soil, and by distinct titles. In Heddey v. Welhouse (Moore, 474), this distinction is taken, "If the King grant a fair or market with toll certain to one and his heirs, to be holden in land which is borough English, and the grantee die, the heir at the common law shall have the fair or market and the toll, but the younger son shall have the piccage and stallage with the soil by custom." The mere use, though exclusive of land, does not entitle a party to maintain trespass. Thus trespass will not lie for disturbance of a pew, in which a party claims no interest, but only to sit there, Dawtree v. Dee (Palm. 46. 2 Roll. Rep. 139), Stocks v. Booth (1 T. R. 428). So in the case of rights of common and private rights of way, trespass will not lie for an infringement of those rights. In Comyn's Digest, Trespass, D, it is laid down generally, that trespass quare clausum fregit does not lie where damage is done to a privilege, liberty, or easement which a man has in the soil of another, but he may have an action on the case. In all these cases, he has the use of the land, and profits and advantages arising out of the land; but still, having no tangible interest, trespass will not lie. At all events a limited use, such as that which this company has, is not sufficient. There must be a sole and exclusive use, as a sole and exclusive pasturage of cows in particular meadows, Birt v. Moore (5 T. R. 329). Commissioners [127] of sewers who have only a bare authority, and no estate or interest, cannot maintain trespass, The Duke of Newcastle v. Clarke (8 Taunt. 602). So commissioners under an Inclosure Act have no possession of the soil, Driver v. Simpson (8 Taunt. 614, note). So the conservators of a river, whose duties are defined by the 1 Hen. 4, c. 12, to be to survey and keep the waters and great rivers, and to amend defaults, are not occupiers of the river. Lord Hale, De Jure Maris, c. 5, p. 23 (1 Hargrave's Law Tracts), describes them as river scavengers. In modern times, the undertakers of a navigation purchase land, and cut their canals through the land purchased. They are the occupiers of that land, and the tolls are the profits derived from the use of it. But where undertakers, as in this case, have a mere right to be exercised in the soil of another, they have no occupation of the land, but a mere easement on it. Buckeridge v. Ingram is an authority to shew that the proprietors of this navigation had no interest in the soil, but a mere easement on it. There are many instances where rivers have been made navigable under powers granted by Act of Parliament. By the Statute 16 & 17 Car. 2, power was given to certain undertakers to make the river Itchin navigable; but the Act of Parliament did not vest the soil of the river in those undertakers, but gave them rights to be exercised in alieno solo, very similar to those granted to the undertakers by the Statute of Anne; and in Hollis v. Goldfinch (1 B. & Č. 205), this Court held that the proprietors had no occupation of the soil, but a mere easement on it, and that they could not maintain trespass. The river Avon is a highway; [128] it is a river common to all the King's subjects, Vin. Abr. Chemin. A, Hawk. P. C. c. 76, s. 1, and Rex v. Severn and Wye Railway Company (2 B. & A. 246). The undertakers ought to be considered as trustees or public officers, like commissioners of sewers, or trustees of a turnpike road. The cases relied upon by the other side are distinguishable. In Rex v. Cardington (Cowper, 581), the rate was imposed on the sluices which were vested in the proprietors. In Rex v. Palmer (1 B. & C. 546), the grantee was to enjoy the cuts in as ample a manner as if the same had been conveyed to him; and in Rex v. The Earl of Portmore (1 B. & C. 551), the company had the soil vested in them. In Rex v. M'Donald (12 East, 324), the trustees were in the occupation of the locks. Then as to the cuts, there is no distinction between them and the bed of the river, for the undertakers have a mere right of making those cuts in the soil of another. The same observation applies to the sluices. They are not distinguishable from sluices made by commissioners of sewers. Cur. adv. vult. Lord Tenterden C.J. now delivered the judgment of the Court. In this case the rate was imposed in respect of locks, sluice, and land covered with water, and for profits arising from the same. The sessions on appeal amended the rate by striking out the words, "land covered with water." The question in this case was precisely the same as that in The King v. The Company of Proprietors [129] of the Irwell and Mersey Navigation. We were of opinion in that case, that the land covered with water was not in the occupation of the Company of Proprietors of the Irwell and Mersey Navigation, and, therefore, that they were not rateable in respect of the same; and upon the same ground in this case, we are of opinion that the proprietors of the navigation are not occupiers of the land covered with water, being part of the river Avon, and are not liable to be rated in respect of the same; and, consequently, the Court of Quarter Sessions properly amended the rate by striking out the words, "land covered with water, being part of the river Avon." We agree with the Quarter Sessions in deciding, that the cut or navigable canal which was actually made by this company upon land purchased by them, and the lock which is erected on such land, are according to all the authorities fit subjects to be rated for the poor; and this our opinion being conformable to that of the Quarter Sessions, the effect is, that the rule for setting aside the order of the Court of Quarter Sessions must be discharged. Order of sessions confirmed. [130] FREAKLEY against EDWARD Fox. Wednesday, February 11th, 1829. Where the payee and holder of a promissory note appoints the maker his executor, the debt is discharged, and no action can be maintained on the note, even by a person to whom the executor has indorsed it. [S. C. 4 Man. & Ry. 18; 7 L. J. K. B. O. S. 148. Approved, In re Bourne, [1906] 1 Ch. 703, 710.] Assumpsit. The first count of the declaration stated, that the defendant on, &c. made his promissory note, and thereby promised to pay on demand to one R. Reeves in his lifetime, since deceased, or order 3001. and interest, and delivered the note to Reeves. That Reeves made his will, and appointed E. C., C. C., E. A., and Edward Fox executors thereof; and Reeves afterwards died, and thereupon the said E. C., C. C., E. A., and Edward Fox duly proved the will, and took upon themselves the burden of the execution thereof; and afterwards, and before the indorsement hereinafter next mentioned, to wit, on, &c. C. C., one of the said executors died, and the said E. C., E. A., and Edward Fox, so being surviving executors of the last will and testament of Reeves, afterwards, to wit, on, &c. as such surviving executors, indorsed the note to the plaintiff, whereby, and by force of the statute, &c. defendant became liable to pay the money in the note specified to the plaintiff. The second count varied only by stating the indorsement to have been made by E. A., being one of the executors of Reeves. The defendant pleaded, thirdly, that R. Reeves, the testator, on, &c. duly made his last will, and thereof constituted and appointed the defendant, together with E. C., C. C., E. A. joint executors, and died, without altering or revoking his said will; and that afterwards, and after the death of Reeves, and before the said supposed indorsement of the said promissory notes, defendant duly proved the will of [131] Reeves, and took upon himself, together with E. C., C. C., and E. A. the burden of the execution thereof. Replication, that Reeves by his said last will, after giving and bequeathing divers legacies to divers persons, gave all the residue of his personal estate to the said E. C. and C. C., their executors, administrators, and assigns, in equal shares, and that Reeves did not by his said will forgive the said defendant the said debts due to him upon and by virtue of the said promissory notes, and did not, in or by his said will, or by making the defendant one of the executors thereof, release or intend to release to him the said defendant the said debts, or either of them; and that the said several sums of money in the said notes mentioned, being and remaining respectively due, owing, and unpaid, the said defendant, after the death of the said Reeves, and before the said indorsements of the said notes, or either of them, to the plaintiff as aforesaid, to wit, on, &c. recognized and confirmed the said notes as valid and subsisting, and paid to the said co-executors certain sums of money as and for, and then and there being interest on the said sums of money in the said notes specified, to wit, &c. And that after the said payments of interest, the said E. C., E. A., and defendant, indorsed the said note in the first count mentioned, and E. A. indorsed the note in the second count mentioned, to the plaintiff, as in the first and second counts respectively is alleged. Demurrer and joinder. Campbell in support of the demurrer. The plea is a good answer to both the counts on the promissory note, and the replication does not give any sufficient answer to it. In the declaration, the defendant is charged as [132] maker of the note. It is not stated that the defendant indorsed the note. If it had been averred that the defendant Edward Fox indorsed the note, he could not have pleaded in abatement the non-joinder of his co-executors; it is clear, therefore, that the charge is not against him as executor. The allegation that the defendant indorsed the note, is for the first time introduced in the replication. If that is meant to charge him as executor, it is a departure from the declaration. But, assuming that it may be held that the first count charges the defendant as an executor indorsing the note, the action is not maintainable; for the holder, by appointing the maker his executor, extinguished the debt, and there was no interest in the note which the executors could assign, Wankford v. Wankford (1 Salk. 299), Cheetham v. Ward (1 B. & P. 630), Sir John Nedham's case (8 Co. 134), where a distinction is taken between the appointment of a debtor to be executor or administrator. The former, being the act of the creditor, extinguishes the debt; the latter, being the act of the Ordinary, does not. Then, as to the indorsement by one executor as alleged in the second count, it is true, that in Rawlinson v. Stone (3 Wils. 1), it was resolved, after much debate, that an administratrix might indorse a promissory note; but there is no authority for saying that an indorsement by one of several executors can make them all personally liable. F. Pollock contrà. The plaintiff is entitled to proceed against this defendant either as maker or indorser of the promissory note. It is argued on the other side, that [133] the appointment of a debtor as executor to the creditor is a release of the debt; but that doctrine does not apply to negotiable instruments. That the debt is not absolutely released is clear; for in equity the executor is held to be a trustee of the amount for the payment of debts or legacies, Berry v. Usher (11 Ves. 87). But the remedy by action is gone, and on that account the idea of the debt being released has prevailed, Com. Dig. Release, A, 2. Co. Lit. 264 b. And it will be found that Wankford v. Wankford, and all the cases upon the subject, relate to debts not transferable. Now, although in general the action is gone, for the technical reason that an executor cannot sue himself, that does not apply where by indorsement the right of action may be vested in a third person. As to an indorsement by one of several executors, that must be sufficient in order to transfer the property in the note, as well as to release a debt, or convey a term of years; and this objection is only applicable to the second count. Cur. adv. vult. The judgment of the Court was now delivered by Lord Tenterden C.J., who, after stating the pleadings, proceeded as follows: On behalf of the defendant it was contended, that by the appointment of the maker to the office of executor of the creditor, the note was discharged; so that an indorsement, even by the debtor himself, could not set it up and make it a binding instrument; and we are of that opinion. The expression used in the cases of Wankford v. Wankford, and Cheetham v. Ward, is that the debt is discharged. It is considered [134] to have been paid by the executor to himself, and becomes assets in his hands. Upon this supposition the rule in equity depends which makes the executor accountable for the amount of his debt as assets. Upon the ground that the debt is gone, our judgment in this case must be for the defendant. Judgment for the defendant. PELLEW against THE INHABITANTS OF THE HUNDRED OF WONFORD IN THE COUNTY OF DEVON. 1829. In an action against the hundred on the 9 G. 1, c. 22, to recover damages for the injury done to premises maliciously set on fire: Held, first, that a reversioner may sue for the injury which he has sustained; secondly, that if no servant of his had the care of the premises, he is the proper person to give in the examination; thirdly, that he is not bound in such examination to state his suspicions as to the offender; fourthly, that the two days allowed by the statute for giving notice of the offence are exclusive of the day on which the fire happens. [S. C. 4 Man. & Ry. 130; 7 L. J. M. C. O. S. 84. Approved and applied, This was an action on the case, brought to recover satisfaction for damage by fire to certain barns and outhouses, which were described in the declaration as being at the time of the fire in the occupation of one John Otton, and the reversion whereof, after a certain term of years then running and unexpired, was then and there belonging to the plaintiff. At the trial before Park J. at the Spring Assizes, 1827, for the county of Devon, the plaintiff was nonsuited, subject to the opinion of this Court on the following case: The plaintiff before and at the time of the fires hereinafter mentioned, was and still is the proprietor of an estate called Canonteign, in the parish of Christow, and within the hundred of Wonford, and county of Devon. Upon this estate stood a large house, formerly a mansion, but for many years past used as a farm-house; and this house, with an extensive range of barns and other outhouses belonging thereto, formed the barton of Canonteign. The house, barns, and outhouses, except one stable and another of [135] the outhouses used as a dog-kennel, long before and at the time of the fire, were in possession of John Otton, as tenant to the plaintiff; Otton, with his wife and family, residing in the house, and occupying the greater part of it. The other part of the house was occupied by John Pennington, the plaintiff's gamekeeper, who had lived there some years with his wife and family; and he also used the said stable and dog-kennel, but had nothing to do with the other outhouses. The plaintiff himself resided at Stokelake, in the parish of Hennock, about four miles from Canonteign. On the morning of Saturday the 9th of July 1825, the plaintiff, with some other gentlemen, his friends, went from Stokelake to Canonteign barton; and, taking Pennington with them, were afterwards engaged in shooting rabbits in a part of the estate distant about a quarter of a mile from the barton, on the top of a high hill, which commanded a view of the mansion and of all the outbuildings. While they were so engaged, at about two o'clock P.M., fires were observed to break out in several parts of the premises, first in one of the barns, and then in another barn distant 300 yards from the first; afterwards in the dog-kennel, which was separated from the said last-mentioned barn; and then in other of the outbuildings. The fires were immediately seen by the plaintiff, and he, as well as the persons with him, hastened to the spot, and were actively employed for a considerable time in endeavouring to extinguish the flames. The barns and outhouses were, however, burnt down. The plaintiff did not leave the place till about five o'clock P.M., when it was supposed the fire had been subdued; but it broke out again in part of the ruins, and was burning a little between one and two [136] o'clock on the following morning, On the day of, and long previously to the fire, Otton, his wife and family, and Pennington and his wife and family, were all living upon the premises as aforesaid; and Otton had in his employ upon the premises several farming servants. Otton and several other persons known to the plaintiff were present in the barton, amongst the buildings, when the fire broke out, and when the plaintiff, his friends, and Pennington, came there from the hill; and one of those persons, not a servant of Otton's, shortly afterwards discovered a ball of flax on fire under some straw in one of the outbuildings, not then in flames; of which fact the said plaintiff was then informed. The damage done to the barns and other outhouses in the possession of John Otton greatly exceeded the sum of 2001., and the fire was wilful and malicious. The plaintiff, on the evening of the same day after his return home, mentioned to one of his friends the name of a person whom he suspected to be the author of the fire, and he retained the same suspicion long after the time of his examination hereinafter mentioned. On Monday the 11th of July, before two o'clock P.M., notice of the offence was given by the plaintiff to four inhabitants of the village of Christow, that being the nearest village to Canonteign, and in the same parish. On the 14th of the same month the plaintiff gave in his examination upon oath to a magistrate of the county, being the magistrate resident nearest to Canonteign, at the distance of about a mile and a half from that place. The examination stated, "That on Saturday last, the 9th day of this instant July, the barns and outhouses, part of the barton of Canonteign, situate in the parish of Christow, in the hundred of Wonford, and said county [137] of Devon, and now in the possession of John Otton, and the property of him the said Pownall Bastard Pellew, were unlawfully, wilfully, maliciously, and feloniously set on fire; and this deponent further saith, that he does not know the person or persons who committed the said offence, or any of them. "Pownall Bastard Pellew." No other person was examined. At the following Christmas Otton gave up his interest in the estate, and the plaintiff took possession of it. The repairs which have been done to the buildings injured or destroyed by the fires have been done under the plaintiff's orders, and at his expense. Praed for the plaintiff. Four objections will be raised to the plaintiff's right to |