An estate was devised to trustees in trust for I. S. an infant, with directions to convey the same to him on his attaining twenty-one. In an action of ejectment, brought four years after I. S. attained twenty-one, it was holden, that a jury might be directed to presume a conveyance to I. S. in pursuance of the trust. In these cases, when a conveyance is presumed, there is an end of the legal estate created by the term. But where the facts of the case preclude such presumption; or, if it appear in a special verdict, or special case, that the legal estate is outstanding in another person, the party who is not clothed with the legal estate cannot prevail in a court of law (4).

The plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of that of the defendant. Possession gives the defendant a right against every person who cannot shew a good title. But a lessee will not be permitted to defend an ejectment against his own landlord, on a supposed defect in the title of the landlord'; nor where tenant in possession has paid rent to the lessor of plaintiff, can a third person come in and defend as landlord without the tenant, and dispute the lessor of plaintiff's title *.

In a case, however, where the lessor of the plaintiff holding an estate under a lease for 21 years', underlet the same to the defendant for a year, and the defendant held over after the expiration of the 21 years, after which the lessor of the plaintiff gave the defendant a regular notice to quit, which not being complied with, an ejectment was brought; it was holden, that it was competent to the defendant to shew, that the lessor's title had expired, and that he had no right to turn him out of possession.

(4) "As to the doctrine, that the legal estate cannot be set up at law by a trustee against his cestui que trust, that has been long repudiated." Per Ellenborough, C. J. in Doe d. Shewen v. Wroot, E. 44 G. 3. B. R. 5 East, 138. See further on this point Lessee of Massey v. Touchstone, reported in a note to Shannon v. Bradstreet, Irish Ch. Ca. Temp. Ld. Redesdale, vol. 1. p. 67.

II. By whom an Ejectment may be brought.

AN ejectment may be brought by the following persons : 1. Assignee of a bankrupt, 1 Wils. 276.

2. Conusee of a statute merchant or staple.

3. Copyholder (5), Moor, 569. 1 Leon. 4. Cro. Eliz. 535. 4 Rep. 26. a. Cro. Jac. 31. Yelv. 144. 1 T. R. 600.

(5) If a copyholder, without licence, makes a lease for one year, or, with licence, makes a lease for many years, and the lessee be ejected, he shall not sue in the lord's court by plant, but shall have an ejectio firma at the common law; because he has not a customary estate by copy, but a warrantable estate by the rules of the common law, Co. Cop. s. 51.

If the copyholders of a manor belonging to a bishopric, during the vacancy of the see, commit a forfeiture by cutting timber, the succeeding bishop may bring ejectment. Read v. Allen, Oxford circuit, 1730, per Comyns, Bull. N. P. 107.

An heir, to whom a copyhold descends, may surrender before admittance, because he is in by course of law, and the custom, which makes him heir to the estate, casts the possession upon him from his ancestor; consequently such heir may maintain ejectment before admittance*. But a stranger, to whom a copyhold is surrendered, has nothing before admittance, because he is a purchaser. Until the admittance of surrenderee the copyhold remains in the surrenderor, and if he die, his heir may bring ejectment. Wilson v. Weddell, Yelv. 144. But after admittance surrenderee may maintain ejectment against surrenderor, and lay his demise on a day between the times of surrender and admittance. Holdfast v. Clapham, i T. R. 600. Admittance of tenant for life is admittance of him in remainder, without any other admittance. Auncelme v. Auncelme, Cro, Jac. 31. Warsopp v. Abell, 5 Mod. 307.

The devisee of a copyhold or customary estate, which had been surrendered to the use of the will, having died before admittance, it was holden, that her 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 title remained in the heir of the surrenderor. Doe d. Vernon v. Vernon, 7 East, 8.

Copyholds are not within the statute against fraudulent conveyances, and, therefore, if the plaintiff claim under a voluntary conveyance, though the defendant claim under a subsequent purchase

• Adm. Per Cur. in Roe d. Jeffereys v. Hicks, 2 Wils. 15. and per Kenyon, C. J. in Doe v. Hellier, 3 T. R. 169. S. P.

4. Corporation aggregate, Carth. 390. 12 Mod. 113. or sole. 5. Devisee, 1 Inst. 240. b.

6. Grantee of rent-charge, with a power to retain until satisfaction, 1 Saund. 112.

7. Guardian in socage (6).

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

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

10. Mortgagee, Doug. 21. Salk. 245. Str. 413 (7).

for a valuable consideration, yet the plaintiff shall recover. Per Blencowe, J. Launceston ass. 1699. Bull. N. P. 108.

(6) Guardian in socage may make a lease for years, and his lessee may have an ejectione firma, per three justices, Cro. Jac. 99. Adm. 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 Rol. 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 beir attain the age of 21; 2d. 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 Hargr. Co. Litt. 88. b.

(7) But by stat. 7 G. 2. c. 20. s. 1. "Where any action of eject"ment shall be brought by any mortgagees, their heirs, execu"tors, &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 re"fusal, 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 de"fendant 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 re

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

12. Tenant by elegit.

13. 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.

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.

lating 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.

(8) Ejectment for 10 acres of pasture and 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 synonimous with the word pasture preceding it;

Coalmine, Commyn v. Kyncto, Cro. Jac. 150.

de mineris carbonum in county palatine of Dura

ham, 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

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 King's in A., Sullivan v. Seagrave, Str. 695.

Land, and coalpit in the same land. Objection, that it is bis petitum. Answer, ejectio firme 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. Tomlins' 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. S. c. 7. §. 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.

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.