Ariobarzanes dorm the nephew of the say John dorm Esq  die leave issue male of his body John dorm the lessor of the plaintiff and  that before the death of the say last mention a surname of Ariobarzanes dorm  the say term of year by the say foeffment limit for raise daughter portion be  duly surrender and extinguish that on the that of September the say John dorm  the lessor of the plaintiff enter into the premise with intent to make the  demise in the declaration mention to the say Samuel berington in order to  enable the say berington to bring this action of ejectment but do not then  make a actual entry for the purpose of avoid the say fine and thereupon the  say John dorm the lessor become seize thereof as the law require and be so  seize he afterward demise the premise to the say berington as in the  declaration state that the say John dorm the lessor of the plaintiff make  three several brown er p actual entry upon the say premise claim title thereto  videlicet the first entry on the that of January the second on the that of  October and the three entry on the that of October the occasion of find this  special verdict be that upon the trial two point be insist upon for the  defendant I that the remainder limit by the settlement under which the lessor  of the plaintiff claim be bar by the fine levy by Robert dorm and Fleetwood  his son and the recovery suffer by Fleetwood the son in two that though the  plaintiff shall not be bar by this fine and recovery yet by it and by the fine  of the daughter of Robert dorm in all person who be out of possession be bar  until a actual entry make or at least so dispossess that they can not bring a  ejectment and in this case the actual entry find be subsequent in time to the  demise in the declaration and therefore void in regard that by law no person  can make a good lease who be out of possession in Hilary term and in Hilary  term this special verdict be argue in the court of king bench and though both  the above point be speak to by the counsel yet as the defendant be entitle to  judgement if the court shall be of opinion with they upon either point and the  court be unanimous of opinion that a actual entry be necessary to be make by  the lessor of the plaintiff before the saint of October the date of the demise  and no such entry have be make the brown court therefore give judgement for  the defendant upon that point without determine the other to reverse this  judgement a writ of error be bring in parliament and on behalf of the  plaintiff in error it be insist f Chute h leg that the lessor of the plaintiff  upon the death of a surname of Ariobarzanes dorm his father on the d of  September become seize of a estate tail in possession in the premise in  question and be therefore at liberty to lie the fictitious demise in the  declaration at any time after his right accrue that the defendant be no way  entitle to any estate in the premise by virtue of the say settlement and that  the lessor of the plaintiff be neither party or privy to the fine levy by they  in easter term after his right to the premise accrue nor can he be presume to  be cognizant of the time of levy it that his title to a estate tail in the  premise be clear find by the special verdict the several intermediate  remainderman between he and John dorm Esq who make the settlement appear upon  the record to have several die without leave any issue male of their  respective body that a fine with proclamation do not by force of the statute  Henry VII operate as a bar to conclude stranger till after five year elapse  without entry or action and therefore the verdict have find that the lessor of  the plaintiff make his first actual entry on the that of January and before  the declaration in his action he thereby avoid the operation of the fine and  be at liberty to lie the demise in his declaration which be a mere fiction of  law as early as he think fit after his right accrue in the same manner as if  his title have stand independent of such fine so render ineffectual within the  plain intent of the statute and if such entry be not good to maintain this  demise it must follow that in every case where a fine be levy by a wrongdoer  and not discover till two three or four year afterward the intermediate profit  between the time of levy such fine and the entry of the lawful owner must be  absolute lose though the statute give five year to enter and a entry at any  time within the five year purge the seize and the wrong from the beginning and  bring the person so enter within the save of the statute to all intent and  purpose on the other side it be say d rider I strange that a actual entry be  necessary to avoid a fine before a ejectment can be bring and it must also be  before the time of the demise because a fine be of that high nature even at  commonlaw that it dispossess all person claim title and consequent a lease to  find the ejectment upon can be make till the lessor regain the possession as  to the entry find by the verdict to have be make subsequent to the time of the  demise they be apprehend to be of no use in the present case for the ejectment  lease be original void can not be make good by any subsequent act and  therefore whatever effect those entry may have in other respect they can not  make the lease good that the word action in brown the statute Henry VII have  always be understand to mean real action which be then in use and it have  brown er p often be determine that the bring a ejectment be not sufficient to  avoid a fine it be however object that Robert dorm be only tenant for year and  the freehold be limit to trustee for his life to support the contingent use  with remainder to his first and other son in tail male the fine levy by Robert  and Fleetwood who be the next remainderman in tail be void or at least no  freehold pass thereby and consequent the recovery suffer by Fleetwood the son  of Robert be also void for want of good tenant to the precipe it be necessary  they shall be tenant of the freehold but this objection depend upon a  supposition that there be then a estate of freehold in the trustee and be  beside a very unfavourable objection because the remainderman in tail for who  benefit they be make trustee join in the fine and recovery it be apprehend  that the freehold be then in Fleetwood the son of Robert dorm and not in the  trustee the word of the settlement be and from and after the death of the say  Robert dorm or other soon determination of the estate limit to he for year as  aforesaid then to the use and behoof of the trustee and their heir for and  during the natural life of the say Robert Dormer A subsequent and very  material question between these party arise upon this limitation and be twice  solemnly determine in favour of the present plaintiff in error see Parkhurst v  smith post title remainder can now take all the word together they be so  absurd that they can be of any effect but take they distributive in the first  place the limitation be from and after the death of Robert to the trustee for  the life of Robert which be impossible in the next place suppose the word from  and after the death of Robert be to be reject then it will rest upon the word  or other soon determination of the estate limit to he for year and then as it  be quite uncertain whether that term of year will determine before the death  of Robert the limitation to the trustee will at the most be but a contingent  one and if so then as Fleetwood the next remainderman be in be at the death of  sir William dorm his become a vest remainder and he have thereby a estate of  freehold to enable he to make good tenant to the precipe but there be no  reason to construe this limitation so favourable for though the ancient method  be to limit a estate for year to the father determinable on his death then to  trustee for the life of the father to support the contingent use and then to  the first and other son of the father in tail yet that method tend so much to  perpetuity which be odious in the law and be find so inconvenient that the  constant method now be to limit a estate to the father for life and have the  limitation be so in the brown present case there can have be no doubt but the  recovery have be well suffer beside the present limitation can by any rule of  construction whatever be extend beyond the word of it and if so the recovery  be well suffer and the right of the lessor of the plaintiff bar and in this  case the daughter of Robert dorm in who favour the judgement have be give be  the granddaughter of John dorm who make the settlement and the heir also of  Robert and of Fleetwood the tenant in tail whereas the lessor of the plaintiff  be only a collateral relation and the most remote remainderman in the deed  after hear counsel on this writ of error and the unanimous opinion of the  judge be deliver upon certain point of law to they propose it appear from  strange report of this case vol that the question put to the judge be saint  whether a actual entry be necessary to avoid the fine d whether the demise be  lie before the time of the first entry this ejectment can be maintain to the  first question they answer in the affirmative to the second in the negative it  be order and adjudge that the judgement give in the court of king bench shall  be affirm and that the record shall be remit and it be further order that the  plaintiff in error shall pay to the defendant in error pound for their cost  jour vol p brown er p