Almanzor v Davilack. in B. R
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Year | 1792 |
| Court | Court of the King's Bench |
| Date | 01 January 1792 |
English Reports Citation: 92 E.R. 995
COURT OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER
case 87. hunt vers. bourne. in B. R. Vide supra,, p. 93. The case was now argued seriatim by the Court. And Gould J. was of opinion that the judgment should be affirmed, and as to the objection, that by the verdict it is not found, that there was a writ of right, he was of opinion that it was not needful, for in all special verdicts all necessary circumstances shall be intended. Lane. 15. 9 Co. 51 b. As to the principal case he was of opinion, that by the first fine there was a discontinuance for the three lives, for notwithstanding the Statute 18 Edw. 1, de Modo Levandi Fines, a fine may be well levied by antient demesne, for this statute does not extend to it. Hob. 47. 2 Inst. (a)1 106. Dyer 373. True it is that it cannot be a bar to the issue in tail upon an estate-tail made by the Statute (b)1 de Donis Conditionalibus ; for a fine is no bar to such an estate but by the Statute of (c)1 4 H. 7, and (d)1 32 H. 8. But it is objected, that a fine is levied upon a writ of covenant which is a personal action, and cannot be brought in antient demesne; but I am of opinion, that a writ of covenant for a fine is a real action, and here the fine is levied according to the custom upon a writ of right close, Fitzh. Nat. Brev. 11, but it is objected, that a Court of Antient Demesne is not a Court of Record, yet a common recovery there binds the estate. But I am of opinion, that this discontinuance determines with the three lives: if tenant in tall makes a lease for the life [125] of the lessee, this is a discontinuance of the eatate-tail; but if the lessee dies, the discontinuance determines, Co. Lit. (a)2 and I am of opinion that the second fine does not make a discontinuance. 3 Co. 88, 89 (i)2. I also am of opinion, that the right of entry is not lost by the twenty years; the Statute of (c)2 Limitations does not bar the right, but only the remedy; if a lessee for life levies a fine, the lessor shall have five years after his death ; for the right of the lessor is not barred by the non-claim of the lessee, or by that of himself, during the life of the lessee. Powys J. was of opinion that the verdict was good; for it is found, that by the custom a fine may be levied upon a writ of right close, and that a fine was levied there according to the custom. He thought also, that a fine may be levied in the Court of Antient Demesne, especially, it being found by the verdict, that it was levied according to the custom beyond time of memory. Hob. 48. 1 And. 71. Dy. 372. There it was also said, that a fine in ancient demesne bars an estate tail; but 2 Inst. (1) takes notice of this case, and says, that a fine there does not bar the tail, but admits that a fine may be levied there. He also was of opinion, that the fine in ancient demesne made a discontinuance, but it made a discontinuance only for three lives. And he held also, that the second fine did not make a discontinuance, for that it doth not take effect for the life of the conusor; and this is like the case (d)2, Co. Lit. and the section (e) there, altho' it is not the text of Littleton, yet it is good law, and founded upon good reason; and is allowed for law, 1 Jon. 109. Latch 69, in the case of Eustace and Scawen (/). He was of opinion also, that the ejectment is not barred by the Statute of Limitations, altho' the conusor died in the year 1656. [126] Then the issue might have a formedon, but now this remedy is barred by the Statute of Limitations; for there was a discontinuance for the three lives, and the entry of the issue was taken away thereby, so that he could not have an ejectment until the determination of the three lives, when the discontinuance ceased, which was within twenty years. 996 DE TERM. SANCT. HIL. 1 ANN.E 1 COMYJfS. 187. Powell, J. I am fully of opinion, that a fine in antient demesne makes a discontinuance ; for the Statute of 18 Ed. 1, de Modo Levandi Fines was only a declaration of the common law, and does not restrain...
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