Owen v De Beauvoir
| Jurisdiction | England & Wales |
| Judgment Date | 13 May 1845 |
| Date | 13 May 1845 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 1307
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 11 Jur. 458: affirmed 1850, 5 Ex. 166.
[547] owen v. dk beauvo[b,.(u) 1847.-Replevin for distraining a carton L3thK;:?7.3 May, 1845. Avowry, (under 11 (}. '2, c. 19, s. 22), that the locus in quo was''/J ;-' ' -parcel of a tenement called H., holden of the manor of S. M., by fealty and rent of 9s. yearly, to be paid at Old Michaelmas in every year, of which manor defendant, at the time when &c. was the owner, and that, because defendant occupied the locus in quo at the time when &c., and because 21. 14s. of the rent aforesaid for six years, ending at Old Michaelmas, 1844, was in arrear, defendant well avowa the taking the said cart, &o. Pleas in liar:-first, that the locus in quo was not parcel of the manor of S. M. ; second, that it was not holden of that manor; third, that defendant was not owner and possessed of that manor ; fourth, that no rent was in arrear. Issues thereon. H. farm was holden of the manor of S. M., at an ancient freehold rent of 9s. per annum, payable at Michaelmas, yearly. All arrears to Michaelmas, 1824, were paid in January, IN25. No other payment took place, but, after repeated applications for the rent in several years before Michaelmas, 1844, the lord distrained in May, 1845, for six years' rent due at Michaelmas, 1844:-Held, first, that, by the operation of 2 & 3 VV. 4, c. 27, sections 2, 3, and 34, the rent was extinguished by the lapse of twenty years from the day on which the last payment was made ; and, second, that the bar thus interposed by that statute of limitations need not be specially pleaded, and might be given in evidence on the plea in bar of non tetiuit.-In replevin, the judge's opinion at the trial was in favour of the defendant, so that he had no occasion to tender a bill of exceptions ; but leave was given to move to enter a verdict for the plaintiff. The Court afterwards entered a verdict for the plaintiff. The effect was to extinguish the rent, the subject-matter of the avowry, without leaving any means of reviewing the judgment. The Court inclined to grant a new trial, but recommended a special verdict, in order to carry the case at once into a court of error, which was afterwards consented to, on terms. [S. C. 11 Jur. 458 : affirmed 1850, 5 Ex. 166.] Replevin for a cart distrained in a certain barn, in the parish of West llsley, in Berkshire. Avowry, that the defendant well avows the taking of the said cart, gooda, and chattels in the said declaration mentioned, in the said barn in which &c., and justly &c., because he saith that at the said time when &c., the said barn in which &c., was:parcel of a certain tenement called Hodcott Farm, otherwise ELodcott, with the appurtenances, situate and being in the county of Berks, and holden of the manor of Strattield Mortimer, within the said county, by fealty, and the rent of nine shillings yearly, to be paid at the feast-day of St. Michael in every year (5 13. & Aid. 392 ; Litt, sects. 213, 131, and 225), according to the old style and computation of time formerly used in this kingdom,(c) of which said manor the defendant before and at the time when &o. was the owner, and thereof lawfully possessed; and because the plaintiff held and occupied the said barn, with the appurtenances, in which &c., at the [548] time when &c. (see Moor's Kep. 883 ; 3 Vin. Abr. 407 ; Hobart, 108), and because the sum of 21. 14s. of the rent aforesaid for six years next before and ending at tlae feast-day of St. Michael, which was in the year of our Lord 1844, according to the said old style, at the said time when &c. was then due, in arrear, and unpaid, to the Defendant, he the defendant well avows the taking of the said mentioned cart, goods, and chattels, in the said barn in which &c., so being parcel of the aforesaid (a) Decided in Easter Term (April 20). (c) See Doe d. Spicer v. Lea, 11 East, 312; Smith v. Walton, I Moore & Scott, 380; 8 Bing. 235. 11308 OWEN V. DE BEAUVOTR ISM. &W. 549. tenement called Hodcott Farm, otherwise Hodcott, with the appurtenances, and holden of the said manor of Stratfield Mortimer, as aforesaid, and justly &c., as a distress for the aforesaid rent so then being due, in arrear, and unpaid to the defendant, according to the form of the statute (A)1 in such case made and provided. Verification, and prayer of judgment, and a return of the said cart, goods, and chattels, together with defendant's damages, costs, arid charges in this behalf, according to the form of tie statute (see 7 H. 8, c. 4, s. 3; 21 H. 8, c. 19, s. 3; 4 Geo. 2, c. 28) in such case made and provided, to be adjudged to him &c. Pleas in bar:-First, that by reason of anything in the said avowry alleged, the defendant ought not to avow the taking of the said cart, goods, and chattels in the said declaration mentioned, in the said barn in which &c., and justly &c., because the plaintiff says, that the said barn in which &o. was not parcel of the said tenement called Hodcott Farm, otherwise Hodcott, in manner arid form as in the said avowry alleged ; concluding to the country. Second, that the said barn in which &c. was not holden of the said manor, in manner and form as in the said avowry alleged : con-cltiding to the country (see per Rooke, J., in Da C'uxta v. Clarke, 2 Bos. & Pull. 376). Third, that the defendant was not the owner and possessed of the said [549] manor, in manner and form as in the said avowry alleged; concluding to the country. Fpurtb, that no part of the said rent was due or in arrear, iti manner and form as in the said avowry alleged ; concluding to the country. Issues thereon. At the trial, at the last Berkshire assizes, before Maule, J., it was proved for the defendant, that for the period between Michaelmas, 1784, and Michaelmas, 1824, the yearly rent in question had been paid for Hodcott Farm by its owners, or their tenants in possession, to the defendant and his ancestors, lords of the manor of Stratfield Mortimer, as held in free tenure of that manor.(a) On 15th January, 1.S25, eight years'arrears, due at Michaelmas, 1824, were paid by the then occupier, by direction of his landlord, to the defendant's agent. Repeated applications on behalf of the defendant were afterwards made for payment of subsequent arrears, but without success; and on the 15th May, 1845, the defendant distrained on the plaintiffs cart, while standing in a barn, hhewn to be parcel of Hodcott Farm, for six years' (by arrears, due at Michaelmas, 1844. The defendant tendered evidence to prove the existence of the. manor, and its having been in his possession and that of his ancestors for more than sixty years, when the plaintiff's counsel interposed, contending that the "right and title " of the defendant to the rent was extinguished by lapse of time, under the operation of 3 & 4 Will. 4, c. 27, ss. 2, 3, and 34, which transferred the estate in the rent to the plaintiff1. For the defendant it was answered, first, that the twenty years mentioned in sections 2 and 3 began to run, not from the time the last payment of reut was made, but from Michaelmas, 1825, till which time no rent was due, so that the right to distrain or sue for any [550] arrear of the rent "first" accrued to the defendant then, viz. within twenty years before the distress was taken; and secondly, that if it did not, the plaintiff should have pleaded specially in bar, that the right to make the distress did not first accrue to the defendant within twenty years next before the distress was in fact made, or in the terms used in James v. Halter (3 Bing. N. C. 545, 550 ; 2 Bing. N. C. 505, 507, S. C.). Maule, J., expressed his opinion in favour of the defendant on the first point, and was inclined to think that, if the statute didlin fact operate as a bar, it should have been pleaded. He also noticed, that sect. 34 didlnot providb anything as to arrears of the rent extinguished by it. And he directed a verdict for the defendant, with leave to move to enter a verdict for the plaintiff for 41. 4s. (the costs ot the replevin bond). Verdict for the defendant, for 21. 14s., the amount of the sis, years' arrears, the cart being found to be of the same value. In Michaelmas term last, Wlmteley moved according to the leave reserved. Sections 2 and 3 shew that the only question is, when the last payment was made. Thajt question is raised by the last plea in bar, viz. of riens in arrear. [ Parke, B. No ; that; plea admits the rent to be existing, but says it has been satisfied by payment or otherwise ; whereas the effect of sect. 34 is to extinguish the estate in the rent altogether; so that, at the time of the distress, the tenement would not be held subject (i)1 11 G. 2, c. 19, s. 22; see liulpil v. Clarke, I New Rep. 56; Bunkx v. Angel, 7 Aql. & E. 843. See also 12 Ad. & E. 341. (k) See Doe d. Whittuck v. Johnson, Gow's Rep. 173 ; cor. Holroyd, J. (1)- See Paget v. Foley, 2 Bing. N. C. 679, as re-stated per Our., 3 Bing. N. C. 549. 16M.&W.8M. OWEN V. DE BEA.UVOIR 1309 to such rent. Alderson, B. The plea admits there is a rent, but says it is not in iirrear ; whereas the plaintiffs point is, that there is no such rent, not that he did not hold. Rolfe, B. The plea admits that the plaintiff' holds at a rent of 9s., payable at Michaelmas.] The plaintiff' contends that no rent is in arrear, because it has been extinguished by the operation of the act. [Rolfe, B. According to that argument, lion, tenuit would always be a superfluous plea, where riens in arrear is pleaded. Parke, B. The plea of riens in arrear lets in any defence that the rent [551] is satisfied by payment, by accord and satisfaction, or otherwise, consistent with its admission that the rent is payable in respect of the tenement mentioned in the avowry.] At all events, the second plea in bar amounts to nori tenuit. [Alderson, B. Suppose the rent was...
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