relation cannot be admitted, when he himself can be called, Rendrell v. Rendrell, Str. 294, 3 Camp. 457, nor can the opinions of deceased neighbours, or acquaintances of the family, be admitted: 13 Ves. 147, 514; 3 T. R., 707, 723; 1 M. & S. 688. Hearsay evidence is also inadmissible to prove the place of any particular birth: 8 East, 542. The declarations of the deceased relative should also, to render them admissible evidence, be made under circumstances when the relation may be supposed without any interest, and without a bias; therefore, declarations made after a suit commenced, or a controversy preparatory to one, are not admissible: 4 Camp. 401.

Stronger and further proofs should be adduced, according to the expected defence: see post," Evidence for Defence."

When the lessor claims as heir, and proves his pedigree, and stops, and the deft. sets up a new case, which is answered by fresh evidence on the part of the lessor, the deft. is entitled to the general reply, 4 T. R. 497; and if, after the pleadings are opened by the junior counsel for the lessor, the deft.'s counsel expresses himself ready to admit the lessor to be heir, it will entitle him to open the case, and make the first address to the jury: Adams, 255.

By Heir of Copyhold, &c.] If the lessor of the plt. be heir by the custom of the place, in addition to the foregoing, he must show the custom, 4 Leon. 242, 1 Roll. 624, and that he comes strictly within it: ib. If the lessor claims as heir to a copy hold, the rolls of the manor must be produced, which show a surrender to him, or to those under whom he claims, 16 East, 208, 3 T. R. 162, post, 461. It is not necessary he should prove his own admittance, unless the action be against the lord: 1 Leon. 100; 1 East, 600; 3 T. R. 162. If the ejectment be against the lord, he must either show that he is admitted, or that he has been refused admittance. It is not necessary for him, in such case, to have tendered himself to have been admitted at the lord's court, if the steward, upon application out of court, has refused to admit him: 2 M. & S. 167; Adams, 254. The custom may be proved by the different admissions of the customary heirs upon the court-rolls of the manor, produced by the steward upon oath, or by the medium of verified examined copies; but, if, the ancient rolls be lost, or there be no instance of any admission in them similar to the custom set up by the lessor, an entry upon the rolls, stating the mode of descent of lands in the manor, will be admissible evidence as to the existence of the custom: Adams, 254, 5; 5 T. R. 26; 1 T. R. 466; see 3 Wils. 13.

BY DEVISEES.

By Devisee of Freehold.] To enable the devisee of a freehold es tate to support this action, the will under which he takes must be prov ed, with all its requisites as to attestation, &c., pursuant to 29 Car. 2, c' 3, s. 5, B. N. P. 246, viz. the signature by testator, the publication by him before three or more credible witnesses, the witnesses' subscrip

tion in his presence, and that they all signed: post, “Will.” If, [*459] indeed, the will be one of thirty years' standing, after proving the proper custody from whence it came, it may be read in evi

dence, without further proof: 9 Ves. J. 5.; Doe v. Brabant, 4 T. R. 707; see post, “Will,” “Written Evidence." The conditions precedent to the lessor's taking as devisee, if any, must be proved to have been fulfilled. The determination, also, of any estates limited by the will prior to the lessor's devisee, if any should be proved. He must also prove the seisin of his devisee, as to which, see ante, 457. The death of the testator should also be proved: ante, "Death." A devisee of a freehold may immediately, without any possession, maintain an ejectment for the lands devised: Co. Lit. 240, b. Further and stronger proofs should be adduced, according to the expected defence: see " Evidence for Defence," post.

By Devisee of Copyhold.] When the lessor of the plt. claims as devisee of a copyholder, he must prove that his devisor was admitted to the estate, and his surrenderor to the use of the will, and he must also show that he himself has been admitted, Doe d. Vernon v. Vernon, 7 East, 8, Roe d. Jeffery v. Hicks, 2 Wils. 13, Roe v. Wroot, 5 East, 137; for which purpose the entries on the manor rolls may be produced as evidence, Folkard v. Hemet, 2 W. Bla. 1061, Rex v. Shelly, 3 T. R. 141, ante, "Copyhold;" though, if he be devisee in remainder, it will be sufficient for him to prove the admittance of the tenant for life: Auncelme v. Auncelme, Cro. J. 31. The identity of the parties admitted must also be established: Doe d. Hanson v. Smith, 1 Camp. 197. The party must also produce his devisor's will, which, not falling within the Statute of Frauds, will be sufficient, though it be not signed or attested, Walsh v. Edmunds, Cro. E. 100, Doe d. Cook v. Danvers, 7 East, 299, Wagstaff v. Wagstaff, 2 P. Wms. 249; the will, however, must appear to be in writing, 32 H. 8, c. 1, though papers, bearing but a slight resemblance to wills, have been held sufficient to pass copyhold premises: Carey v. Askew, 2 Bro. Cha. Rep. 58; Doe v. Smith, Pea. Evi. 456; 1 Ander. 34. Where the devisee of a customary estate, which had been surrendered to the use of the will, died before admittance, it was held that the 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 estate remained in the heir of the last surrenderer: Doe v. Vernon, 7 East, 8.

By Devisee of Leasehold.] In ejectment by a legatee of a leasehold interest, the plt. must establish the title of the testator, showing that he had a chattel interest in the premises. Proving that he died in possession would not suffice, as that would, prima facie, be evidence of a seisin in fee: Adams, 266. The leasehold interest is usually proved by production and proof of the execution of the lease; or if testator was an assignee, the execution of the lease and the assignment to him. In a case where the lessor put in an answer of the defts. to a bill in equity, in which the deft. stated "he believed the lessor was possessed of the leasehold premises in the bill mentioned," it was held, as against the deft., sufficient evidence that the interest of the testator was only a chattel one: Doe v. Steel, 3 Camp. 115.

The plt. must also adduce evidence of the probate of the will, see post, "Executor," "Probate," and prove the executor's assent to the bequest: 1 Inst. 111, a. Such assent is absolutely necessary, Toller,

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344; and it makes no difference though the legatee be also an executor. The assent may be express or implied, slight evidence of it is sufficient: 1 Lev. 25; Com. D. Adam. C. 67; 1 Roll. Ab. 920; 5 Rol. R. 158; Toller, 344, 5., As to disclaimer, see 3 B. & A. 31.

When the ejectment is by a trustee, he must show he has the legal estate in the premises. In all cases in which the trusts are not executed by the Statute of Uses, the legal estate vests in the trustees; and see the law and cases as to when trustees have been held or not to take the legal estate, Adams, 74 to 79; 2 Bl. Com. by Chitty, 335, n. 60. The general rule is, that where something is to be done by the trustees, which makes it necessary for them to have the legal estate, such as payment of the rents and profits to another's separate use, or of the debts of the testator, or to pay rates and taxes, and keep the premises in repair, or the like, the legal estate is vested in them, and the grantee or devisee, has only a trust estate: see 3 B. & P. 178; 2 T. R. 444; 6 T. R. 213; 8 East, 248; 12 East, 445; 4 Taunt. 772. As to outstanding terms, it should, in general, be proved they have been surrendered. Where it is the interest of the owner of the inheritance, that a satisfied term should be considered as surrendered, and it appears that no beneficial purpose can be answered by the continuance of the term, a surrender may be presumed: Doe v. Wright, 2 B. & A. 720. Where the legal estate has been vested in a trustee, and there is no direct evidence of a conveyance or surrender to the cestui que trust, a jury may, under circumstances, presume such conveyance or surrender: Lade v. Halford, B. N. P. 110; Goodtitle v. Jones, 7 T. R. 45. As where an estate is directed to be conveyed, a jury may, within four years from the time when the estate was directed to be conveyed, presume that it has been so conveyed by the trustee: Doe v. Slade, 4 T. R. 682. In the case of a satisfied term, where acts were done or omitted by the owner of the inheritance, and persons dealing with him as to the land, which ought not reasonably to be done or omitted, if the term existed in the hands of the trustee, and there does not appear to be any thing to prevent a surrender from having been made, those acts are evidence from which a jury may presume such surrender: Doe v. Hilder, 5 B. & A. 791. On the other hand, where a term of years becomes attendant upon the inheritance, either by operation of law, or by special declaration upon the extinction of the objects for which it was created, the enjoyment of the land by the owner of the reversion, thus become the cestui que trust of the term, may be accounted for by the union of the two characters of cestui que trust and inheritor; and there appears, therefore, to exist no circumstance from which a jury can imply a surrender: ib. And the mere fact of a term being satisfied, furnishes no ground from which the jury can presume it surrendered: Evans v. Bicknell, 6 Ves. 185. There ought to be some dealing with the term to authorize such a presumption: ib.; Cholmondeley v. Clinton, cited Sugd. V. & P. 426. Where a term has been expressly assigned to attend the inheritance, and there has been no act or omission inconsistent with the existence of the term, there is

still less ground to presume a surrender from the mere lapse of time, and silence of the party who possesses the inheritance: see Sugd. V. & P. 389, 391; Roscoe, 259. The recognition of the term as subsisting at a late period, Doe v. Scott, 11 East, 478, the fact that it would have been contrary to the duty of the trustees to surrender the estate, Keene v. Deardon, 8 East, 267, or that the original enjoyment of the party who sets up the presumed conveyance was consistent with the fact of there having been no conveyance, Doe v. Read, 5 B. & A. 237, are all circumstances from which a jury may infer that no conveyance has taken place: Roscoe, 260.

BY ADMINISTRATOR OR EXEcutor.

In ejectment by an administrator, he must, in addition to the other general proofs, produce the letters of administration under the seal of the court, or the entry in the ecclesiastical record, or [*461] an examined copy of it, will be sufficient, Garrett v. Lister,

1 Leon. 25, Peaslie's case, ib. 101, Elden v. Kiddell, 8 East, 187, Ray v. Clerk, 13 East, 238; or an exemplification of the letters of administration: 8 East, 187, Kempton v. Cross, C. T. Hard. 108. Where the lessor of the plt. is an executor, he must produce the probate of the will: R. v. Stone, 6 T. R. 295: R. v. Horseley, 8 East, 410. We have seen an executor may lay the demise before the probate, but after the death of his testator: ante, 449. It is immaterial whether the ouster be after or before the death of the testator, or intestate: 4 Co. 92, 95, a. In addition to these proofs, however, the title of the testator or intestate must be proved: ante, 454, 457.

The personal representative can recover only those premises which the testator or intestate held for a term of years: 4 Co. 92, 95, a.; 3 T. R. 13. They may recover under the 29 Car. 2, c. 3, s. 12, appropriating estates from autre vie, where there is no special occupation; but this act does not extend to copyholds: 7 East, 186.

BY ASSIGNEES OF BANKRUPT..

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In Ejectment by Assignees of Bankrupt.] They must prove the title of the bankrupt to the premises for which they maintain the ejectment, 2 Phil. Ev. 306; and the assignment and bankruptcy must also be proved in the usual way: ante, “ Bankruptcy." By the 6 G. 4, c. 16, the general assignment invests the assignees with all the power necessary to maintain the ejectment of all leaseholds (except for lives) belonging to the bankrupt, whether in his possession or not, at the time of the bankruptcy. With respect to freehold estates for lives, estates tail (except copyhold), they do not pass by such assignment, but must, by the 6 G. 4, c. 16, s. 64, be conveyed by the commissioners by deed indented and enrolled; and, until enrolment and bargain and sale are completed, the assignees cannot maintain an ejectment for such property: ante. This provision includes, not only estates in possession, but also estates in remainder or reversion: 3 P. Wms. 132; Amb. 394; 3 Mer. App. 667. It also includes incorporeal hereditaments: Archb. B. L. 125. The deed only affects premises to which the bankrupt is entitled at the time of its execution; if he acquire any future real estates, there

must be a new bargain and sale to vest the legal estate in the assignees: 1 Atk. 252; Esp. N. P. 431. As to copyholds, see the 6 G. 4, c. 16, s. 68; the conveyance to the assignees is by bargain and sale.

BY COPYHOLDER OR HIS ASSIGNEE.

In ejectment by the surrenderee of copyhold premises, he must prove the surrender to his use, and his subsequent admittance; for the legal title does not vest in the surrenderee until after admittance: 2 Wils. 13, 15; 1 T. R. 393. When the admittance has been made, the title relates back to the time of the surrenderer, against all persons but the lord; and, therefore a surrenderee may recover in ejectment against his surrenderor, or a stranger, upon a demise laid between the times of admittance and surrender, provided the admittance be made before the trial: 1 East, 600; 16 East, 208; Adams, 61. When the lessee of a copyholder is plt., he must, after proving the copyholder's title, show a special custom in the manor, allowing the copyholder to make leases for years, or that the lord has licensed the lease to be made before it was made: Co. Copy, s. 51. If a copyholder, without license, make a lease for one year, or, with license, make a lease for many years, and the lessee be ejected, he must not sue in the lord's court by plaint: ib.; Cro. Eliz. 535. As to proofs in actions by heir or devisee of copyholder, ante, 458, 9.

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*BY JOINT-TENANTS, TENANTS IN COMMON, &c.

Where the plt. declares on a joint demise under several lessors, evidence must be given of a joint interest in the premises; but, if the demise be several, evidence of either a joint or several interest will be sufficient: Doe d. Marsack v. Read, 12 East, 57. In ejectment brought upon the joint demise of several trustees of a charity, it is not enough for the deft., who had paid one entire rent to the clerk of the trustees, to show that the trustees were appointed at different times, as evidence of their being tenants in common; for, as against their tenant, his payment of the entire rent to the common agent of all, is, at all events, sufficient to support the joint demise, without making it necessary for them to show their title more precisely: Doe d. Clarke v. Grant, 12 East, 221. As to the evidence of the ouster in an action by one joint-tenant, or tenant in common, against another, see ante, 456.

BY PARSON.

It is incumbent upon a parson, who brings an ejectment for the parsonage-house, glebe, or tithes, to prove that the property sought to be recovered is church property; as, that the premises were occupied by a former incumbent, or the like: 2 Phil. Ev. 258. The tithes and rectory are not the same; therefore an ejectment for a parsonage and glebe will not be supported by showing that the deft. entered and took the tithe belonging thereto: Latch, 61. The plt. must prove his lessor's admission, institution, and induction, B. N. P. 105, a., Heath v. Pryn, 1 Vent. 14, Snow v. Phillips, 1 Sid. 220; and he will not be required to show his patron's title, ib.; nor need he prove that he has subscribed