Berrington on the demise OF dorm against Parkhurst and other a actual entry be  necessary to avoid a fine the demise in ejectment must be lie subsequent to  that entry SC stram bro p c a ejectment be bring on a demise make I October to  hold from September then last for twenty year and upon not guilty plead a  special verdict be find and the case be in effect this John dorm Esq and sir  John dorm his son and heir apparent be seize of the land in question in fee by  feoff date August and common recovery convey the premise to trustee and their  heir part thereof to be to the use of sir John dorm for ninetynine year  determinable on his life and after his death or other soon determination of  the estate limit to the say sir John dorm to the use of the say trustee during  the life of sir John dorm to preserve the contingent use and after his decease  to Susanna brown the intend wife of sir John dorm for her life for her  jointure and as for the rest of the premise to the use of John dorm for his  life remainder to the use of sir John dorm for ninetynine year determinable on  his life and after the determination of the say several estate all the premise  be limit to the use of the first and other son of sir John dorm on the say  Susanna in tail male and after several other use foe the use of Robert dorm  second son of the say John dorm for ninetynine year if he shall so long live  and from and Andrews after the death of the say Robert dorm or other soon  determination of the estate herein limit to the say Robert dorm for ninetynine  year as aforesaid to the use of sir r I and sir W c the trustee and their heir  for and during the natural life of the say Robert dorm upon trust to support  contingent remainder and for that purpose to bring action and make entry as  occasion shall require but to permit the say Robert dorm and his assign to  take the rend and profit thereof during his natural life and after the end or  other soon determination of the say term to the use of the first and other son  of Robert dorm in tail male and after several other remainder which be now  spend to the use of a surname of Ariobarzanes dorm the father of the lessor of  the plaintiff for ninetynine year determinable on his life with remainder to  the trustee to preserve contingent remainder and to the first and other son of  a surname of Ariobarzanes in tail male as before remainder to say John dorm in  tail general remainder to his heir and assign easter term Robert dorm who be  then possess of the premise for ninetynine year determinable on his life all  the precede limitation be spend and Fleetwood his only son levy a fine of the  say premise whereupon a recovery be suffer to the use of Robert in fee June  Fleetwood son of Robert die without issue September Robert die leave four  daughter only who with their Andrews er p husband one of who be Mr justice  fortescue aland thereupon enter into the say premise and easter term the say  daughter and their husband levy a fine of the say premise Andrews September  a surname of Ariobarzanes dorm die leave issue John dorm his old son and the  mesne remainder be spend September the say John enter into the say premise to  make the demise in the declaration and in January be actual enter into the  premise claim the same as his estate and freehold the question in this case be  whether the estatetail which John dorm the lessor be entitle to under the  settlement at the death of a surname of Ariobarzanes his father be bar either  by the fine levy by Robert and his son Fleetwood and the recovery suffer  thereupon or by the fine levy by the daughter of Robert and their husband  suppose that the lessor have a right to the premise whether he have pursue the  proper method for recovery thereof by bring this ejectment and whether this  action be maintainable as the day of the demise be lie before his actual entry  for avoid the last fine and it be argue last Hilary term by Mr Bootle for the  plaintiff and sergeant wright for the defendant and this term by Mr Chute for  the plaintiff and solicitor general strange for the defendant it be argue for  the plaintiff that no act have be do sufficient to defeat the lessors right  for as to the first fine consider this as levy by Robert dorm only it can have  no manner of operation because he be but tenant for year and consequent as he  have only a chattel interest and a fine be in nature of a real action the fine  nil service and be a mere nullity Saffyns case   b a   b Hardr lev SC vent and  it can be regard as a fine find on a seize because it be not find that Robert  be out of possession but the contrary Litt sect neither can this fine have any  effect consider as levy Andrews by Fleetwood for the same reason as be before  mention videlicet because the freehold be in other person and he have only a  remainder expectant there on for the trustee have a estate paramount and prior  to that of Fleetwood and therefore their estate can not be bar or displace by  his fine it be impossible that a discontinuance shall be wrought by one who be  not privy in estate Litt sect   a   side and the warranty in the fine be not  in the least material because it do not descend on the present lessor this  fine therefore be void because part Finis nothing to have and no estate be  thereby divest or displace it be to be throw out of the case as entire  immaterial and as the recovery be suffer thereon this must drop too because if  the fine be void there can be no good tenant to the praecipe the freehold  still remain in the trustee for support the contingent remainder the next  thing to be consider be the fine levy by the daughter of Robert and their  husband who have no manner of claim under the settlement and the legal  consequence thereof now all the effect which a fine can possible have must be  either by way of bar or of discontinuance it be plain that this fine can work  by way of bar it be express find that the lessor enter into the premise within  five year after the levy of it accord to the statute of h c and the present  action be bring within one year after the entry as be require by a c neither  can it work a discontinuance because the defendant without any right or colour  of title under the settlement enter into the premise whereby they become  disseizors and gain the entire fee Litt sect their act therefore can amount to  a discontinuance for to make this there must be a estate divest   light b and  this be impossible in the present case as there be no estate leave in the  disseizee and none can divest a estatetail but one who be once seize thereof    light m b b sect whereas here the lessor be entitle to a estatetail which the  cognisors be utter stranger to and in this Andrews case the warranty can make  no discontinuance because that can only discontinue the estate of he on who it  descend to the second point it be argue that as the lessors right of entry  still continue for the reason before mention he may bring a ejectment and lie  the day of his demise at any time subsequent to the seize and to the accrueing  of his title in order to recover the mesne profit and though the day of the  demise be here antecedent to the lessors entry yet this action be maintainable  because the entry be not Andrews er p necessary to entitle he to the action  but only to preserve his right of entry and as this ejectment be bring within  five year after the fine and consequent the fine have no effect there be no  need of prove any entry the find therefore of the time when the lessor enter  be to be reject a circumstance quite immaterial for the save of a grant or  statute be to be consider as part thereof cro Elizabeth pl cart and consequent  when the lessor prove himself to be within the save it be sufficient as he be  thereby take out of the statute and it appear that at the time of the demise  he have a estate in the premise the word save imply the existence of the thing  save upon this verdict he have a complete title and a verdict will sometime  cure a fatal mistake in the declaration even where the realty be concern Sav  it be also material that in ejectment the demise be only a fiction in law and  a matter in pais between the lessor and lessee and in this case it work a  estopple between they because it be for twenty year it must be by deed here be  also a confession of lease entry and ouster and as the lease must be make on  the land the party admit by this confession that the lessor be then in  possession and be conclude hereby beside by the lessors entry he be remit and  consequent must be consider by relation as have be in possession ab beginning  all tortuous and injurious act do during the seize be thereby purge   a b hob  and by the same reason it make good all the mesne act do by the disseizee  except such as be void which Andrews indeed will not be validate thereby   b  it be also proper to be consider whether a ejectment be not a proper action  within the statute of h for avoid a fine now former the use of ejectment be  only for a term or to recover his term where his lord eject he and afterward  they be use upon a ejectment by a stranger but in the time of Lord dyer they  begin to be bring in the place of other real action and have ever since be use  accord hale preface to roll Abr it be therefore reasonable that this shall be  take to be a action within the meaning of the Act accord to the old rule ad  she who often to fall upon jura adapta for law be always to be construe accord  to the exigency of the time and be often take to extend to remedy which be not  use at the time of make they but be substitute in the place of such as be  specify therein so the e c which give a action of trespass to executor de good  carry away though it do not in the least savour of the realty yet it extend to  ejectment   b and a action of trover will also lie within that statute though  it be not then use but be afterward introduce and substitute in the place of  detinue and trespass cro Elizabeth and even in criminal matter act of  parliament have be take by equity to extend to case not specify in the statute  where they have be within the mischief t Jones another rule be that law ought  to be so expound as tend most effectual to advance the remedy institute and  suppress the ill provide against by they but if a ejectment which be hasty  remedy and a easy and beneficial method for recover of possession and ought  therefore to be favour be not to be take as include in this Act the injurious  method of gain estate by disseizins fine and nonclaims where there be no right  will become more effectual especial as the generality of people can be suppose  to know the difference between real and mix action and that a ejectment be not  within the Act beside the statute be very general and the word action which be  there use comprehend a Andrews ejectment though it be a possessory action as  well as any other and in ejectment the right and title to land be try all one  as in real action and they have exact the same effect the reason of the Act in  require a action to be bring in five year be also full answer by a ejectment  that be only that a right to land may not lie dormant for a long time and  start up afterward to the prejudice of purchaser and it have be allow as  sufficient to save the time upon the statute of James of limitation because it  answer the purpose of real action in be notice equal with those to the tenant  in possession and last it be say there be no case where it be determine that a  ejectment at this time of day be not comprehend within the Act on the other  side it be argue that the fine levy by Robert though he be tenant for year  only be not void but voidable only by entry or action and the exception quod  part Finis nothing to have c imply that it must be avoid by Andrews er p  andrews hilary term geo two proper plead in a action such fine be certain good  by conclusion between the party fine levy and though nonclaim will not prevent  stranger from take advantage of the above exception more yet such fine be a  bar till it be proper avoid as to the join of the remainderman Fleetwood in  this fine suppose a intermediate estate of freehold in other this will be of  no avail but as the limitation to the trustee be here pen the freehold be in  Fleetwood and not in the trustee for the remainder limit to they be either a  void or contingent one in either of which case the remainder to the first son  of Robert become vest as soon as he be bear by the first part of the  limitation the estate be limit two after Robert death to the trustee to hold  for his life which be absurd and void as be impossible to take effect   light  b Cholmley case   a Yelv Nov the other word or other soon determination plain  make the remainder contingent and though the trustee be in be this will not  make it a Andrews vest interest it be to arise on a future accident Borastons  case   SC roll these word must mean something to happen in the lifetime of  Robert because the trustee be by other word to hold after his death and as no  contingency then happen for the join of Robert with Fleetwood in the fine make  no forfeiture but each thereby grant what be lawful may the consequence be  that the first remainder that can vest do vest for the law will not suffer the  freehold to remain in abeyance bowless case   a and this construction be also  enforce by the subsequent limitation to the first son of Robert the word be  and after the end or other soon determination of the term which must mean the  term of ninetynine year limit to Robert so that by the word of the deed as  soon as a son be bear the estate of the trustee be to end and the intent of  the party be not frustrate by this construction because there be no need of a  continuance of the estate of the trustee when the very person be bear to take  the remainder for who sake the limitation to they be make in a court of equity  trustee be always consider as the instrument only of the person for who sake  they be make trustee and therefore if they be to do any act which they have a  legal power of do at the instance of such a person they will not be subject to  censure and a court of law where the party now be will not reject sensible  word out of a deed for these reason this fine be well levy and consequent  there be a tenant of the freehold against who the whole estate can be recover  and the lessor be bar by the recovery on account not of a recompense but of a  better right in the defendant as to the fine levy by the defendant this it be  admit can not make a discontinuance because they have no estate they be  disseizors of the fee and so it be agree on the other side and a fine levy by  a seize with nonclaim be a effectual bar for if the party be seize of the  freehold it be not material whether it be by right or wrong and to such fine  it can be except quod part Finis nothing Andrews to have   a b b   light a b  lev the Act of h be a statute of repose and a fine levy accord to it be notice  to all person of a estate gain thereby and consequent if they who have right  do not assert it in time it be their own fault however as such fine alone be  not a effectual bar the next point to be consider be whether the plaintiff can  recover in this ejectment the day of the demise be lie before the entry of the  lessor at commonlaw there be four way of claim two by record as by praecipe  quod To give back or entry of a claim enter in the record of the foot of the  fine and two in pais as by actual entry or continual claim and by the save of  the statute of h they be reduce to two only videlicet action and lawful entry  the question then be what be the meaning of these word in the Act which be a  quiet one the save thereof be to be construe strict more as to the word action  this can take in ejectment because it be admit these be not in use unless in  special case in the reign of h and even now they will not lie in all case as  after a descent or the time of limitation expire and statute and grant be to  be expound accord to the time when they be make beside a ejectment be only a  fictitious proceed salk and the Act certain mean not a fictitious but a real  action it be also a suit not of the lessor but of the plaintiff in ejectment  roll pl Goodtitle on the demise of Lord Gower and Thrustout a stram a mich g  in this court in ejectment it be object that a knight ought to be return on  the jury but the court overrule the objection because it be to be consider as  the suit of the lessee and they Andrews er p cite Holborn and Kingston b  Holborn on they ld Kingston Babbington bro p c ante b in the house of lord  bring by writ of error from Ireland where in ejectment the same point be  determine accord there be also a great difference between action bring for  recover the freehold and possessory action which a ejectment S the other word  in the statute mean a actual entry Inst and it have be determine that a entry  in ejectment be not Andrews sufficient to avoid a fine I sand SC vent SC I Mod  SC keb skin and accord it be resolve year by all the judge of England except  baron price that in case of a fine there must be a actual entry and a entry to  deliver a declaration in ejectment be not sufficient which resolution be not  report in any of the book the consequence hereof be that in this case the  actual entry be after the demise this can support the present action though it  will take away that effect of the fine for it be impossible that one out of  possession shall maintain a possessory action and it be contrary to experience  that a entry after the day of the demise shall maintain a ejectment by way of  relation former as it have be admit a ejectment lie only between a lessor and  lessee and therefore it will be very strange if a disseizee can now maintain  one against a seize before entry and the statute of a c mean a actual entry  and show that a previous one be requisite upon the whole matter therefore the  party be at least bar of this action he have make no entry before the demise  to gain the possession it be reply in answer to the principal objection that  the freehold be in Fleetwood dorm at the time of levy the first fine that as  in purchase the pecuniary consideration make it reasonable to construe deed  against the grantor so in the case of voluntary deed and family settlement the  construction must be guide by the intent of the donor ut res to greater extent  to be strong how to pass away Litt sect Plowd Benl finch and this rule hold  place most strong in those case where the intent be to keep a estate in the  male part of the family which be preferable to the female as by the former the  name be preserve Plowd Litt Rep it be also to be remark that both will and  deed be to be consider as they stand at the time of their make and therefore  in William and brown c stram Barnard c mich g in this court where the question  be upon a will in relation to cross Andrews remainder it be say by Lord  Hardwicke that though at that time there be but two person in be the case be  to be consider as it stand at the time of the will and therefore as there may  have be more person in be the court determine against the cross remainder  accord to the rule that there can be such remainder between more than two by  implication so here as the estate of the trustee be limit only to support the  remainder to the first son of Robert if he have not be bear till after the  determination of Robert estate and his be bear before be mere accidental the  settlement be to be consider in the same manner as if he have not be bear till  afterward it be another general rule that remainder be never to be consider as  contingent where by any construction they can be take for vest chudleighs case  I   now as to the deed itself it I to be observe in general that by the first  part thereof a good estate of feesimple be vest in the trustee and no more be  to be take from they than what be sufficient to serve the donor intent as to  the use in shaw and weigh d stram FitzG fort Eq ab d in king b there be a  devise to trustee by ambiguous word and they be enlarge in order to serve the  use beside as Robert be plain but a tenant for year if the freehold be not in  the trustee it must have be in abeyance if the birth of a son which be mere  accidental have not happen and then all the use may have be frustrate by a  feoff that Robert as to the word and from and after the death of the say  Robert or other soon determination of the estate herein limit to the say  Robert as aforesaid c these be insert only to accelerate the entry of the  trustee for the preservation of the use both imply and express and must be  construe reddendo one one and it be to be observe that the ultimate  determination of Robert estate be certain videlicet the end of the term of  ninetynine year by efflux of time and his death and forfeiture be thing which  will be imply in law if these word have be omit so that the time be the true  measure of his estate Plowd die b I   from Andrews hence it follow that though  Robert death or forfeiture be thing which may or may not happen yet as the  term must necessary end as aforesaid the remainder to the trustee be not  contingent Borastons case   a b pollex raym hut the word just before the  Andrews er p limitation to the first son of Robert after the end c of the say  term may as well be construe to mean the estate pur auter vie limit to the  trustee as the term limit to Robert last if the construction contend for by  the plaintiff be allow the intent of the grantor will take place and this be  such as the law commend videlicet the honour and name of the family which  ought to be preserve not withstand a little inaccuracy in the composer of the  settlement the court who argue seriatim give no opinion upon the first point  but they unanimous hold that a actual entry be necessary to avoid a fine and  this be now so full settle that it be not to be doubt or dispute and c I say  that this be by way of conformity with the ancient method of avoid fine which  be mention in Inst it be also resolve that this action be not maintainable  because the demise be previous to the entry for in the case of a fine the  party bath no title before a entry the reason whereof as c I say do not arise  from the statute of h but from the puissance of a fine at commonlaw this be in  the nature of a recovery in a real action and consequent the demise be  absolute void and it can be make good by a subsequent entry by relation which  can make good such act only as be voidable this case therefore be not parallel  to a action bring by a disseizee after entry for the mesne profit to which it  have be compare for here if the lessor be entitle to the mesne profit from the  time of his demise he will recover they from a time when he have no title  whereas in the other the profit be recoverable only from the time when the  disseizee have a title and chapel just say that there be a great difference  between a entry for purge a seize and a Andrews entry for avoid a fine for  which he cite more upon this second point judgement be give for the defendant  and a writ of error be afterward bring in parliament it be there affirm note  upon the first argument of this case Lord Hardwicke then c I of this court be  strong incline to think but without give a opinion that this action be not  maintainable for the same reason which the court now go on videlicet because  the demise be lie before the entry and consequent be to be consider as  absolute void the lessor be then out of possession mich g in king b in a new  ejectment bring by the same party for the same land where the demise lie be  subsequent to the entry a special verdict be find to the same effect as in  this case and after great debate and consideration it be unanimous hold that  the remainder to the trustee be good by reason of the word or other soon  determination and that it be not a contingent but a vest remainder to take  effect in possession on the determination of the precedent estate in any  manner and consequent that the fine be levy by tenant for year be void and the  recovery too judgement therefore for the plaintiff and afterward it be affirm  in parliament a bro p c see atk where the opinion of the judge as deliver by  Lord chief justice will be report see the case refer to ante p margin