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 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 (8), Metcalf v. Roe, B. R. M. 9 Geo. 2. 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 ejeetment 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

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

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

acres of

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 is bis petitum Answer, ejectio firma is a personal action, and

(8) Ejectment for 10 acres of pasture and castlegates with their appurtenances, in a close called, &c. in Yorkshire. Motion after verdict in arrest of judgment, on the ground of uncertainty of de-scription. 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 G. 2. B. R.

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 ed.

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

Rectory of B. and a certain place there called the Vestry, 3 Lev. 96, 97. Hutchinson v. Puller, adjudged on error in the Exchequer Chamber, and recognised in 2 Lord Raym.

1471.

Stable, 1 Lev. 58.

By virtue of the stat. 32 H. 8. c. 7. s. 7. an ejectment will lie for tithes, Priest v. Wood, Cro. Car. 301.

There is a case in 2 Lord Raym. 789. Camell v. Clavering, ex relatione magistri Cheshyre, where it is reported to have been holden, in the Court of Exchequer, that an ejectment would lie for small tithes.

Where an Ejectment will not lie.-But an ejectment cannot be maintained for a

Close, 11 Rep. 55. Godb. 53.

Manor, without describing the quantity and nature of land therein, Latch, 61. Lit. Rep. 301. Hetl. 146.

Messuage and tenement, Doe v. Plowman, 1 East's R. 441. (9). Messuage, garden, and tenement, Goodtitle v. Walton, Str. 834.

Messuage or tenement, Goodright on d. Welch v. Flood, 3 Wils. 23.

Messuage, situate in Coventry', in the parishes of A. and

t Goodright d. Griffin v. Fawson, 7 Mod. 457. 8vo. edit. 1 Barn. 150. S. C.

(9) But after verdict the court will give leave (even pending a rule to arrest the judgment on this ground) to enter the verdict according to the judge's notes for the messuage only. Goodtitle d. Wright v. Otway, 8 East, 357.

B. or one of them. Holden bad for uncertainty, after verdict, and that the words," or one of them," could not be rejected.

De peciâ terræ, Moor, 702. pl. 976.

De castro, villå et terris, Yelv. 118.

Ejectment will not lie for things that lie merely in grant, which are not in their nature capable of being delivered in execution, as an advowson, common in gross, Cro. Jac. 146.

An ejectment will not lie for libera piscaria, Cro. Jac. 146. Cro. Car. 492. 8 Mod. 277. 1 Brownl. 142. contra per Ashhurst, J. 1 T. R. 361.

Nor pro quodam rivulo sive aquæ cursu, called D. Yelv. 143. nor for Pannage, 1 Lev. 212.

The owner of the fee by indenture granted to A., his partners, fellow adventurers, &c. free liberty to dig for tin and all other metals throughout certain lands therein described, and to raise, make merchantable, and dispose of the same to their own use; and to make adits, &c. necessary for the exercise of that liberty, together with the use of all waters and watercourses, excepting to the grantor, liberty for driving any new adit within the lands thereby granted, and to convey any watercourse over the premises granted, habendum for twentyone years; covenant by the grantee to pay one-eighth share of all ore to the grantor, and all rates, taxes, &c. and to work effectually the mines during the term; and then, in failure of the performance of any of the covenants, a right of reentry was reserved to the grantor, it was holden that this deed did not amount to a lease, but contained a mere license to dig and search for minerals, and the grantee could not maintain an ejectment for mines lying within the limits of the set, but not connected with the workings of the grantee.

IV. In what Cases an Entry must be made on the Land before Ejectment brought.

In some cases before an ejectment can be brought, some previous steps must be taken, in order to entitle the plaintiff to the action; as an entry must be made on the lands in question, or notice to quit must be given, &c. Under what circumstances these proceedings will be necessary, will appear from the following remarks:

An actual entry is necessary, to avoid a fine levied with proclamations, according to the stat. 4 H. 7. c. 24.; and an ejectment cannot be brought until such entry has been made*. And by stat. 4 Ann. c. 16. s. 16. the action must be commenced within one year next after the making such entry, and prosecuted with effect.

N. The plaintiff must lay his demise on a day subsequent to the day of the entry.

But an actual entry is not necessary to avoid a fine at common law, without proclamations: nor a fine with proclamations, if all the proclamations were not made at the time when the ejectment was brought; nor a fine which has no operation, as a fine levied by son of tenant at sufferance, or a fine levied by tenant for years; nor to maintain an ejectment on a clause of re-entry for non-payment of rent (10). So if one of two tenants in common of a reversion levy a fine of the whole, such fine does not require an actual entry by the other tenant in common to avoid it.

Where tenant for life levies a fine with proclamations, although it is not any bar to those in remainder, yet a remainder-man must make an actual entry, in order to avoid it, before he can maintain ejectment; but he need not enter until five years after the death of tenant for life.

An entry upon an estate generally, is an entry for the whole; if it be for less it should be so defined at the time.

In a case where a party had a right of entry upon condition broken, and a stranger entered, and afterwards the plaintiff assented to such entry, and brought an ejectment laying the demise after the assent, it was holden sufficient.

x Berrington v. Parkhurst, Str. 1086. Compere v. Hicks, 7 T. R. 727.

y 2 Str. 1086. 7 T. R. 727.

z Jenkins on d. Harris and Wife, v. Prichard, 2 Wils 45.

a Doe d. Ducket and Ladbrooke v. Watts, 9 East, 17, in which Tapner d. Peckham v. Merlott, Willes, 177. was overruled.

b Doe v. Perkins, 3 M. and S. 271.

c Per Ld. Kenyon, C. J. in Peaceable
v. Read, 1 East, 575.

d Goodright v. Cator, Doug. 477.
e Roe v. Elliot, 1 B. & A. 85. See also
Doe v Harris, post, s. X.

f Compere v. Hicks, 7 T. R. 433. 727.
g Pomfret v. Windsor, 2 Ves. 481.
h Per Lorn Kenyon, C. J. 3 T. R. 170.
i Fitchet v. Adams, Str. 1128.

(10) To avoid a fine [i. e. a fine with proclamations, where all the proclamations have been made at the time when the ejectment is brought] there must be an actual entry. In all other cases, the confession of lease, entry, and ouster, is sufficient." Per Lord Mansfield, C. J. in Oates d. Wigfall v. Brydon, 3 Burr. 1897.

Where an ejectment is brought by a corporation aggregate they must execute a letter of attorney to some person, empowering him to enter on the land; but a verbal notice to quit, given by a steward of a corporation, is sufficient*.

Where lands are in the possession of a receiver', under an appointment of the Court of Chancery, an ejectment cannot be brought for the recovery of such lands, without leave of the court. Such receiver is authorised to determine tenancies from year to year by a notice to quit".

V. In what Cases a Notice to quit must be given before ejectment brought.-Requisites of Notice.-Waver of Notice.-Where Notice is not required.

THE old tenancy at will being attended with many inconveniences, the inclination of the courts has of late been to make every tenancy a holding from year to year, if they can find any foundation for it"; as if the lessor accepts yearly rent, or rent measured by any aliquot part of a year; and it has been considered as more advantageous to the parties, that such demises should be construed to be tenancies from year to year, so long as it shall please both parties; for in that case one party cannot determine the tenancy, without giving a reasonable notice to qnit to the other; with respect to which it may be laid down as a general rule, that half a year's (11) notice, expiring with the year of the tenancy, is a reasonable notice in all cases, except where a different period is esta

k Roe d. Dean and Ch. of Rochester v. Pierce, 2 Camp. N. P. C. 96.

1 Angel v. Smith, L. I. H. Feb. 1804. Eldon, C. 10 Ves.jun.335.

m Doe d. Marsack v. Read, 12 East, 59.

n See Richardson v. Langridge, 4 Taunt.

128. where the agreement was holden to be a tenancy at will; the premises being let so long as both parties liked, and a compensation reserved accruing de die in diem and not referrible to a year or any aliquot part of a year. o 13 H. 8. 15 b.

(11) By legal computation half a year contains 182 days; for the odd hours are rejected. 1 Inst. 135. b. But a notice served on the 28th of September to quit on the 25th of March, although the period contain only 179 days, has been holden to be a good notice. Doe d. Harrop v. Green, 4 Esp. N. P. C. 199. And Lord Ellenborough, in the same case, said, that a note on the 29th of September to quit at Lady-day following had been holden good.