with the appurtenances, and became and were possessed thereof, and interested therein, for the said term so to them therein granted as aforesaid. The plea then averred several assignments of the term, and entry and possession under each assignment, the earliest being an assignment of Branthwaite's moiety on 30th June 1826: and finally the whole interest in the term was regularly traced to the defendant, who took the same under an indenture of 29th November 1842. By virtue of which last mentioned indenture defendant afterwards, and during the continuance of the said term by the said indenture granted, which is not yet expired, and before any or either of the said times when &c., entered into and upon the said premises, powers and authorities, and became and was possessed thereof for the said residue of the said term so therein granted as aforesaid, which is not yet expired, and remained and continued so possessed thereof until and at and after the said several times when &c. Wherefore defendant, at the said several times when &c., in a lawful, proper and reasonable manner, in that behalf, did enter the said closes in the declaration mentioned, in order to search for, work, raise, get up, convey and carry away the coal &c. Which are the said several alleged trespasses &c. Replication: That defendant entered upon the said closes in which &c., and committed the said trespasses in the declaration mentioned, after the making and passing of a certain Act &c. (3 & 4 W. 4. c. 27.), and also after the 31st day of December 1833, to wit on 1st December 1847. That the said supposed right to make such entry did not first accrue to the said Richard Branthwaite and Thomas Prothero, or to any other person through whom the defendant claims the said interest in the said closes 1853. KEYSE V. POWELL. 1853. KEYSE V. POWELL. in which &c., or to the defendant, within the true intent and meaning of the said Act, at any time within twenty years next before the making of the said entry. By reason whereof, and of the said period of twenty years next before the making of such entry having fully expired before the making of the same, without such right of entry having first accrued as aforesaid at any time during the said last mentioned period, the right of the defendant to make such entry as aforesaid had been extinguished, according to the form and effect of the said statute, before and at the said several times when &c. Verification. Rejoinder: That the right to make the said entry did first accrue within twenty years next before the making of the said entry: conclusion to the country. Issue thereon. On the trial, before Williams J., at the Monmouthshire Summer Assizes, 1852, it appeared that the alleged trespass was committed by the defendant working the mine in the third plea mentioned. This took place in the year 1847. It was shewn that the places were copyhold of the manor, and that the several conveyances were effected as stated in the third plea, and according to the dates there given: but the jury found that, down to the act complained of, there had been no actual entry upon or working of the mine. The grant of 1821 purported to be made in consideration of 5001. paid by the two grantees to the grantor. It further appeared that, before and at the time of the grant of the term, Branthwaite, one of the grantees, was tenant from year to year, to the grantor Edmond Lewis, of the land under which the mine lay, and was in actual occupation of the surface. It did not appear by what conveyance this tenancy was created, nor whether there was any XVI. VICTORIA. exception or reservation of the mine. Branthwaite continued so to occupy the surface until his death, which occurred in 1831: and, in 1832, his executrix gave up possession of the surface to the then copyholder in fee. The copyhold estate in fee was shewn to have legally come to John Rees; who, at a court held on 19th February 1839, surrendered to the use of Barbara Keyse, wife of the plaintiff, and daughter of Edmond Lewis, to her use and behoof for life, remainder to the use and behoof of the customary heirs of her body by the plaintiff, and, in default of such issue, to the use and behoof of the plaintiff, his customary heirs and assigns: and Barbara Keyse was thereupon admitted to hold to the several uses aforesaid. She was living at the time of action brought. The learned Judge, upon this evidence, directed a verdict for the plaintiff on all the issues, reserving leave to move to enter a verdict for defendant on the issues upon the second and third pleas. In Michaelmas Term, 1852, Watson obtained a rule Nisi accordingly. The case was argued in last Hilary (a) and Easter (b) Terms. Whately, Keating and J. Gray shewed cause. First, as to the issue on stat. 3 & 4 W. 4. c. 27. The action is brought upon a trespass committed in 1847: and the question is, whether the entry of the defendant then made was barred by the statute. It is so barred, (a) January 28th, 1853, before Lord Campbell C. J., Coleridge, Wightman and Erle Js. and January 29th, 1853, before Lord Campbell C. J., Coleridge and Erle Js. (b) April 21st 1853. Before Lord Campbell C. J., Coleridge, Wightman and Erle Js. 1853. KEYSE v. POWELL.. 1853. KEYSE V. POWELL. under sects. 2, 3, unless a right of entry in the mine first accrued to the defendant, or some one through whom he claims, within the twenty years preceding 1847. The defendant insists on the lease of 1821, that is, on the estate or interest assured by an instrument "other than a will:" but, under this, the right first accrued at the time when the lessee "became entitled to such possession or receipt by virtue of such instrument:" The right of entry was therefore barred in 1841, and ever since. In answer to this, the defendant will contend that the lease, being for valuable consideration, had the effect of a bargain and sale for the term of ninety nine years (not requiring enrolment, under stat. 27 H. 8. c. 16., as conveying no estate of freehold), and that the Statute of Uses, 27 H. 8. c. 10. s. 1., vested the possession in the lessee. But the Statute of Uses does not extend to copyhold lands; Rowden v. Malster (a), Walker v. Walker (b), Gilbert on Tenures, p. 182, 1 Scriven on Copyholds, p. 86 (c). The lease therefore operated only at common law, and, till actual entry, gave no possession, but only an interesse termini; Doe dem. Rawlings v. Walker (d), Co. Litt. 270.a., Wheeler v. Montefiore (e). Further, the defendant insists that Branthwaite, being already in possession of the surface as tenant from year to year, was also in possession of the mine, and therefore could not actually enter, upon taking the lease of the mine; so that the possession would be only continued under the lease. But, first, Branthwaite would, by taking the lease, be estopped from denying that the lessor, under (a) Cro. Car. 42. 44. (b) 1 Ves. Sen. 54. (e) 2 Q. B. 133. whom the plaintiff claims, had power to grant the mine. Secondly, the lease was to him and another, Prothero. Now supposing that, where a tenant from year to year takes a lease of a longer term to himself alone, the possession is, primâ facie, to be construed as continuing without interruption under the lease, that presumption is negatived where the new interest is not given to the same party, but to him and another jointly. That the possession of the surface does not necessarily carry with it the possession of the mine appears from Rich dem. Lord Cullen v. Johnson (a), where the lord of the manor, in actual possession of the manor, was barred by a twenty years' possession of the mine, in ejectment for the mine: and the same principle is shewn from Curtis v. Daniel(b). The possession of the surface and the mine may go together: but the two may be separated; and then they are as distinct as several closes; Humphries v. Brogden (c). The defendant is in the position of a party who, having a term in an upper chamber, takes a lease of a lower one: he must enter into the lower chamber, or he will not be possessed of it. The plaintiff's possession of the land, including the mine, is derived from his wife a surrender was made to her, and she was admitted thereon, in 1839; and the plaintiff thereupon, without further conveyance, was possessed in her right. But the defendant is not copyholder: he has never been admitted himself, nor has any one through whom he claims been admitted: even a surrender, without admittance, would not make him tenant; Berry v. Greene (d), Rex v. Dame Jane St. John Mildmay (e). Next, the defendant contends that 1853. KEYSE V. POWELL. (a) 2 Str. 1142. (b) 10 East, 273. (d) Cro. Eliz. 349. (e) 5 B. & Ad. 254. |