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1817.

HARDMAN

2.

CLEGG.

it was deemed reasonable that such question should be cleared up, before the tenant should put the validity of his title to trial. But Brooke, in his Abridgment, Droit, p. 32, does not appear to regard this distinction; for he says, "At that time issue may be tender d upon the seizin by the new statute of limitations, viz. 32 Henry VIII. cap. 2." And, since that statute, it seems unnecessary to alledge in what reign the seizin was. Booth, Real Actions, 99.

Upon the question, what seizin will support a fine with proclamations, so as to bar strangers to the fine, it seems as if the old authorities, begin ning with Plowden and Dier, are calculated rather to throw difficulty into the way of deciding upon this subject; and this difficulty arises upon the use of the expression, that the fine shall bar a stranger whose estate is turned to a right ; which is an indefinite word, as here used, for it may mean a right of entry, or a right to bring a possessory action, or the mere right where the possessory action is gone. The apparent contradiction of terms in the early reports has probably arisen from an endea vour to reconcile the doctrine of the still earlier authorities

with that system of modern conveyancing, which was the consequence of the statute of uses, and which has left no other external marks of a legal possession, than the actual occupancy, or receipt of the rents and profits-or the evidence of deeds or assurances giving a title consistent with the occupancy or receipt of the rents and profits by another person; as in the case of mortgagee or trustee. But, before the statute of uses, when the performance of services in kind by the tenants was a substantial profit to the lord of the seignory upon which the te nures depended, and it was important to the lord, that the possession of every tenement should be ascertained and recorded, the evidence of the legal estate of the tenant was his investiture of the tenancy in the lord's court, as described by Lord Mansfield in his judg ment upon the case of Taylor ex. dem. Atkyns v. Hørde, 1 Burr. 60.

So that in those early times, when the spirit of feudal tenures was strictly acted upon, a disseisin was a totally different proceeding from what it possibly can be at this day; if, indeed, such a thing can exist, under the present system of title to lands, as a disseisin

against the election of the party put out of possession. This is admitted by conveyancers to be doubtful.

But now it is considered, that an adverse possession, not commencing by being derived under the title to which it is adverse, will support a fine with proclamations, so as to bar a stranger at the end of five years. The case of Doe ex dem. Foster v. Williams, Cowp. Rep. 621., though the present question was not then directly in point, is sufficient to determine this point. There the heir brought his action against the intruder, who had levied a fine before the five years had elapsed, but failed upon the ground

1817.

v.

CLEGG.

that he had not made an actual entry to avoid the fine; thus proving, that the intruder, who HARDMAN had taken the rents of the property, had acquired such an estate, as would render his fine effectual for every purpose against a stranger to the fine. In a late case of Doe v. Perkins. 3 Maule and Selwyn, 271. it has been decided, that a tenant, holding over his term without paying of rent, cannot, by a fine with proclamations, bar the right of the landlord or his heirs; which is by reason of his possession commencing under, and being, in its origin, derived out of the title in opposition to which the fine is

set up.

MEMORANDA.

IN Taylor v. Curtis, p. 192, the Court held, upon the argument, that the

expenditure of ammunition, damage to the ship, and the cure of wounded seamen, incurred in resisting a privateer, were not the subject of general average, 6 Taunt. 608.

In Thornton v. Simpson, p. 164, on a motion to set aside the verdict, the Court expressed an opinion confirming the judgment given by the Lord Chief Justice at the trial, 6 Taunt. 556.

In Gaskell v. Lindsay, p. 212, tried before Mr. Justice Le Blanc, at Lancaster, the Court set aside the verdict, which had been found for the defendant, and directed a verdict to be entered for the plaintiff.

In Hill v. The Sheriff of Middlesex, p. 217, the Court expressed themselves to be of the same opinion with that given by the Lord Chief Justice at the trial, 7 Taunt. 8.

In the same manner in Bennett v. Moila, p. 416. and see 7 Taunt. 258; and in Benson v. Schneider, p. 416, tried before Mr. Justice Burrough, 7 Taunt. 272.

In Bunn v. Markham, p. 352, the Court determined (in conformity to the opinion intimated by the Lord Chief Justice at the trial) that, to constitute a donatio mortis causa, there must be a delivery of the articles given, and a continuing possession in the donee, 7 Taunt. 224. In this case the Lord Chief Justice, adverting to the case of Spratley v. Wilson, p. 10, said, "that what he had there, somewhat improvidently thrown out, could not be maintained, because a delivery (of the watch) was wanting, and he had accord

ingly written a remark to that effect at the end of his own note of the

case."

In Goupy v. Harden, p. 342, and 7 Taunt. 159; and in Hedbergh v. Pearson, p. 349, and 7 Taunt. 154, the Court confirmed the ruling of the Lord Chief Justice.

In Kemble v. Atkins, p. 427, and 7 Taunt. 260, the Court adopted the opinion intimated by Mr. Justice Dallas at the trial.-See likewise the note to that case.

In Litt v. Cowley, p. 388, and 7 Taunt. 169, the Court decided in conformity with the opinion expressed by the Lord Chief Justice at the

trial.

In the same manner in Stewart v. Fry, p. 372, and 7 Taunt. 339; and in Stuart v. Smith, p. 321, and 7 Taunt. 158. In Simpson v. Bloss, p. 273, and 7 Taunt. 246, the Court were of opinion, that the demand was so connected with an illegal transaction, that the plaintiff could not recover.— The reader will be pleased, therefore, to correct the inaccuracy of the note in this respect.

In Zwinger v. Samuda, p. 395, and 7 Taunt. 265, which was tried before Mr. Justice Park, the Court confirmed the ruling of the Learned Judge at the trial.

For the result of the motion in Evelyn v. Raddish, p. 543, see 7 Taunt.

411.

In Fairlie v. Christie, p. 331, and 7 Taunt. 416, the Court held that the underwriters were discharged.

Nesham v. Armstrong, p. 468,

The points reserved in this action were afterwards put into a special case, and argued in Michaelmas Term, 1817. The Court upon the first objection, namely, that all the partners were not examined, were of opinion that this objection was fatal. They said, that the object of the Act was to have the knowledge of all the partners. All should be exempt from suspicion, for they claim a great benefit under the Act. The partner examined, as it appears by the case, only swore that he did not know any of the persons concerned in the demolishing.

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