leases was maintainable. Such leases therefore do not appear to have been within the mischief intended to be remedied by the statute, nor probably within the contemplation of the framers of the act, and Lord Coke in his observations on this statute, Co. Litt. 162. b. makes no allusion to leases for years, and evidently considers the statute as applicable only to freehold rents. Some authorities upon this subject remain to be noticed. The first is the case of Turner v. Lee (a) already cited, which arose on a lease for years determinable on a life, and the statute was held not to apply. The point does not appear to have been raised in any reported case from that time till the case of Renvin v. Watkin, Mich. T. 5 Geo. 2. B. R., which is to be found in the first vol. of Selwyn's Nisi Prius, p. 678. of the 8th edition. It is as follows: "A. seised in fee let to the plaintiff for twentyone years, and afterwards died seised of the reversion: the defendant administered, and distrained for half a year's rent due to the intestate, for which he avowed. On demurrer to the avowry it was objected that there was not any privity of estate between the administrator and the lessor, and therefore the avowry, which is in the realty, could not be maintained by him. And it was observed that this was a case out of the statute 32 H. 8. c. 37. for that only gives a remedy by way of distress for rents of freehold, and of this opinion the Court seemed. 1 Inst. 162. a. 4 Rep. 50. Cro. Car. 471. Latch. 211, (Wade v. Marsh), were cited." There is a note as follows: "But in Powell v. Killick, Middlesex sittings, M. 25 G. 2. where in trespass for entering plaintiff's house and carrying away his goods, upon not guilty, defend (a) Cro. Car. 471. 1832. PRESCOTT against BOUCHER. VOL. III. 3 K ant 1832. PRESCOTT against BOUCHER. ant gave in evidence that he was executor of A. who The next case was Meriton v. Gilbee (a), where the (a) 8 Taunt. 159. point point was attempted to be raised; but the Court said, that it did not appear whether the tenancy was for term of years or for life. Then came the case of Martin v. Burton (a), which was decided on the ground that it did not appear that the testator was not seised in fee, in tail, or for life. Afterwards the case of Staniford v. Sinclair (b) was decided on the same ground, though the Court in giving judgment examine into some of the cases, and into the point now raised, which was not necessary to the determination of the case (c). Upon the whole, therefore, and for the reasons stated, we are of opinion that this case is neither within the words nor the meaning of the statute 32 H. 8. c. 37. s. 1. and that the judgment of the Court must be for the plaintiff. Judgment for the plaintiff. (a) 1 Brod, & B. 279. (b) 2 Bing. 193. (c) See the cases on this subject collected and reviewed in E. V. Williams Law of Executors, vol. i. p. 602, &c. 1832. PRESCOTT against BOUCHER. Lowe and Another against Govett. TRESPASS for breaking and entering the plaintiff's closes. Pleas, not guilty, and liberum tenementum, Tuesday, June 12th. By act of par liament reciting that a certain tract of land upon which issue was joined. At the trial before Little- daily over flowed by the sea, and to which the king in right of his crown claimed title, might be rendered productive if embanked, and that his majesty had consented to such embankment, a part of the said land, called Lipson Bay, was granted to a company for that purpose. On one side of the bay was the northern side of an estate called Lipson Ground, forming an irregular declivity, in parts perpendicular, and in parts sloping down to the sea-shore and overgrown with brushwood and old trees. The company in embanking the bay, made a drain on this side, in the same direction with the cliff, cutting through it in parts, but leaving several recesses of small extent between the projecting points These recesses used to be overspread with sea-weed and beach, and were covered by the high water of the ordinary spring tides, but not by the medium tices: Held, in the absence of proof as to acts of ownership, that the soil of these recesser must be presumed to have belonged to the owner of the adjoining estate, and not to the crown; and did not, therefore, pass to the embankment company by the act of parliament. Quære, Whether upon issue joined on a plea of liberum tenementum, the plaintiff may prove twenty years' adverse possession; or whether it must be specially replied? 1832. LOWE against GOVETT. dale J., at the Devon Spring assizes 1828, a verdict was found for the plaintiffs, subject to the opinion of this Court upon the following case: By a public act of parliament, 42 G. 3. c. 32., after reciting that there was near Plymouth a tract of land known by the name of the Lairy, which was daily overflowed by the sea, and was thereby totally unproductive, but that if certain parts thereof called Tothill Bay and Lipson Bay were embanked, they might be cultivated and rendered of great public benefit; and reciting also that the king, in right of his crown and dignity, claimed title to the parts to be so embanked, and that his majesty had consented to such embankment; the parcel of land called Lipson Bay, part of the said Lairy, which was then a navigable arm of the sea, and daily overflowed by it, was granted for 500l. to a company incorporated by the act under the name of "The Company of proprietors for embanking part of the Lairy near Plymouth;" and they afterwards embanked Lipson Bay. On the southern side of the bay, at the time of this enibankment, was an estate called Lipson Ground, of which the defendant at the time of the alleged trespass was the owner and occupier, and which had been conveyed to him in 1824. The northern side of this estate was an irregular declivity, in parts perpendicular, and in parts sloping down to the sea-shore and overgrown with brushwood interspersed with old trees, particularly towards the top. Adjoining the cultivated closes of the estate, upon the top, was an irregular fence of bushes and trees, sufficient to protect the cattle there from falling over into the bay. At the northern extremity of the estate was an old quay, which before the embankment was used for the purpose of depositing manure for for the estate; it communicated with the closes on the top of the cliff by a path up the acclivity used for conveying the manure. After the embankment the quay ceased to be of use. The company, in embanking Lipson Bay, cut a gutter for drainage along the southern side of the bay, in the same direction with the cliff, and as near as it could be carried in a straight line, but leaving several recesses between points where the cliff projected beyond the general line. In some instances the extremities of these projections were cut through. The recesses, at the time when the drain was cut, were covered with sea-weed and beech; part of the soil of the drain, when dug out, was thrown upon their surface. Before the embankment the recesses used to be covered by the high water of the ordinary spring tides, but not by the medium tides between the spring and neap tides. The quay was never covered with water. It did not appear that the owners of the Lipson Ground estate had exercised any act of ownership on the recesses, and their situation and trifling extent had prevented any profitable occupation of them; but in 1812 an occupier of Lipson Ground had cut wood on the declivities of the cliff. In 1806 the company sold in lots a portion of the embanked land of Lipson Bay. The fences of these allotments were carried across the above-mentioned drain and rested on the cliff. The purchaser took possession in 1806, and continued possessed until 1826, when he died, leaving two daughters his co-heiresses, one of whom, and the husband of the other, were the present plaintiffs. The case then went on to state facts which raised the question whether or not the purchaser, in and after 1807, had exercised acts of ownership over 3 K 3 the 1832. Lowe against GOVETT |