Of the Action of Ejectment.

muft now be be purfued as foon as the condition is broken; but execution will be ftayed if any landlord, after the default of his tenant, applies to be made a defendant, and enters into the ufual rule to confefs leafe, entry and ouster.

Of recovering the mefne profits of the tenant, after the plaintiff has recovered poffeffion by the action of ejectment, Vide poft.

TH

For what an Ejectment lies.

HE action of ejectment lies in B. R. by bill, and by original; but in C. B. by original only.

As declarations in ejectment are generally made out by the attornies themfelves, who may buy common forms of declarations in ejectment, with blanks, of the law ftationers: it will be neceffary to fhew for what an ejectment may be maintained.

It lies of a manor, meffuage, so many acres of land, of meadow, of pasture, of wood, &c. II Co. 55. Of a house. Cro. Jac. 654. Noy 37. 3 Lev. 97. Palm. 337. Hard. 76.

Of a chamber in the second story of fuch a houfe. 3 Leon. 210. Noy 109. Hard. 57. Of part of an houfe. Stra. 695.

Of a certain place called the veftry in D. 3 Lev. 96. Of a rectory; of a chappel. Latch. 62. and may be demanded by the name of a meffuage. Salk. 256. Styl. 101. Of a cottage. I Lev. 58. Cro. El. 818.

Of a ftable.

Cro. El. 118. Palm. 337. Hard.

1 Lev. 58.
Of a college, and of an orchard. Noy 37.
854. 1 Rol. Rep. 55. Cro. Jac. 655.
55, 57. Cro. Car. 555.

Of a garden. 1 Lev. 58. Godb. 6.
Of a boilery of falt. I Lev. 114.

Of a coal-mine. Cro. fac. 150. Noy 121. and in Durham, of mines of coals, though not faid how many. Affirmed in error; the precedents for coal-mines being fo in that county. Carth. 227. 4 Mod. 143. Comb. 201. I Show. 364. Salk. 255.

Of land, and a coal-mine in the fame land. Fac. 21.

For a pool, or standing water.

Cra.

Yelv. 143. 1 Inft. 5.

Reg. 227. And for a ftream, or running water. I Inft. 5. fed court. Yelv. 143. for it ought to be of fo many acres of land covered with water.

For a beaft-gate. Stra. 1084. Andr. 106.

For fo many acres of herbage.

Hard. 303, 401.

For a first mowing. Cro. Car. 362.

For a hop-yard. Palm. 337.

Of a clofe called D. containing three acres of land. Cro. Jas. 435. Palm. 102. 4 Mod. 98.

So for a parcel of a highway, and upon, it fhall be demanded as land. For twenty acres of furze and heath. Mod. 90.

though it be built Bull. Ni. Pri. 99.

Cro. Jac. 179. I

For

For what an Ejectment lies.

For fifty acres of furze and heath, and fifty acres of moor and marsh. Burr. 4 pt. 2672.

For an alder car in Norfolk. Str. 1063.

For ten acres of wood, and ten acres of underwood. 2 Rol. Rep. 482.

95.

For common of pafture. Stra. 71.

For the pafture of one hundred fheep.

Hard. 58. Dalis

For four mills, without fpecifying wood or water-mills, -Cro. El. 339.

for ten acres of

For a piece of land called B. or a clofe of land called B. Cro. Jac. 435. 3 Lev. 97.

For a meluage or burgage; for they are fynonimous in a borough. R. Hard. 173.

For a meffuage or tenement called the Black Swan. 3 Mod. 238. I Sid. 295. because certain enough for the fheriff to deliver poffeffion.

*

So an ejectment lies for tythes; for although tythes are efteemed part of the incorporeal inheritance, and by the common law were only of ecclefiaftical conufance, yet, being in the hands of lay-proprietors, are now confidered as a temporal estate; for, by 32 H. 8. c. 7. it is provided, that every lay-perfon having any eftate of inheritance, freehold, right, term, or intereft, in tythes; and being thereof diffeifed, oufted, wronged, or otherwife kept from the fame, shall have his remedy, in the courts of law, for them, in like manner as for lands; and hence it is, that an ejectment lies for tythes. Vide Cro. Car. 301. Jones 321. Ld. Raym. 789.

An ejectment lies for a rectory, because a rectory consists of a church, glebe lands and tythes. Latch. 62.

It was formerly held, that ejectment did not lie for a chapel, because it was res facra, which was not demiseable; but now, fince they are become lay-inheritances, they are recoverable in ejectment, as other lay-eftates; but it must be demanded by the name of a meffuage, or it is not formal. II Co. 25. Style 101. Doct. Plac. 191. Salk. 256. pl. 7.

* This remedy by the ftatute is given only to lay impropriators; therefore the act of parliament leaves fpiritual perfons to purfue their old remedy in the fpiritual court. Co. Lit. 159. Dyer 116. pl. 71.

L 3

But

For what an Ejectment lies.

But fee 2 Stra. 914. 2 Barnard, K. B. 27. which feems

contra.

Ejectment lies for a prebendal fall after collation to it. I Wilf. 14.

But an ejectment does not lie for a tenement. 2 Stra. 834 Barnard, K. B. 155. being too indefinite a term.

Nor for pannage, becaufe this is no more than the fruit which falls from trees, which the swine have a right to feed on, and is not a part of the foil, as the herbage is. Lev. 212. Sid. 416. S. C. adjudged.

Nor for a rent or common appendant. Cro. Car. 292. Cro. Fac. 146. 1 Inft. 9. a. fed vide Stra. 71.

Nor of a fishery in fuch a river. Cro. Car. 492. Cro. Fac. 146.

Nor of a croft. Style 30. But fee 1 Lev. 58.
Nor of a kitchen. Noy 409. Nor of a clofe without fpe-
Godb. 53. 11 R. 55. Bridg. 56.

cifying it.

'Rep. 55.

I- Roll. Nor of arable or pafture land, without fhewing how much of one, or how much of the other. Bridg. 56. 133. Palm. 102. 3 Lev. 97. Salk. 254.

Nor for a rod of land. Cro. El. 339.

Hard.

Nor of the fourth part of a meadow, without fhewing how many acres the meadow contains.

I Lev. 213.

Style

An ejectment for a meffuage or tenement, without other defcription, bad for incertainty. Cro. El. 186. 3 Leon. 228. Pop. 197, 203. Noy 86. Cro. Jac. 125. 364. 1 Sid. 295. Cro. El. 116. March 96. 2 Rol. Abr. 80.

Palm. ICO.

So an ejectment for 100 acres of wafte, or for an hundred acres of mountain, is bad for incertainty. Hard. 57. Salk. 255. I Show. 338.

In ejectment for an entirety, a moiety may be recovered. Ejectment for five clofes of land, arable and pasture, called long furlongs, containing ten acres, held ill; for the plaintiff ought to have fhewn how many acres of arable land, and how many acres of pasture, diftin&tly, fo as the heriff might certainly know what to deliver upon the habere facias poffeffionem. Carth. 204. Cro. Car. 573, 471. I Show. 338. 4 Mod. 42, 97.

Hard. 59.
Comb. 198.

Salk. 254.

Ejectment for a houfe, ten acres of land, and twenty acres of meadow by the name of a houfe, and ten acres of

meadow,

For what an Ejectment lies.

meadow. Verdict for plaintiff, but judgment arrefted for repugnancy and incertainty. Yelv. 166. 4 Noy 143.

Ejectment for a manor should defcribe the quantity and fpecies of land contained therein. Hetl. 146. Latch. 61. Lit. Rep. 301.

So an ejectment for all and all manner of tythes in D. without faying or giving any other defcription of the nature and quality of the tythes, held naught. 11 Rep. 25. Moor 837. pl. 1130. 1 Roll. Rep. 68. 1 Roll. Rep. 68. Palm. 101. Andr. 107. Ejectment does not lie where no certainty appears, whereof the fheriff can deliver poffeffion. Mar. 96.

But it feems fufficient if fo much certainty appears, upon which the fheriff can deliver poffeflion, as ejectment for a parcel of land called B. or a clofe called B. Cro. Jac. 435. 3 Lev. 97. or a tenement called the Black Swan, &c.

An ejectment does not lie for a rent, or other things that lie merely in grant, because thefe, being incorporeal things, are in their nature invifible, quæ neque tangi nec videri poffunt; and therefore not in their nature capable of being de livered in execution. Co. Lit. 9. a.