Nature and ori At this period, however, the fiction of a merely nominal plaingin of the action. tiff and defendant, and the practice of entering into a consent For what it lies. rule, to confess lease, entry, and ouster, were unknown. The plaintiff was a real person, to whom a lease was actually sealed, by the claimant, upon the land; and the defendant was also a real person who entered and ousted the plaintiff. It frequently happened, while this practice continued, that the real tenant of the land was turned out, without having an opportunity of asserting his title. In order to prevent this abuse, a rule of court was made, prohibiting the plaintiff in ejectment from proceeding against the defendant, without previously giving notice to the person actually in possession of the lands, who was then allowed by the court to defend the action, on an undertaking to indemnify the defendant, in whose name the action still proceeded. (a) The period at which this rule was made is uncertain; but it was probably introduced soon after the action came into common use. At length a new mode of proceeding was invented, as it is said, by Rolle, C. J., who presided in the upper bench during the Protectorate. The ancient practice of entering upon the land and sealing a lease was dispensed with; the plaintiff and defendant were no longer real persons, but the tenant in possession of the land was allowed to become defendant on entering into a rule to confess the lease to the fictitious plaintiff, his entry into the land, and his ouster by the fictitious defendant, or as he was termed, the casual ejector, and the subsequent proceedings were carried on in the name of the real tenant. (b) With various improvements engrafted upon it, such continues to be the practice at the present day. Ejectment, in general, lies only for the recovery of corporeal hereditaments. With regard to the description of the things for which this action may be sustained, and the degree of certainty with which they ought to be described, it is observable, that a greater liberality prevails in the modern cases, than existed at an earlier period. (c) At first, it appears to have been thought, that an ejectment could not be brought for any thing (a) Style, $68. (b) Style, 368. Fairclaim d. Fowler v. Shamtitle, 3 Bur. 1297. Adams, Eject. 14, 2nd edit. Gilb. Eject. 5, 2nd edit. (c) See Cottingham v. King, 1 Burr. 629. Connor v. West, 5 Burr. 2673. which could not be demanded in a præcipe (a); and where an For what it lies. ejectment was brought for "a close, called Dovecot Close, containing three acres," without specifying the nature of the land, judgment was arrested for the uncertainty. (b) This strictness has since been greatly relaxed, and the courts will now permit premises to be recovered in ejectment under many names, by which they cannot be demanded in a præcipe. (c) For some time, also, an idea prevailed, that it was necessary for the description in ejectment to be so certain, that the sheriff might be able to know, without any information from the plaintiff, of what premises to give possession; but as, according to the modern practice, the plaintiff is to shew the sheriff the premises recovered, and to take possession at his peril, of that portion only to which he has title (d), such accuracy is no longer required. There is no objection to a bis petitum, or second description of the same thing in ejectment. (e) Houses and An ejectment will lie for a messuage, but not for a messuage or tenement, such description not being sufficiently certain (f); other buildings. nor for a messuage and tenement. (g) But an ejectment for a messuage or tenement "called the Black Swan," has been said to be good, for the addition of the name renders it sufficiently certain (h), and after a verdict in ejectment for a messuage and tenement the court will give leave to enter the verdict according to the judge's notes, for the messuage only (pending a rule to arrest the judgment) without obliging the lessor of the plaintiff to release the damages. (i) An ejectment for a messuage or burgage is good, because they both signify the same thing in a (a) See Challenor v. Thomas, 1 Bro. 142; and the argument in Macduncoh v. Stafford, 2 Roll. Rep. 166. Knight v. Symms, Comb. 198, 199. (b) Savel's case, 11 Rep. 55, a; but this case has been doubted, and cannot now be considered as law. See 2 Roll. Rep. 167. Sprigg v. Rawlinson, Cro. Car. 555. Bindover v. Sindercombe, 2 Lord. Raym. 1472. Cottingham v. King, 1 Burr. 628; but see Knight v. Syms, 1 Salk. 254. 482. Cottingham v. King, 1 Burr. 630. (ƒ) Ashworth v. Stanley, Styl. 364. (g) Goodtitle v. Walton, 2 Str. 834. Doe'd. Bradshaw v. Plowman, 1 East, 441, overruling Doe v. Denton, 1 T. R. 11. (h) Per Twisden, J., Burbury v. Yeomans, 1 Sid. 295. Hexham v. Coniers, 3 Mod. 238. Bindover v. Sindercombe, 2 Ld. Raym. 1470. Gilb. Eject. 56, 2nd edit. (c) See ante, p. 17, and post. (d) Cottingham v. King, 1 Burr. 629, 630. Connor v. West, 5 Burr. 2673. (i) Goodtitle d. Wright v. Otway, Crocker v. Fothergill, 2 B. and A. 660. 8 East, 357. (e) Warren v. Wakeley, 2 Roll. Rep. For what it lies. borough. (a) Though a house should be demanded in a præcipe Land. by the name of a messuage, yet it may be recovered in an ejectment by the name of a house. (b) So ejectment lies for "a cottage" (c), "for a warehouse" (d), for "a chamber or room" (e), for "a passage-room" (f), for "the fourth part of a house in N." (g), for "part of a house known by the name of the Three Kings in A." (h), for “a stable” (i), for "a place called the vestry" (k), for a chapel by the name of "a house or messuage” (1), for a church by the name of " a messuage" (m), for "four mills," without expressing whether they are wind-mills or water-mills. (n) If a person eject another from land, and build part of a house upon the land, the whole may be recovered under the name of "land." (0) In ejectment for land, the particular quality should be mentioned, for the word "land" in its legal occupation signifies arable land (p); but it seems not to be necessary to specify the particular quantity of each quality, thus an ejectment for "fifty acres of furze and heath," without mentioning how many acres of each, has been held good on error. (q) Ejectment will not lie for "a close" (r), but where a name is given to it, the description' appears to be sufficiently certain, although the number of acres, or the quality of land be not stated. (s) Ejectment will not lie for (a) Danvers v. Wellington, Hard. (c) Hill v. Giles, Cro. Eliz. 818. (d) Dictum of the Court, Sprigg v. Rawlinson, Cro. Car. 554. Gilb. Eject. 57, 2nd edit. (e) Ibid. Anon. 3 Leon. 210. (ƒ) Bindover v. Sindercombe, 2 Ld. Raym. 1470. (g) Rawson v. Maynard, Cro. Eliz. (h) Sullivane v. Seagrave, 1 Str. 695. (1) Harper's case, 11 Rep. 25, b. (m) Hollingsworth v. Brewster, 1 Salk. 236, for a prebendal stall after admis (0) Goodtitle d. Chester v. Alker, 1 Burr. 144, but if the whole of a house be built on the premises, it would be more proper so to name it. Ibid. (p) Savel's case, 11 Rep. 55, a. Ante, p. 483. (q) Connor v. West, 5 Burr. 2672. Fitzgerald v. Marshal, 1 Mod. 90, but there are several old cases contra, Knight v. Syms, 1 Salk. 254. Carth. 204, S. C. Martyn v. Nichols, Cro. Car. 573. (r) Savel's case, 11 Rep. 54. 1 Roll. R. 55, S. C. Knight v. Syms, 1 Salk. 254. 1 Show. 338. Carth. 204, S. C. (8) Royston v. Eccleston, Cro. Jac. 654. Lady Dacre's case, 1 Lev. 58. Jones v. Hoel, Cro. Eliz. 235. Barbary v. Yeomans, 1 Sid. 295; but there are several cases contra, Savel's case, 11 a piece of land" (a), but it will lie for "ten acres of pease," for For what it lies. in common acceptation, ten acres of pease, and ten acres sowed with pease, signify the same thing (b); so ejectment lies for "underwood" (c), and for an "orchard" (d), and for so many acres of "land covered with water," but not for a water-course or rivulet. (e) It will be sufficient if land is described by the provincial term by which it is known in the county where it lies. Thus an ejectment may be maintained for so many acres of "Alder Carr” in Norfolk, such term in that county signifying land covered with alders (ƒ), so for "cattle-gates" in Yorkshire (g), so for "beastgate," which imports land and common for one beast in Suffolk. (h) So an ejectment may be maintained in Ireland, for so many acres "of mountain" (i), or for so many acres of "bog" (k), or for a "quarter of land" (1), for by such names the quality of land in Ireland is understood; but an ejectment in England for one hundred acres of mountain, or one hundred acres of waste, has been held bad for uncertainty, because mountain and waste in England comprehend land of various quality. (m) Ejectment has been brought for a boilary of salt, although the claimant was only entitled to a certain number of buckets of saltwater drawn out of the well. (n) The reason of ejectment lying in this case is said to be, because the water is fixed in a certain place, within the bounds and compass of the well, and is considered as part of the soil. (0) It is said, in some old cases, that it is not safe to bring eject Rep. 54. Knight v. Syms, 1 Salk. 254. Show. 338. Carth. 204, S. C. Palmer's case, Owen, 18. Jordan v. Cleabourne, Cro. Eliz. 339, the court divided, and see Wykes v. Sparrow, Cro. Jac. 435. Hutchinson v. Puller, 3 Lev. 97. Vin. Ab. Eject. (L). (a) Palmer v. Humphrey, Moor, 702. Owen, 18, S. C. (b) Odingsall v. Jackson, 1 Brownl. 149. (f) Barnes v. Peterson, 2 Str. 1063. (h) Bennington v. Goodtitle, 2 Str. 1084. (i) Ld. Kildare v. Fisher, 1 Str. 71. 511. (1) Cottingham v. King, 1 Burr. 623. (c) Warren v. Wakeley, 2 Rol. Rep. Smith v. Barrett, 1 Sid. 161. 1 Lev. 485. (d) Wright v. Wheatley, Cro. Eliz. 854. (e) Challenor v. Thomas, Yelv. 143. 1 Brownl. 142, S. C. 114, S. C. Commyn v. Kincto, Cro. Jac. (0) Gilb. Eject. 62, 2nd edit, For what it lies. ment for a manor, without stating the quantity and quality of the land therein (a); but as a manor may be demanded by that name in a præcipe (b), it seems to be a good description in ejectment. If the manor be only a manor by reputation, it should not be described by the name of a manor. (c) Prima tonsura Under the name of land, the plaintiff may recover land subject to a public easement, as the king's highway, and it will not vitiate the description, that a wall, or part of a house, has been built upon the land. (d) An ejectment may be maintained pro primâ tonsurâ, where a and herbage. man has a grant of the first grass which grows on the land every year. (e) And so for hay-grass, and after-math; and a right to the herbage is sufficient to maintain ejectment, though by such grant, the soil itself does not pass (ƒ), but the ejectment should be for the herbage of the land, and not for the land itself (g); ejectment will also lie for "pasture for one hundred sheep," that is for so much land as will feed a hundred sheep. (h) Mines. Ejectment will lie for a "coal-mine," (i) So ejectment for land, and a coal-pit in the same land, has been held to be good. (k) And where ejectment was brought in Durham for "coal-mines in the parish of D." generally, without mentioning the number of the mines, the court on error, finding the precedents of ejectments in Durham were in that form, affirmed the judgment. (1) A person who has a mere licence to dig and search for minerals, cannot maintain ejectment; such licence (a) Norris v. Isham, Hetley, 81. (c) Hems v. Stroud, Latch, 163. (e) Ward v. Petifer, Cro. Car. 362. (f) Wheeler v. Toulson, Hard. 330, |