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

9. Legatee of a chattel real may maintain ejectment against executord or a strangere; but the assent of the executor to the bequest must be proved.

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

Hutt. 16, 17. Guardian in socage may make a lease of the infant's estate until his age of 14 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 age of 14. Per Cur. Ld. Raym. 131. Guardian appointed by deed, or will in writing, attested by two witnesses under the stat. 12 Car. 2. c. 24. s. 8 and 9, has the same interest in all respects as a guardian in socage had before, with these exceptions: 1st. 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; 2nd. 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 Vaugh. 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 G. 2. 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 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. Traxton, B. R. M. 14 G. 2. Serjeant Leeds' MSS. This statute contains a proviso (s. 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.

11. Personal representative, stat. 4 Edw. 3. c. 7. 4 Rep. 94. a. 1 Vent. 30.

Doe

12. Provisional assignee of insolvent debtor's court. 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, although provisional assignee has not taken possession, nor permanent assignee been appointed, nor rent withheld from lessor.

13. Tenant by elegit.

14. Tenant in common may maintain ejectment against his companion upon an actual ouster, Litt. sect. 322.

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

The stat. 11 Geo. 2. c. 19. s. 16. extended by stat. 57 Geo. 3. 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 G. 2. 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. and 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. 3. 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

f Doe v. Andrews, 4 Bingh. 348. Best, C. J. diss.

premises, or has been suffered by the parish officers to occupy them.

The 17th section vests all real property belonging to the parish in the churchwardens and overseers in succession, as a corporation. 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, 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 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.

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, 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 overseersi; and the statute extends to tenements, the profits of which are applicable to the purpose for which a church-rate is levied.

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.

g Doe d. Higgs v. Terry, 4 Ad. & Ell. 274. recognizing Doe v. Hiley. Doe d. Hobbs, v. Cockell, 4 Ad. & Ell. 478. S. P.

h Wildbor v. Rainforth, 8 B. and C. 4.
i Doe d. Jackson v. Hiley, 10 B. & C.
885.
k S. C.

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. 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 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

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

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

acres of moor

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 ed.

(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 G. 2. B. R.

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.

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. (11), Messuage, garden, and tenement, Goodtitle v. Walton, Str. 834. But no ground for reversal on error, if demanded in same count; because when same count contains two demands, for one of which action lies and not for the other, all the damages shall be referred to the good cause of action.

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

Messuage, situate in Coventryb, in the parishes of A. and 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, villâ 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.

a Doe d. Laurie v. Dyeball, 8 B. and b Goodright d. Griffin v. Fawson, C. 70. 7 Mod. 457. 8vo. edit. 1 Barn. 150, S. C.

(11) 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.