it is well settled, that the term remains in the bankrupt till they make their election. Per Tindal, C. J., 6 Bingh. 331; Tuck v. Fyson; Briggs v. Sowry, 8 M. & W. 729. See ante, p. 666.

Tenant by elegit. Martin v. Smith, 27 L. J., Exch. 317.

Tenant in common may maintain ejectment against his companion upon an actual ouster. Litt. sect. 322; Doe v. Horn, 3 M. & W. 333. Before the C. L. P. Act, 1852, tenants in common could not have sued upon a joint demise; Doe v. Errington, 1 A. & E. 750; except, perhaps, where a joint power of re-entry was reserved on a breach of covenant in a lease; Doe v. Hamilton, 13 Q. B. 977 (in which case the Court of Q. B. were equally divided), but it was held that payment of rent to the agent of A., B. and C. was an admission that the tenant held under A., B. and C., and would support a joint demise, unless it were expressly proved that they were entitled in a different manner. Doe v. Grant, 12 East, 221. These difficulties are now obviated by sect. 180 of that act. Elliss v. Elliss, 27 L. J., Q. B. 316. See ante, p. 699.

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.

acres of alder

An ejectment will lie:- For the recovery of carr in Norfolk, because alder carr is a term well known in that county, and signifies the same as alnetum, Barnes v. Peterson, 2 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 (i): church, by the name of a messuage, Salk. 256: coalmine or saltpit, Comyn v. Kyneto, Cro. Jac. 150: de mineris carbonum in county palatine of Durham, Carth. 277: common of pasture; for after verdict it shall be intended such common of pasture as an ejectment will lie for, viz. common appendant or appurtenant, Newman v. Holdmyfast, 1 Str. 54: cottage, Hill v. Giles, Cro. Eliz. 818:

acres

of furze and heath, and acres of moor and marsh, Connor v. West, 5 Burr. 2673: house or garden, Royston v. Eccleston, Cro. Jac. 654: part of a house, known by the name of the Three Kings in A., Sullivan v. Seagrave, 2 Str. 695: land, and coalpit in

(i) 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 synony

mous 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 eject. ment. Metcalf v. Roe, Ca. Temp. Hardw. 167.

the same land (k), Harebottle v. Placock, Cro. Jac. 21: messuage or tenement, called the Black Swan, 1 Sidf. 295: acres of mountain in Ireland, Lord Kildare v. Fisher, 1 Str. 71: orchard, Wright v. Wheatley, Cro. Eliz. 854: rectory of B., and a certain place there called the Vestry, 3 Lev. 96; Hutchinson v. Puller, 2 Lord Raym. 1471: stable, 1 Lev. 58: tithes, Swadling v. Piers,

Cro. Jac. 613.

An ejectment will not lie for :-A canonry; for it is an ecclesiastical office only, Doe v. Musgrave, 1 M. & Gr. 625. A close, 11 Rep. 55; Godb. 53. A 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, 441. Messuage, garden, and tenement, Goodtitle v. Walton, 2 Str. 834. Messuage or tenement, Goodright v. Flood, 3 Wils. 23. 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; Doe v. Dyeball, 8 B. & C. 79; and 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 v. Otway, 8 East, 357. Messuage, situate in Coventry, in the parishes of A. and B., or one of them: held bad for uncertainty, after verdict, and that the words " or one of them" could not be rejected, Goodright v. Fawson, 7 Mod. 457. 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; libera piscaria, Cro. Jac. 146; Cro. Car. 492; 8 Mod. 277; 1 Brownl. 142; but it will de terrâ aquâ coopertâ, Cro. Car. 492; R. v. Alresford, 1 T. R. 358; nor will it lie pro quodam rivulo sive aquæ cursu, called D., Yelv. 143; nor for pannage, 1 Lev. 214; nor for a tin-bound, Doe v. Alderson, 1 M. & W. 210.

Under the procedure as altered by the C L. P. Act, 1852, there are no pleadings in ejectment, but on the appearance of the defendant an issue is at once made up, sect. 178. The property must be described in the writ" with reasonable certainty," sect. 168; the want of such description, however, is not to nullify the writ, but is only ground for an application to a judge "for better particulars of the land claimed or defended," sect. 175, which are to be annexed to the record, sect. 180.

The owner of a fee granted by deed to A. and others liberty to

(k) 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 v. Alker, 1 Burr.

133.

dig for tin and other metals throughout certain lands, and to raise and dispose of the same; and to make the adits, and erect the sheds, engines, &c., necessary for the exercise of that liberty, together with the use of all waters and watercourses, excepting to the grantor liberty for driving any new adit within the lands granted, and to convey any watercourse over the premises granted, habendum for twenty-one years; covenant by the grantee to pay oneeighth share of all ore to the grantor, and all rates, taxes, &c., and to work the mines during the term; on failure of the performance of any of the covenants, a right of re-entry was reserved to the grantor: it was held, that this deed did not amount to a lease, but was a mere licence to dig and search for minerals; and that the grantee could not maintain an ejectment for mines lying within the limits of the set, but not connected with his own workings (1). Although an ejectment will not lie for a liberty and privilege alone, which is a mere incorporeal hereditament, yet when an ejectment is brought for land, and liberties and privileges are appurtenant to the land, the latter may be recovered with the land, because you may recover in the ejectment all incorporeal things included in the demise, although an ejectment will not lie for the incorporeal things alone (m).

The right to a given substratum of coal lying under a certain close, is a right to land, and cannot be claimed by prescription; aliter, the right of getting coal under another's land (n).

IV. Of Entry.

An actual entry on the land was formerly necessary in one case, viz. to avoid a fine (o); and no ejectment could be maintained till entry. Fines were abolished by 3 & 4 Will. IV. c. 74; and no entry is now necessary in any case, not even to maintain an ejectment on a clause of re-entry for non-payment of rent (p). On entry, if made, the person entering becomes legally seised according to the nature of his title (q); or, if he enter for condition broken he is in of his former estate, and the lease becomes void (r). An entry upon an estate generally, is an entry for the whole; if it be for less, it should be so defined at the time (s). Where a party

(1) Doe v. Wood, 2 B. & Ald. 724. But such a licence is an incorporeal hereditament, assignable; Muskett v. Hill, 5 B. N. C. 694; inheritable, per Martin, B., Martyn v. Williams, 1 H. & N. 827; and, if the licensee occupies, use and occupation may be maintained. Jones v. Reynolds, 4 A. & E. 808. See Daniel v. Gracie, 6 Q. B. 145.

(m) Per Holroyd, J., Crocker v. Fother

gill, 2 B. & Ald. 661.

(n) Wilkinson v. Prind, 11 M. & W. 33. (0) Berrington v. Parkhurst, 2 Str. 1086.

(p) Goodright v. Cator, Dougl. 477. (q) See Barnett v. Earl of Guildford, 11 Exch. 19.

(r) Simonds v. Lawnd, Cro. Eliz. 239. (s) Per Lord Kenyon, C. J., 3 T. R. 170.

had a right of entry upon condition broken, and a stranger entered, and afterwards the plaintiff assented to such entry, it was held sufficient (t). Where lands are in the possession of a receiver, under the Court of Chancery, an ejectment cannot be brought for such lands, without leave of the court (u).

:

V. Notice to Quit.

The old tenancy at will being attended with many inconveniences, the inclination of the courts is to make every tenancy a holding from year to year, if they can find any foundation for it (x), as if the lessor accepts yearly rent, or rent measured by any aliquot part of a year and it has been considered as more advantageous to the parties, that such demises should be construed to be tenancies from year to year, so long as it shall please both parties; for in that case one party cannot determine the tenancy without giving a reasonable notice to quit to the other; with respect to which it may be laid down as a general rule, that half a year's notice (y), expiring with the year of the tenancy, is a reasonable notice in all cases, except where a different period is established, either by express agreement, or the custom of particular places (2). By legal computation half a year contains 182 days; for the odd hours are rejected. 1 Inst. 135, b. But a notice served on the 28th of September to quit on the 25th of March, although the period contain only 179 days, has been held good. Doe v. Green, 4 Esp. 199. So a notice on the 29th of September to quit at Lady Day following was held good. Doe v. Wrightman, 4 Esp. 6 (a). But in Right v. Darby, 1 T. R. 159, it was held, that a notice on the 26th of March to quit on the 29th of September was bad. Primâ facie the word "month," except in the case of a mercantile instrument, means a lunar month; R. v. Chawton, 1 Q. B. 247; and so it is at common law if the word be used in a statute; Lacon v. Hooper, 6 T. R. 224; but as to the latter, this is altered by 13 Vict. c. 21, s. 4.

A party who is let into possession, and pays rent under an agreement for a future lease for years, which is to contain a covenant

(t) Fitchet v. Adams, 2 Str. 1128; per Patteson, J., Doe v. Pett, 11 A. & E. 850. (u) Angel v. Smith, 9 Ves. 335. See Evelyn v. Lewis, 3 Hare, 472.

(x) See Richardson v. Langridge, 4 Taunt. 128; where the agreement was held to be a tenancy at will, the premises being let so long as both parties liked, and a compensation reserved accruing de die in diem, and not referrible to a year or any aliquot part of a year.

(y) 13 Hen. VIII. 15, b.

(z) Roe v. Wilkinson, Harg. & But. Co. VOL. II.

Litt.270, b. n. 1; Roe v. Charnock, Peake's N. P. C. 4. By the custom of London, a tenant at will, under 40s. rent, shall not be turned out without a quarter's warning, nor a tenant at will over 40s. without half a year's warning. Dethik v. Saunders, 2 Sid. 20.

(a) See R. v. Swyer, 10 B. & C. 486; where it was held that the words "Three Years" in the prohibitory clause of a charter, imported years of office, and not calendar years.

C

against taking successive crops of corn, and a condition for re-entry on breach of covenant, thereby becomes a yearly tenant subject to such terms and condition (b). If the tenant die, his personal representative, having the same interest in the land which the tenant had, will be entitled to the same notice; that is, half a year's notice ending with the year (c); and if a notice to quit be served on the widow, who remains in possession, the landlord is entitled to recover, unless it be shown that some other person than the widow was executor or administrator (d). So if an infant becomes entitled to the reversion of lands leased to a tenant from year to year, he cannot maintain an ejectment, unless he has given the tenant a proper notice to quit (e). There is not any distinction between houses and land, in this respect. Half a year's notice to quit, ending with the year of the tenancy, must be given in both cases (f). Neither will the circumstance of the rent being reserved quarterly, vary the case, if the tenancy be from year to year (g). So if a house be let from year to year, to quit at a quarter's notice, the notice must be given to quit at the end of a quarter expiring with a year of the tenancy (h). But if the demise be for one year only, and then to continue tenant afterwards, and to quit at a quarter's notice, a quarter's notice ending with any quarter will be sufficient (i), i. e. (semble), after the expiration of the first year (k). Where premises were let at a yearly rent of 421. payable quarterly, the tenant to hold and enjoy, &c. " until one of the said parties should give unto the other six months' notice," it was held that a halfyearly tenancy was established, the word "yearly" being one of calculation only (l). So where premises are taken under an agreement by which the "tenant is always to be subject to quit at three months' notice," this constitutes a quarterly tenancy, which may be determined by a three months' notice to quit, expiring at the same time of the year it commenced, or any corresponding quarter-day. But although the tenant under such an agreement enters in the middle of one of the usual quarters, if there appears to be no agreement to the contrary (e. g., by paying for the broken quarter (m)) he will be presumed to hold from the day he enters, and the tenancy can only be determined by a notice expiring on that day of the year, or some other quarter-day calculated from thence (n). An insufficient notice to quit, accepted by the landlord, will not amount to a surrender by operation of law (o).

A tenancy from year to year, so long as both parties please, is

(b) Doe v. Amey, 12 A. & E. 476. (c) Doe v. Porter, 3 T. R. 13; Parker v. Constable, 3 Wils. 25.

(d) Rees v. Perrot, 4 C. & P. 230. (e) Maddon v. White, 2 T. R. 159.

(f) Right v. Darby, 1 T. R. 162. (g) Shirley v. Newman, 1 Esp. 267. (h) Doe v. Donovan, 2 Campb. 78; 1 Taunt. 555, S. C.

(i) Per Chambre, J., S. C.

(k) Thompson v. Maberly, 2 Campb. 573.

(1) Doe v. Grafton, 18 Q. B. 496. (m) Doe v. Matthews, 11 C. B. 675. (n) Kemp v. Derrett, 3 Campb. 510; Doe v. Dobell, infra, acc.

(0) Per Parke, B., Doe v. Milward, 3 M. & W. 332, and post, p. 713-14.