executed in like manner; or by burning, tearing, or otherwise destroying it by the testator or some person in his presence, and by his direction, with the intention of revoking the same.

By section 21., a will shall be revoked by marriage, except a will made under a power, when the property would not, in default of appointment, go to the representatives of the testator.

By section 19., no will shall be revoked by any presumption of intention on the ground of alteration of circumstances.

By section 23., no conveyance or other act subsequent to the execution of the will (except an act by which a will may be revoked as above) shall prevent the operation of the will with respect to such estate or interest as the testator shall have power to dispose of by will at the time of his death.

By section 24., every will shall take effect as if executed immediately before the death of the testator, unless a contrary intention appear by the will.

By section 21., no obliteration, interlineation, or alteration, made after execution, shall have any effect (except so far as the words before alteration shall not be apparent) unless such alteration be executed in the manner required for a will; but the will, with such alteration, shall be deemed duly executed if the signature of the testator and subscription of the witnesses be made in the margin or on some other part, opposite or near to such alteration, or at the foot or end of, or opposite to, a memorandum referring to it, and written at the end or other part of the will.

By section 22., a will revoked can only be revived by re-execution, or by a codicil duly executed and attested and showing an intention to revive it; and where a will partly revoked, and afterwards wholly revoked, shall be revived, the revival shall not extend to so much as was revoked before the revocation of the whole, unless a contrary intention appears.

By Devisee of a Leasehold Interest.

A devisee of a leasehold interest must prove: 1. The title of the devisor to the leasehold property, unless the defendant be estopped from disputing it; 2. The probate of the will; and 3. The assent of the executor to the bequest.

By the assent, the term is vested in the devisee from the death of the testator. Saunder's case, 5 Rep. 12. b.; Doe v. Guy, 3 East, 120. A very small matter will amount to an assent, it being a rightful act. Noel v. Robinson, 1 Vern. 94.; Doe v. Mabberley, 6 C. & P. 126.

By Devisee or Heir of Copyhold.

A devisee of copyhold premises must, at common law, adduce the following proofs :

1. The seisin of the testator. The surrender by the testator to the use of his will is no proof of his seisin; per Taunton J., in Barfoot v. Sadler, Winton Sum. Ass. 1831.

2. The surrender by him to the use of his will. As between surrenderor and surrenderee, a presentment on the court rolls of an admittance, as upon a surrender out of court, is primary evidence of the

surrender without producing the original surrender and without regard to the stamp upon it. Doe v. Olley, 12 A. & E. 481.

3. The will itself. This, before the late statute, need not, it is said, have been in writing. 1 Watk. Cop. 130. A recital of it in the admittance is not evidence as between heir and devisee. B. N. P. 108. Nor is the probate admissible evidence of it. Archer v. Slater, 11 Sim. 507. Wills of customary and copyhold land must now be executed with the same formalities as freehold; 7 Wm. 4., and 1 Vict. c. 26, s. 1., antè, p. 98. ; and a will so executed is now good, though the testator may not have surrendered to the use of his will; and though, being entitled as heir, devisee or otherwise, he may not have been admitted; and though there may be no custom, or only a limited custom, to devise or surrender to the use of a will; sect. 3.

4. The devisee must prove his own admittance, though an heir may bring ejectment without it.

By 4 & 5 Vict. c. 35. (the act for the commutation of manorial rights, &c.) sect.86., a customary court may (after 31st December 1841) be held without the presence, or even the existence, of any copyholder; and by s. 88., the lord, his steward or deputy-steward, may admit at any time or place within or out of the manor, and without holding any court ; and by sect. 90. no presentment of such admittance is necessary. By sect. 89. the lord, &c., is compellable to enrol a copy of any will or codicil delivered to him, and the entry on the rolls shall be taken to be made in pursuance of a presentment by the homage.

The late statute, 3 & 4 Wm. 4., c. 106., amending the law of inheritance, extends to copyhold and customary land. Antè, p. 433.

Proof of Admittance.] Although in ejectment against a stranger the heir of the copyholder (Doe v. Hellier, 3 T. R. 169., Roe v. Hicks, 2 Wils. 13.), or the grantee of the reversion of a copyhold from the lord, (Doe v. Loveless, 2 B. & A. 453.), need not prove an admittance, yet a devisee, being a purchaser, must prove his admittance. The admittance of tenant for life being the admittance of him in remainder (Auncelme v. Auncelme, Cro. Jac. 31.), a devisee in remainder has only to prove the admittance of the tenant for life, and not his own admittance. The title of a surrenderee is not complete before admittance, which he must prove; but after admittance his title has relation to the time of surrender against all persons but the lord; and he may therefore recover in ejectment upon a demise laid between the time of the surrender and admittance, provided the admittance be before the trial. Doe v. Clapham, 1 T. R. 600.; Doe v. Hall, 16 East, 208. A person, to whom an original grant of a copyhold is made by the lord, is tenant before admittance. Doe v. Whitaker, 5 B. & Ad. 409. heir may, before admittance, devise copyholds descending to him. King v. Turner, 1 Mylne & K. 456. But not an unadmitted devisee or surrenderee (before the late act); per curiam in Doe v. Lawes, 7 A. & E. 211., 213. Where an admittance was entered at a void court, and the proceedings of that court regularly entered by the steward on the court rolls, it was held sufficient; as at the following court the tenants would have information of it. Doe v. Whitaker, 5 B. & Ad. 409. As to proof of surrender and admittance by the court rolls, or copy of the court rolls, of the manor, see antè, p. 80., 146. The identity of the parties named in the rolls must be proved. Doe v. Smith, 1 Camp. 197.

An

By Mortgagee.

If the action be brought against the mortgagor in possession after default, the mortgagee has only to prove the execution of the mortgage deed; and a demand of possession is unnecessary. Doe v. Maisey, 8 B. & C. 767.; Doe v. Giles, 5 Bing. 421. And the mere fact of the receipt of interest, as such, since the date of the demise, is no recognition of a lawful possession by the mortgagor or his tenant, so as to make a demand necessary. Doe v. Cadwallader, 2 B & Ad. 473. But if the mortgagee treats one, who occupies under a demise by the mortgagor since the mortgage, as his tenant, a notice may become necessary. Rogers v. Humphreys, 4 A. & E. 313, 314.; Doe v. Hales, 7 Bing. 322. Notice by mortgagee to the mortgagor's tenant in possession will not alone create a tenancy between them without attornment. Evans v. Elliot, 9 A. & E. 342. But if such notice is not repudiated, it may be evidence of a yearly tenancy at the former rent from the date of the notice. Semb., Brown v. Storey, 1 M. & G. 117. Anagreement that the mortgagor may continue to hold till a certain day fixed for payment operates as a re-demise till that day. Wilkinson v. Hall, 3 New Ca. 508. So where the agreement is to hold till default in payment of an annuity. Doe v. Goldwin, 2 Q. B., 143. See also Doe v. Day, ib. 147. But where it was agreed that the mortgagor should pay rent to the mortgagee during his occupation, provided such reservation should not prejudice the mortgagee's right to enter and evict upon default, it was held that the mortgagee might eject without notice to quit, though he had distrained for a year's rent. Doe v. Olley, 12 4. & E. 481.

In ejectment by mortgagee against the assignee (under the Lords' Act) of mortgagor, a letter written by the mortgagor to the plaintiff before the assignment is evidence against the defendant; and it shall be presumed to be written at the time of its date. Doe v. Milburn, 2 M. & W. 853.

If a third person is in possession by a title prior to the mortgage, the plaintiff must show a title to oust him. Thus, if he be a tenant from year to year who came in prior to the mortgage, the lessor of the plaintiff must prove a regular notice to quit. Doe v. Belcher, 3

East, 449. But the defendant, being either the mortgagor or one claiming under him, cannot set up a title in a third party prior to the mortgage. Doe v. Vickers, 4 A. & E. 782.; Doe v. Clifton, ibid. 809.

A mortgagee of turnpike tolls cannot recover in ejectment, unless the power to mortgage includes the toll houses and gates. Doe v. Gilbert, 2 T. R. 169.; Doe v. Lediard, 4 B. & Ad. 137. And trustees are not estopped from setting up their want of authority. Doe v. Gilbert, supra. A power given to a railway company to mortgage the undertaking, with all tolls," &c., will not enable the mortgagee to recover the railway in ejectment. Doe v. St. Helen's Railway Co., 2 Q. B. 364.

In order to prove the execution of a mortgage by the trustees of a turnpike road, it is enough, under the General Turnpike Act 3 G. 4. c. 126. s. 134., to shew that the trustees acted as such, and that there was an order for their appointment, without shewing the actual appointment. Doe v. Hares, 4 B. & Ad. 435.

As to the date of the demise, see antè, p. 412. As to effect of Statute of Limitations in the case of mortgages, see post, Defence, p. 452.

By Execution Creditor.

Tenant by elegit must prove: 1. The judgment; 2. The elegit issued upon it; and, 3. The inquisition and return thereupon. B. N. P. 104. An examined copy of the judgment roll, containing the award of elegit and the return of the inquisition, is sufficient, without proving a copy of the elegit and of the inquisition. Ramsbottom v. Buckhurst, 2 M. & S. 565. So the original writ of elegit is admissible, though there may be no award on the judgment roll. Pack v. Tarpley, 9 A. & E. 468. If the sheriff's return do not state that he has set out a moiety by metes and bounds, it is bad, and the objection may be taken at the trial. Fenny v. Durrant, 1 B. & A. 40. Although a third person be in possession of the land extended, it is sufficient to prove a prima facie title in the debtor; and it lies upon the tenants in possession to shew that their title is anterior to the judgment. Doe v. Cwen, 2 C. & J. 71.

Where the lessor of the plaintiff is vendee of the sheriff under a fi. fa., it is sufficient for him, in ejectment against the defendant in the first action, to produce the fi. fa., without proving the judgment. But it is otherwise as against a stranger. Doe v. Murless, 6 M. & S. 110. Where the sheriff's vendee is also the plaintiff at whose suit the writ was issued, and not a mere stranger, he must also prove the judg ment; for he is privy to it, and if there be none the writ would be a nullity as against him. Doe v. Smith, Holt, N. P. C. 589. S. C. 2 Stark. 199.

A sale by the sheriff without a written assignment passes no property, and the estate remains in the debtor, who may therefore eject the creditor in possession. Doe v. Jones, 9 M. & W. 372.

The confession in the consent rule does not preclude the defendant from setting up, by way of defence, that the land is held on a public trust, and is therefore exempt from seizure under execution. v. Roe, 1 Q. B. 700.

By Guardian.

Doe

In ejectment by a guardian in socage, the lessor of the plaintiff must prove the seisin of the ancestor of the heir; that he has left an heir, who is under the age of fourteen; and that, among the relations to whom the inheritance cannot descend, he himself is the next of blood to such heir. The late act for amending the law of descent, by making lineal ancestors and others capable of inheriting, who could not before have succeeded as heirs, will hereafter make it difficult to find such a relation. It seems necessary to prove that the heir was under the age of fourteen at the time of the demise laid in the declaration. 2 Phill. Ev. 250.; Doe v. Bell, 5 T. R. 471.

In ejectment by a guardian appointed by deed or will according to 12 Car. 2. c. 24. s. 8, 9., the title of the deceased father must be proved; the minority of the ward at the time of the demise laid in the declaration; and the due execution of the will or deed. 2 Phill. Ev. 251. Where the appointment is by will, it must now be executed agree

ably to s. 9. of 7. Wm. 4., and 1 Vict. c. 26.

Wills," p. 98.

By Executor or Administrator.

Vide antè,"Proof of

In ejectment by an executor or administrator, the lessor of the plaintiff must prove: 1. The leasehold title of his testator; 2. The testator's death; 3. The probate or grant of administration.

The leasehold title may be shewn by producing and proving the lease in the usual way; see antè, p. 87.

The death of the termor is proved by parol evidence; or by proof of the register of burial and identity of the party deceased. See antè, p. 26., 84., 146., 150. The probate or letters of administration are not of themselves evidence of the decease; antè, p. 142.

As to proof of the probate or grant of administration, see antè, p. 81.

Administration when granted is said to relate back to the intestate's death. Com. Dig. Administration (B. 10.). And this doctrine of relation is supported by Tharpe v. Stallwood, 1 Dowl. & L. 24., and Patten v. Patten, i Alc. & Nap. 493. But the contrary was laid down in Woolley v. Clark, 5 B. & A. 745. In 3 & 4 Wm. 4. c. 27. s. 6. (post, p. 446.) administration is expressly made to relate back to the death for the purposes of that act.

The term is vested in the executor from the death of the testator, and the executor may therefore recover on a demise laid between the time of the testator's death and of the probate. Com. Dig. Administration. (B. 10.)

By Parson.

In ejectment by a parson for the recovery of the parsonage-house, glebe, or tithes, where he does not claim in the character of landlord, or where the defendant is not otherwise estopped from disputing his title, he must show his title by proving presentation, institution, and induction; but he need not prove title in the patron. Heath v. Pryn, 1 Vent. 14.; B. N. P. 105. If the presentation was by parol, it may be proved by a person who was present and heard it. R. v. Eriswell, 3 T. R. 723. But a presentation by a corporation must be in writing under the common seal; Gib. Codex, 794., and must therefore be proved by proof of the seal; ante, p. 87. The institution may be proved by the letters testimonial of institution, or by the official entry in the public registry of the diocese, which ought regularly to record the time of the institution, and on whose presentation; ibid, 813.; in which case it would seem to be evidence of the presentation as well as of the institution. 2 Phill. Ev. 257. So the letters of institution of a party reciting the cession of his predecessor, followed by induction, are sufficient evidence of the cession. Doe v. Carter, R. & M. 238. The induction may be proved either by some person who was present at the ceremony, or by the indorsement on the mandate directed by the ordinary to the archdeacon, or by the return to the mandate, if a return has been made. 2 Phill. Ev. 257.; Chapman v. Beard, 3 Anst. 942. The lessor of the plaintiff will not be required to prove that he has taken the requisite oaths, or declared his assent to the book of