defendants entered, and have continued in possession ever since. Dr. Edward Cooper died in 1792, leaving the lessor of the plaintiff his heir at law. The defendants were admitted to be the right heirs of Sir Thomas Allen. Either party was to be at liberty to turn the case into a special verdict.

Follett for the plaintiff. The question upon which the case turns is, whether Thomas Allen Greenalgh was able to make a good tenant to the præcipe in the recovery suffered by him in 1774 ? and the plaintiff contends that he was not, inasmuch as the fine previously levied by his brother Edward discontinued the estate tail and displaced the remainders. Greenalgh, therefore, had no estate which he could convey so as to make a tenant to the præcipe, but only a remedy by formedon in the remainder, on the failure of the estate tail. The fine divested the immediate remainder in tail which he had, and Edward acquired a base fee, which he devised; and the reversionary fee was also in him. This view of the case is consistent with the law of discontinuance as stated by Lord Coke in commenting on Littleton, sect. 592.

W. Hayes, for the defendants, was here called upon by the Court to state the points on which he relied. First, the fine was not a discontinuance of the estate tail, because Edward, who levied it, was not tenant in tail in possession, there being a term of 500 years outstanding. [PARKE, J. That is removed out of the case by the order of Court. It is not set up by way of a defence in ejectment; but it may be adverted to in argument, to shew what was the state of the title at the *time of the fine. Secondly, if the fine operated as a discontinuance, it discontinued the reversion in fee which was in Edward Allen, and turned it to a right; that reversion then was no longer devisable; it did not pass by Edward's will; and the lessor of the plaintiff cannot in any degree found his title upon it.

[*287

Follett. If the first objection could prevail, scarcely any fine levied by a tenant in tail would be effectual, for such fines are generally of old estates out of which terms of this kind have been granted and are subsisting. Perhaps such a term may not be affected by the fine, or it may be, that the termor would be entitled in equity to have it kept up; but the fine still works a discontinuance. This agrees with the distinction laid down in all the books, that where tenant in tail levies a fine, after an estate of freehold granted, there is no discontinuance, but otherwise where there is only a term of years outstanding. Com. Dig. Discontinuance, (C) 3, citing Co. Litt. 332 b. The law on this subject is collected in Cruise on Fines, p. 192, 193, 2d ed., where it is stated, that in Saffyn's case, 5 Rep. 124; Cro. Jac. 60, "it was resolved, that although a lessee for years had not himself such an estate as would enable him to levy a fine, yet it did not therefore follow that his interest should not be barred by a fine; that a term for years was within the statute 4 Hen. 7, c. 24, being comprehended under the word interest; and as the object of that act was to prevent strifes and debates, it would not have that effect, if its operation did not extend to long terms of years which are now so common." The doctrine on this head is further explained and commented upon in Iseham v. Morris, Cro. Car. 110, and Dighton v. Greenvil, 2 Vent. 329, also cited by Mr. Cruise in the pas[*288 sage above referred to, and 5 Cruise Dig. 185, 186: Reynolds v. Jones, 2 Sim. & St. 206, is an additional authority on the same point. There have been questions as between the termor and the person levying a fine, with respect to the operation of such fine upon the term; but it has never been suggested that the fine, levied by a tenant in tail, was prevented by such term from taking effect upon the estate tail.

As to the second point, it seems to be assumed, on the other side, that the lessor of the plaintiff founds his title wholly on the reversionary fee which was in Edward Allen before the levying of the fine. But this is a mistake. The fine levied by Edward gave him a new estate in fee, which displaced the remainders, and could, itself, only be divested by an action in formedon brought by the remainder-man on the failure of issue in tail of the party levying the fine.

It is like the case of a disseisin under the old law. On the death of Edward, Thomas, the brother, might have brought his real action; but he suffered five years to elapse after his right accrued without doing so. With regard to the operation of a fine, as working a discontinuance and giving a new estate, Doe dem. Odiarne v. Whitehead, 2 Burr. 704, is a leading authority. If, indeed, at the time of levying the fine, Edward had had the immediate reversion in him, the effect of the fine would have been to bring that reversion into possession; but here there was a remainder interposed, namely, the remainder in tail to *289] Thomas the brother. Edward then acquired an estate which was *de

feasible, but was not defeated within the proper time; having the fee, he devised it with remainder, ultimately, to Dr. Cooper; and upon the determination of the other estates limited by the will, the heir of Dr. Cooper became entitled to the estate in fee created by the fine. The Court will not presume, in favour of the defendants' claim, that a formedon was brought by Thomas, the brother, within five years of Edward's death.

W. Hayes, for the defendants. First, the fine did not work a discontinuance. The original settlement, under which both these parties claim, created a term of 500 years, which is admitted to have been still subsisting in 1764, when the fine was levied. Now a fine, to operate as a discontinuance, must be levied by a tenant in tail not merely seised, but having actual corporeal possession. [TAUNTON, J. Is there any authority for saying that there must be a possession, as contradistinguished from seisin of the freehold? There have been many cases where the question was, whether a prior term was barred by a fine, but in which, according to this argument, such a point need not have arisen, since the term would have rendered the fine invalid.] It is only contended here that such fine could not have a tortious operation, by creating a new and wrongful fee, while the possession continued in the termors. In Doe dem. Maddock v. Lynes, 3 B. & C. 388, a party who had assigned a term in lands upon certain trusts, afterwards, and during the term, made a feoffment of the same lands; and it was held that such feoffment did not destroy the term and give a fee by disseisin, *290] being made without the consent of the *trustees, and they being at the time entitled to actual possession under the assignment. If the feoffment did not work a disseisin in that case, the fine does not create a discontinuance in this there is no substantial distinction. The clear, undisputed possession in this case was in the termors: the tenant in tail was such tenant, expectant only on the determination of the 500 years; the termors had the immediate right; and during the 500 years the subsequent estates limited by the settlement, were, in the view of this Court, and with reference to the immediate enjoyment, merely equitable. [TAUNTON, J. In Doe dem. Maddock v. Lynes, 3 B. & C. 388, the attempt was to destroy a term assigned in trust for certain purposes, without the assent or knowledge of the trustees. If the feoffment

had been made by the trustees themselves, and not by the cestuy que trust behind their backs, the Court might have come to a different conclusion.] The present case differs from that, because here the term was not created by the party afterwards wishing to destroy it, but was a prior term, forming part of the inheritance transmitted by the original settlor, and of which the estate tail itself was part. It was admitted by Mr. Preston in Doe dem. Maddock v. Lynes, 3 B. & C. 398, that if the term continued, the termor's possession was the possession of the reversioner: so here, the possession of the termors for 500 years was a lawful possession of the whole inheritance, parcelled out as it was by the settlement into a number of particular estates to the uses there specified. No actual entry was necessary by the termors, because, the limitation of the term *291] being by way of use, it was executed in possession at the moment of executing the conveyance. It must be assumed on the other side, that the fine operated adversely to the termors: to operate as a discontinuance, it must have displaced the term. It is impossible to acquire a new reversion expectant on an old term: the termor must be dispossessed, Freeman v. Barnes,

1 Ventr. 55, 80. In that case it was held that the term was divested, there being proof of an intention to dispossess the lessee in trust: and it being objected that such a decision would prevent a man who purchased land by fine, from keeping on foot mortgages and leases, which it is often convenient to do, "the Chief Justice declared his opinion that in that case the fine should not bar, there not being any intention of the parties to that purpose." Discontinuance is, in its nature, a wrongful act; a tortious passing of the fee simple; Litt. 599, 612, 614: the argument then on the other side must be, that the fee simple was so wrongfully passed by force of the fine, while at the same time a rightful possession continued in the termors; which is a contradiction. [TAUNTON, J. Is there any cause to shew that a party, to create a discontinuance, must be in actual possession of the land?] He must be in such possession as would enable him to make a feoffment with livery of seisin. There could not be a tortious acquisition of a new fee (which is the effect of a discontinuance,) while the old title continued. Here the termors were in possession under the old term down to the time of bringing this ejectment. They had, if not the actual, the constructive possession; as was said by Bayley, J. in Doe dem. Maddock v. Lynes, 3 B. & C. 405, "The trustees were entitled to the actual possession, and we must therefore *presume that they had it." Edward Allen in this case [*292 was tenant in tail in remainder, expectant on the term of and conyears, sequently had no title to the possession. This is clear from Litt. s. 60, and Lord Coke's commentary on that section, Co. Litt. 49, a. Now a tenant in tail, to discontinue by fine, must have the actual, and also the lawful possession of the land, Co. Litt. 333, b., Briscot v. Chamberlain, Moore, 255. [PARKE, J. You contend that Edward Allen was tenant in tail in remainder, when he levied the fine.] He was; and not in possession in the sense contemplated by the books. And if a new fee was acquired here by the fine, it must have ransacked the whole inheritance: the tenant in possession must have been ousted as Bayley J. said in Roe dem. Truscott v. Elliott, 1 B. & A. 86, there can be no ouster of a mere reversion. And, on the other hand, it has been already observed, that the term of 500 years was not one created by the tenant in tail, but was part of a chain of limitations created by the settlor, the common author of them all: and if this link remains, all remain. [DENMAN, C. J. Have you any authority for the distinction between a term created by the tenant in tail and by the original settlor?] No direct authority, but it rests on principle. The possession of the termor in this case was the lawful possession of all those in remainder or reversion; while it continued there could be no tortious alienation. [TAUNTON, J. again inquired if there were any authority for saying that a tenant In tail must be in actual possession of the land to discontinue.] In Baker . Hacking, Cro. Car. 387, 405, tenant in tail and reversioner made a lease for the life of the lessee at a pepper-corn rent, and, *the lessee surviving the tenant in tail, this was held to be a discontinuance of the estate tail and [*293 the reversion, inasmuch as it was only the lease of the tenant in tail, since "the livery is only made by the tenant in tail, for he hath the sole power of the immediate freehold, and the immediate possession and inheritance." And the law is stated accordingly in the text books on the subject of discontinuance. [TAUNTON, J. In Cruise on Fines, p. 254, 2d edit. it is merely said that "no person can create a discontinuance who is not in the actual possession of the estate tail by force of the entail." What is there to shew that the tenant in tail had not that in the present case?] Possession must be understood in the strict legal sense the party must have the immediate right of possession. Here the termor had that possession, and represented the whole inheritance. One test of the nature of the tenant in tail's interest is, whether it could have passed by grant? and clearly it could here. If Edward Allen had granted his estate tail to a stranger, that party would, by the grant, have acquired a base fee, which would have expired on failure of issue in tail. But if Edward had an estate in possession, that estate could not have passed by deed alone, nor without livery. It is

laid down in Co. Litt. 332, a. (referring to sects. 615, 616, 617, of Littleton) that "if a remainder or a rent service, or a rent charge, or an advowson, or a common, or any other inheritance that lieth in grant be granted by tenant in tail it is no discontinuance." And in Litt. s. 618,-"Of such things as pass by way of grant, by deed made in the country, and without livery, there such grant maketh no discontinuance, as in the cases aforesaid, and in other like cases, &c. And albeit such things be granted in fee, by fine levied in the

*294] king's court, &c. yet this maketh not a discontinuance." The same doc

trine is laid down in Com. Dig., Discontinuance, (C) 3, citing the above section, and 2 And. 110. And Lord Coke in commenting on the last-mentioned section says, "It is a maxim in law that a grant by deed of such things as do lie in grant and not in livery of seisin, do work no discontinuance." Co. Litt. 332, a. [TAUNTON J. The first estate of freehold was in Edward. Would that have passed by a common grant?] Such a grant would operate as a grant of the remainder or reversion, as deeds often do, which would be inoperative but for an outstanding term of years. [PATTESON, J. You contend that wherever there is a term of years outstanding, there can be no estate in possession in the freehold.] The argument goes that length. The estate for years and the estate in fee, carved out of the same inheritance, "subsist together, the one in possession and the other in expectancy." 2 Blac. Com. 164. [PATTESON, J. As to the possession of the land, no doubt that is so.]

But, secondly, if the fine worked a discontinuance, it divested the reversion in fee, and turned it into a right of action; that right, not being a devisable interest, could not pass by Edward Allen's will, but descended to the right heirs of the settlor, that is to the defendants, who are admitted to be right heirs of Sir Thomas Állen. Upon the death of T. A. Greenalgh, Thomas, his son, being in of the legal estate, was remitted to the original estate tail under the settlement, and consequently to the reversion expectant on that estate tail; and on his death the reversion became vested in possession in the defendants. Where tenant in tail with immediate reversion in fee levies a fine, the reversion becomes *295] *a right, and such right is extinguished in the fee acquired by the fine. It is not correct to say that the reversion is accelerated. The title acquired by the fine is founded, not on the reversion, but on the fee which is derived from the seisin of the estate tail, and rendered indefeasible by the reversion being reduced to a right. It is true, all charges upon the reversion are let in; but that is only because, the title being perfected by the extinction of the reversion in fee, it would be unjust that such title should not be subject to the incumbrances of the reversion. In the present case Edward, who levied the fine, was not the immediate reversioner; there was a remainder interposed, and consequently the effect of the fine was, not to give him a fee-simple by the reversion becoming merged, but to discontinue the reversion. In Baker v. Hacking, Cro. Car. 587, 405, tenant in tail and reversioner in fee joined in a lease not warranted by 32 H. 8, c. 28, and it was held that the reversion was discontinued, and the reversioner, having only a right, could not devise it. That case is, in principle, the same as this; only, here, the tenant in tail was himself the reversioner, but with a remainder interposed between the estate tail and the reversion. Then, however, it is contended, that although the reversion was turned into a right of action, which could not be devised, the tortious fee acquired by virtue of the fine was devisable, and had not been put an end to. Now, the defendants do not say that Thomas Allen Greenalgh, by his possession under the will of Edward, was remitted to an estate in fce claimable under the original settle*296] ment; for, by Edward's will, the legal interest was devised to trustees. But the estate limited to Thomas, the son of T. A. Greenalgh, was a legal estate and on the death of T. A. Greenalgh, Thomas, the son, had both the legal estate for life, and a right, by remitter, to the estate tail under the settlement, and to the reversion. Either, then, the remainders limited by the original settlement were not discontinued; or, if they were, the reversion also

was discontinued, and, not being devisable by Edward, it descended upon the right heirs of the settlor, and came into possession when the legal estate vested in them. In either case there is a sufficient answer to this action.

Follett in reply. As to the first part of the argument, there is no ground for saying, that because the tenant in tail had not an actual bodily possession, his fine did not divest the remainder. All that is meant, when the books lay it down that the tenant must be in possession by virtue of the entail, is, that he must be actually seised of the freehold; he must have seisin of the estate tail by virtue of the entail itself, otherwise there is no discontinuance. It was so held in Driver dem. Burton v. Hussey, 1 H. Bl. 269. According to the argument on the other side, no fine could work a discontinuance where there was a term of years or a tenancy from year to year. The authorities cited only shew that a fine cannot so operate where there is an estate of freehold outstanding. In Doe dem. Maddock v. Lynes, 3 B. & C. 388, the question was, as to the operation of a feoffment to bar a term, and the Court decided that it did not so operate, because it was a feoffment made tortiously, without the *assent of the termors. In Baker v. Hacking, Cro. Car. 387, 405, the reversion [*297 was expectant on a freehold. The like answer applies to Briscot v. Chamberlaine, Moore, 255. To shew that the interest of the tenant in tail in this case (a freehold limited after a term of years), was a remainder which would pass by grant, reference was made to a passage in Co. Litt. 332, a. But the context is as follows: "It is a maxim in law, that a grant by deed of such things as do lie in grant, and not in livery of seisin, do work no discontinuance. But the particular reason is, for that of such things the grant of tenant in tail worketh no wrong, either to the issue in tail, or to him in reversion or remainder." But "reversion or remainder" there, means reversion, &c., expectant on an estate of freehold; and this is proved by another passage in the same page. "If tenant in tail make a lease for years of lands, and after levy a fine, this is a discontinuance; for a fine is a feoffment of record, and the freehold passeth. But if tenant in tail maketh a lease for his own life, and after levy a fine, this is no discontinuance, because the reversion expectant upon a state of freehold which lieth only in grant passeth thereby." In Com. Dig., Discontinuance, (C) 3, and the authorities there cited, the rule established is, that a fine by tenant in tail does not operate where the estate tail is expectant on a freehold estate; and it is there said, that "if it be after a lease by him for years, it will be a discontinuance; for then the freehold passed by the fine, and all the estates are displaced." Whether or not the reversion expectant on a term of years will pass by grant, it is unnecessary to discuss; the question here is, whether the party was seised of the freehold by virtue of the entail: if the existence of a prior term of years prevented a discontinuance, scarcely any fine would [*298 be effectual, since there is hardly a case where the tenant in tail levying a fine is in actual bodily possession of the land. It was contended that this was not a discontinuance, because a tortious title was acquired by the party levying the fine; but without discussing this, (though a distinction is drawn in the books between an estate so acquired and the wrongful estate gained by a disseisor, and in fact the fine only enables a tenant in tail to aliene his estate as, before the statute de donis, he might have done without any fine,) it is sufficient to say, that the effect of a fine to give a complete estate in fee, capable of being conveyed or devised as such, has long been recognized, and no new rule can be introduced upon the subject.

As to the other point; it is contended that the ultimate reversion, which was in the right heirs of the settlor, (not in those of Sir Thomas Allen, though it is assumed on the other side that both are the same,) and which reversion descended to Edward Allen, was divested by the fine; and this may be conceded. But Edward had a new estate in fee by that fine: and as to the supposed remitter of Thomas, the son of T. A. Greenalgh, that, if Thomas entered under the will of his father, was barred by the father's recovery, so long as the recovery (although