tom that the remainder-man coming into possession on the death of tenant for life shall be admitted and pay a fine, is a good custom (m). An heir at law may devise his copyhold estate, without having been admitted, and without previous payment of the lord's fine (n). The devisee of a copyhold or customary estate, which had been surrendered to the use of the will, having died before admittance, it was holden, that her devisee, though afterwards admitted, could not recover in ejectment; for the admittance of the second devisee had no relation to the last legal surrender, and the legal title remained in the heir of the surrenderor (o). But see 7 Will. IV. & 1 Vict. c. 26, s. 3.

4. Corporation aggregate, Carth. 390; 12 Mod. 113, or sole. 5. Devisee, 1 Inst. 240, b.

6. Grantee of rent-charge, with a power to retain until satisfaction, 1 Saund. 112.

7. Guardian in socage may make a lease for years, and his lessee may have an ejectio firma, per three justices, Cro. Jac. 99; Adm. Hutt. 16, 17. Guardian in socage may make a lease of the infant's estate until his age of fourteen years, and upon such lease the lessee may maintain an ejectment. 2 Roll. Abr. 41, (Q.) pl. 4. Guardian in socage may bring trespass or ejectment in his own name, or make a lease of the land in his own name, until the infant arrive at the of fourteen. Per Cur., Lord Raym. 131 (8).

8. Infant, per Mallett, J., March, 143.

age

9. Legatee of a chattel real may maintain ejectment against executor (p) or a stranger (q); but the assent of the executor to the bequest must be proved.

10. Mortgagee, Doug. 21; Salk. 245; Str. 413 (9).

(m) Doe d. Whitbread v. Jenny, 5 East,

522.

(n) Wright v. Banks, 3 B. & Ad. 664. (0) Doe d. Vernon v. Vernon, 9 East, 8,

Where a

cited per Cur., Doe d. Winder v. Lawes,
7 A. & E. 213.

(p) Doe v. Guy, 3 East, 120.
1 Str. 70.

(8) Guardian appointed by deed, or will in writing, attested by two witnesses under the stat. 12 Car. II. c. 24, ss. 8 & 9, has the same interest in all respects as a guardian in socage had before, except that such guardian may hold his office for a longer time than the guardian in socage could; viz. until the heir attain the age of twenty-one. The next of kin not inheritable were the persons entitled to be guardians in socage; but, under the statute, the person appointed by the father shall be guardian. See Vaughan, 179, and 1 P. Wms. 102. See also several learned notes on the subject of guardianship in Harg. Co. Litt. 88, b.

(9) But by stat. 7 Geo. II. c. 20, s. 1, Where any action of ejectment shall be brought by any mortgagees, their heirs, executors, &c., and no suit shall be depending in equity for foreclosing or redeeming such mortgaged lands, if the person having right to redeem, and who shall appear and

clause in a mortgage deed operates as a redemise to the mortgagor, it was holden that a notice to quit given by him in his own name to a tenant let into possession by him before the mortgage, enabled him to recover in ejectment on his own demise (r). Where a railway act, 4 & 5 Will. IV. c. 3, gave a form of a mortgage by which the company were to assign "the said undertaking and all and singular the rates, tolls, and other sums arising, &c;" it was held, that by such mortgage the mortgagee did not acquire a title to the land, and that he could not bring ejectment as on a demise "of the said undertaking and all and singular the rates, tolls, &c.," arising by virtue of the act (s).

a.

11. Personal representative, stat. 4 Edw. III. c. 7; 4 Rep. 94, ; 1 Vent. 30.

12. Provisional assignee of Insolvent Debtors Court. Doe d. Clark v. Spencer, 3 Bingh. 203, even without the authority of that court or the creditors to sue. Doe d. Spencer v. Clark, 3 Bingh. 370. But insolvent himself, after such assignment, cannot maintain ejectment (t); although provisional assignee has not taken possession, nor permanent assignee been appointed, nor rent withheld from lessor. See stat. 1 & 2 Vict. c. 110, ss. 37, 50.

13. Tenant by elegit.

14. Tenant in common may maintain ejectment against his companion upon an actual ouster, Litt. sect. 322; Doe d. Wawn v. Horn, 3 M. & W. 333.

(r) Doe d. Lyster v. Goldwin, 2 Q. B. 143; 1 G. & D. 463; and see Doe d. Parsley v. Day, ib. 147.

(8) Doe d. Myatt v. St. Helens Rail

way Co. 2 Q. B. 364, & 1 G. & D. 663.
(1) Doe v. Andrews, 4 Bingh. 348, Best,
C. J.,
diss.

become defendant, shall, pending such action, pay unto the mortgagees, or, in case of refusal, bring into court, principal, interest, and costs, expended, either in law or in equity, upon such mortgage; the monies so paid or brought into court, shall be in satisfaction of such mortgage, and the court shall discharge the mortgagor or defendant from the same, and compel the mortgagees, by rule of court, at the costs of the mortgagor, to reconvey the mortgaged lands, and deliver up all deeds and writings in their custody relating to the title." N. There must be an affidavit that there is not any suit in equity depending. After judgment for the plaintiff in ejectment, the mortgagor prayed to bring the money into court on the preceding statute; but per Page and Chapple, Js., the statute gives liberty to do it, pending the action : but, after judgment, the action is not depending; the application, therefore, was refused. Wilkinson d. Lock v. Traæton, B. R. M.; 14 Geo. II. Serjeant Leeds' MSS. This statute contains a proviso (sect. 3), that it shall not extend to any case, where the party praying a redemption has not a right to redeem, &c. Hence, where the mortgagor has agreed to convey the equity of redemption to the mortgagee, the court will not stay proceedings. Goodtitle d. Taysum v. Pope, 7 T. R. 185.

N. Committee of a lunatic's estate cannot bring an ejectment, Hob. 215; Hutt. 16.

The stat. 11 Geo. II. c. 19, s. 16, extended by stat. 57 Geo. III. c. 52, authorizes two justices under certain regulations to put landlords into possession, where tenants desert the premises, and leave the same uncultivated or unoccupied, so as no sufficient distress can be had. Where a tenant ceased to reside on the premises for several months, and left them without any furniture or other property sufficient to answer the year's rent; it was holden, that the landlord might proceed under the stat. 11 Geo. II. c. 19, s. 16, although he knew where the tenant then was, and although the justices found a servant of the tenant on the premises, when they first went to view the same. Exp. Pilton, 1 B. & A. 369.

Difficulties having frequently arisen, and considerable expenses having been incurred by reason of the refusal of persons, who had been permitted to occupy, or who had intruded themselves into parish houses, to deliver up possession of such houses, by stat. 59 Geo. III. c. 12, s. 24, two justices are empowered, in such cases, to cause possession to be delivered to churchwardens and overseers. The mode of proceeding is prescribed by the statute. This statute was not intended to take away a right which the owner of property had at common law to enter and take possession, if it could be done peaceably, but to provide an expeditious mode, whereby parish officers might obtain possession where it was obstinately withheld; and that they might not do that which had before been sometimes done, viz. might not turn occupiers out vi et armis, which led to further expense and litigation. The provisions of the statute are equally applicable, whether the party has wrongfully intruded himself into the premises, or has been suffered by the parish officers to occupy them.

The 17th section (u) empowers the churchwardens and overseers, and their successors, to accept and hold, in the nature of a corporation, all real property belonging to the parish. But they are not by this statute made a proper body corporate; and therefore a demise to them is effectual, upon their assent and entry, without their acceptance by an instrument under seal (x). In a case where it did not appear who had the legal property at the time of the act passing, but rent had been paid to the churchwardens and overseers as such; it was holden (y), that the property belonged to the parish, and that the present churchwardens and overseers might recover the same, having given a notice to quit, although defendant claimed to hold under a lease granted by former churchwardens and overseers, for an unexpired term; inasmuch as such lease having been

(u) See now 5 & 6 Will. IV. c. 69, ss. 7 and 8, similar provisions as to guardians. (x) Smith v. Adkins, M. & W. 362; and see Gouldsworth v. Knights, 11 M. &

W. 337.

(y) Doe d. Higgs v. Terry, 4 A. & E. 274, recognizing Doe v. Hiley; Doe d. Hobbs v. Cockell, 4 A. & E. 478, S. P.

granted before the act, it conveyed no legal interest; and the defendant therefore might be treated as a tenant from year to year, whose tenancy had been determined by the notice.

By stat. 5 & 6 Will. IV. c. 69, s. 5, the powers given by the 59 Geo. III. c. 12, are extended to houses and lands vested in guardians of an union or parish (z).

This statute confers upon the guardians very extensive powers over the parish property, but is quite consistent with the continuance of the legal estate in other persons, and is not sufficient to devest property out of the parish officers (a). A pauper had removed from a parish house; the overseers entered, resumed possession, and afterwards carried away the furniture which belonged to them it was holden (b), that they were justified in so doing, without giving any notice to quit, and were not bound to pursue the mode pointed out by the foregoing statute; for that did not apply. Under this act, property held by trustees for the benefit of a parish, vests in the churchwardens and overseers (c), where there are not any known feoffees in existence, nor any other person in whom the legal estate is vested (d); and the statute extends to tenements, the profits of which are applicable to the purpose for which a churchrate is levied (e); but not to a case where the trust is for a special and not for general purposes, and where the land for which the profits are to be applied cannot be called parish property (ƒ).

By a late act, 1 & 2 Vict. c. 74, for facilitating the recovery of possession of tenements after due determination of the tenancy, in cases where there is no rent, or where the rent does not exceed 201., and when the tenancy is either at will or for a term not exceeding seven years, summary proceedings may be had. On the construction of sections 3 & 6 of this statute, it has been holden, that a party who even obtains a warrant improperly, will be considered a trespasser (g).

III. For what Things an Ejectment will lie.

In general an ejectment will lie to recover the possession of any thing whereon an entry can be made, and whereof the sheriff can deliver possession. Hence an ejectment will lie for the recovery of acres of alder carr in Norfolk, because alder carr is a term

(z) See 5 & 6 Vict. c. 18, in which this act is explained and amended.

(a) Doe d. Norton v. Webster, 12 A. & E. 442; 4 P. & D. 270.

(b) Wildbor v. Rainforth, 8 B. & C. 4. (c) Doe d. Jackson v. Hiley, 10 B. & C. 885.

(d) Per Denman, C. J., Allason v. Stark, 9 A. & E. 255.

(e) Doe d. Jackson v. Hiley, 10 B. & C. 885.

(f) Allason v. Stark, 9 A. & E. 255. (g) Darlington v. Pritchard, 4 M. & Gr. 783; 5 Scott's N. R. 610.

well known in that county, and signifies the same as alnetum, Barnes v. Peterson, Str. 1063.

Beastgate in Suffolk, Bennington v. Goodtitle, Str. 1084.
Bedchamber, 3 Leon. 210.

acres of bogge in Ireland, Cro. Car. 512.

Cattlegate in Yorkshire (10), Metcalf v. Roe, B. R., M. 9 Geo. II. Ca. Temp. Hardw. 167.

Church, by the name of a messuage, Salk. 256.

Coalmine, Comyn v. Kyncto, Cro. Jac. 150.

de mineris carbonum in county palatine of Durham, Carth. 277.

Common of pasture adjudged good after verdict; for it shall be intended such common of pasture as an ejectment will lie for, viz. common appendant or appurtenant, Newman v. Holdmyfast, Str. 54.

Cottage, Hill v. Giles, Cro. Eliz. 818.

acres of furze and heath, and

marsh, Connor v. West, 5 Burr. 2673.

House, Royston v. Eccleston, Cro. Jac. 54.

acres of moor and

part of a house, known by the name of the Three Kings in A., Sullivan v. Seagrave, Str. 695.

Land, and coalpit in the same land. Objection, that it is bis petitum. Answer, ejectio firma is a personal action, and plaintiff demands nothing certainly, Harebottle v. Placock, Cro. Jac. 21.

N. Under the description of land, the owner of the soil may recover land which is subject to a public easement, such as the king's highway; and a wall being built on the land, shall not vitiate the description, Goodtitle d. Chester v. Alker, 1 Burr. 133.

Messuage or tenement, called the Black Swan, 1 Sidf. 295.

acres of mountain in Ireland, Lord Kildare v. Fisher, Str. 71; Lord Kingston v. Babbington, 1 Bro. P. C. 71, Tomlin's edition.

Orchard, Wright v. Wheatley, Cro. Eliz. 854.

(10) Ejectment for ten acres of pasture cattlegates with their appurtenances, in a close called, &c. in Yorkshire. Motion after verdict in arrest of judgment, on the ground of uncertainty of description. Per Cur. Either cattlegate must be considered as pasture, and then it is synonymous with the word pasture preceding it; or else it must be taken for common of pasture for cattle, and then being after verdict it must be taken for common appurtenant, which is recoverable in ejectment. Metcalf v. Roe, M. 9 Geo. II. B. R.