#### Jackson, ex dem Watson, against Smith.

a fine,^nd gv8 years non-claim, Kre eoncJusive anylegai dlsalS ahíne “is a «a? £ainst a person wjio bas enterjíü during tbefive years, without

THIS was an action of ejectment, brought for the recovery of / '■ „ * ■ *° . ; • ■ 0*j0t Mo. 13., in the township of CamilluB, which was tried before *Van Ness,*at the *Onondaga*circuit, in *June,.*1815. . .'

At the trial, the plaintiff gave in evidence *a deed from Timo‘thy Downs*(who was described, therein/as the heir at laty of Ptt*trick Downs,*tq tyhom a patent fqr tlpe lot iq question had been *427granted) to the lessor of the plaintiff, for the premises, dated the 16th *July,*1793; also, a fine *sur cognizance de droit come ceo,*&c., levied in this court between *Eunlock Woodruff,*plain tiff, and *Elkanah Watson,*the lessor of the plaintiff, deforceant, on *Tuesday*the 13th of *August,*1305, of the premises in question, and. which was registered in the clerk’s office of the county of *Onondaga,*on the 12th *September,*1805, and a release, dated 10th of *August,*1805, of the premises, from *Hunlock Woodruff,*to the lessor of the plaintiff.

The defendant gave in evidence that he went into possession of the premises under a contract for the sale thereof to him, by one *Joseph Brush,*in the year 1807, at which time the land was wild and uncultivated; and that he had continued in possession ever since, and made improvements.

A verdict was taken for the plaintiff, subject to the opinion of the court, on the above case.

JET. *Bleecker,*for the plaintiff,

contended, that the plaintiff having shown a good title, *prima facie*at least, was entitled to recover; that a finé was a solemn assurance of record, and equivalent to a judgment.* The fine, in this case, bound all parties, and strangers also, after five years, and the defendant’s deed was subsequent to the fine.

*Sabin,*contra,

insisted, that the defendant, having entered within five years after the fine was levied, was within the saving clause of the act, (1 *N. R. L.*358. sess. 36. ch. 58. s. 7.) He cited *Jackson, ex dem. Scott,*v. Huntly,† as analogous in principle. That the entry alone was sufficient, without bringing a suit, there being no one ip actual possession of the premises.

Bleecker, in reply,

contended, that no entry could be effectual to avoid a fine but by a person having right.‡ A fine can be avoided only by reversal in error, by pleading, or by av*er*ment fraud. It was not necessary that any person should be in possession at the time the fine was levied, it being a conveyance of record.§ It is valid until duly avoided. If the land in was vacant, the enect must be to put the cognisee in possession according to his right. The saving of the act is only to persons having right, and the defendant does not show a right.

*

**5 *Caine's Dig. 120. (Fine,) 3 Co. 78. b.*

†

*5 Johns.*Rep. 59. 63, 64.

‡

 5 *Cruise's Dig. 233.*242. Tit 35. Fine. Breaton, 436. *b. Dyer,*215. *b.*

§

 5 Cruse, 137. 140.

*428Platt, J.,

delivered the opinion of, the'court. Levying a jfine,at common law,’arid as regulated *by*sffitute,,-is--a *judgment of the court*upon;' theagreement of the parties, which not only transfers the right of the, vendor, and all claiming under him, but also extinguishes the 1‘ights-of ail others who omit to make their claim in due season. *(Cruise's Dig. tit. Fine.)*

*.*Lord *Coke,*likens it,to a sale of personal property *in market*overt, which is not only good and valid between the Contracting parties, but is, also, binding on all strangers who have' any right to the things sold. (2 *Inst. 713.)*At common Jaw, all persons were concluded, unless they made claim during the process of levying the fine. *(Bract.*436. A. *&*B. 5 *Cruise’s Dig,*121.) But in the reign of *Edward*I., the. law was altered so as to allow a year and a day to all persons to claim,, in order to .avoid a fine. Our .statute allows, *five*years to claim,against’ a fine ; and expressly affirms the common law, in declaring that a fine leviepursuant to the forms regulated by the statute, “ *shall be a final*end, *and conclude, as wellprivi.es, as strangers to the*sameexcepting persons under disabilities, &c. It operates, not. merely as a shield to a person in. ¡possession under á ^doubtful title,, but as an absolute conveyance, or investment of title, *per se,*after five years’ acquiescence.

This fine must, therefore, be conclusiva against the defends-ant, for although he entered within, five years, yet he has .shown no title i-n himself; .and'the plaintiff is entitled to judgment. " *r -*•

Judgment for the plaintiff,