By what

established principle that the description should be so certain as to enable the sheriff exactly to know, without any information from the plaintiff, of what to deliver possession a. This rule, however, has long since ceased to prevail. The same degree of certainty that was formerly required is not now necessary. The practice is for the sheriff to deliver possession of the premises recovered according to the directions of the plaintiff, who therein acts at his peril b.

An ejectment may be sustained for an orchard, because it is description. a word of certain signification, and the sheriff may with certainty deliver it in execution. So, for a stable and a cottage, or for one curtilage and a garden. So, for a housed; or a chamber in the middle story of a house e. It has been held that it would not lie for a kitchen; for though the word be well understood in common parlance, yet as any chamber in the house may be applied to that use, it is not sufficiently certain ; besides, the kitchen may be changed between judgment and execution f; nor will it lie for a close, because that is of uncertain extent; nor for a piece of land; nor for the fourth part of a meadow, without setting forth the particular contents or number of acres &. But ejectment for a close called D., containing three acres of land, was held good h. An ejectment will lie for cornmills, without saying of what kind, whether wind-mills or water-mills i. So, it will lie for a church, if demanded by the name of a messuagek. So, for a certain place called the vestry, in D.1

An ejectment will not lie for a tenement, because many incor

poreal hereditaments are included in that appellationa; nor for “a messuage or tenement," for the signification of the word “tenement" being more extensive than that of the word messuage, it is not sufficiently certain what is intended to be demanded b nor for a messuage and tenement c. But where in ejectment for "a messuage and tenement" a verdict was entered generally, the court permitted the plaintiff (pending a rule nisi to arrest the judgment) to enter the verdict according to the judges' notes for the messuage only, and that, without releasing the damages; for it is a settled rule that if the same count contains two demands or complaints, for one of which the action lies and not for the other, all the damages shall be referred to the good cause of action, although it would be otherwise if they were in separate counts e. Ejectment will not lie for a "tinbound," for it is a mere easement and gives no possession of the surface f.

But an ejectment will lie for "a messuage or tenement" with other words expressing its meaning, as a messuage or tenement called the Black Swan, for the addition reduces it to the certainty of a dwelling-house 5. So, for a messuage or burgage, for both signify the same thing in a borough 1. An ejectment will lie for a boilery of salt, although by the grant of a boilery of salt the grantee is only entitled to a certain proportion of the number of buckets of salt water drawn out of a particular salt water well, for by the grant of a boilery of salt, the soil shall pass, inasmuch as it is the whole profit of the soil i. So, for a coal mine; for though a man may have a right to the mine without any title to the soil, yet the mine being fixed in a certain place, the sheriff has a certain thing before him of which

Goodtitle v. Walton, 2 Stra. 834. Copleston v. Pipes, 1 Lord Raym. 191. Adams, 25.

Ashworth v. Stanley, Styl. 364. Wood v. Payne, Cro. Eliz. 186. Goodright d. Welsh v. Flood, 3 Wils. 23.

• Doe d. Bradshaw v. Plowman, 1 East, 441, overruling Doe d. Stewart v. Denton, 1 T. R. 11.

Goodtitle d. Wright v. Otway, 3 East, 357.

e Doe d. Laurie v. Dyball, 8 B. & C.71. 1 Moor & P. 330. 2 M. & Ry.184.

f Doe d. Falmouth, Earl of, v. Alderson, 1 Gale, 441. 1 Mees. & Wels. 210.

& Burbury v. Yeomans, 1 Sid. 295. Run. 144. Adams, 26.

h Id. Danvers v. Wellington, Hard. 173. Rochester v. Rickhouse, Pop. 203.

Smith v. Barrett, Sid. 161. 1 Lev. 114. Co. Litt. 4. Adams, 19.

he can deliver possession. But when a grant of mines operates only as a license to work mines within a certain district during the term, a party cannot maintain ejectment in respect of mines within the district which he has not opened, or which having opened he has abandoned. An ejectment will lie for a fishery, though it was formerly considered otherwise d. Ejectment will lie for a pool or pit of water, for those words comprehend both land and water. But it will not lie for a watercourse or rivulet, unless the land through which it flows belong to the claimant, in which case it may be declared upon as so many acres of land covered with water. So, it will lie by the owner of the soil for land which is part of the king's highway; his recovery of it, however, will be subject to the public easement 8. So, it will lie for the first grass or aftermath, for the grantee is entitled to all the profits of the land for the time being h. So, it will lie for the pasture of a hundred sheep 1, and for the herbage; because the grantee has an interest in the soil k. But not for pannage, because it is only the mast which falls from the trees and not part of the soil itself1.

In ejectment for land the particular species should be mentioned in the description, whether pasture, meadow, &c., because land, in its legal acceptation, signifies only arable land m. An ejectment for ten acres of underwood"; fifty acres of gorze and furze; fifty acres of moor and marsh P; ten acres of pease, has been held sufficient.

a

Lands will be sufficiently described by terms used in the dis

1d. Comyn v. Kineto, Cro. Jac. 150. Noy. 121.

b Doe d. Hanley v. Wood, 2 B. & A. 724. Croker v. Fothergill, id. 652.

Per Ashhurst, J., in R. v. Arlesford, 1 T. R. 358.

d Molineaux v. Molineaux, Cro. Jac. 144. Herbert v. Laughlyn, Cro. Car. 429.

e Co. Litt. 5. Challenor v. Thomas, Yelv. 143.

f Id.

Goodtitle d. Chester v. Alker, 1 Burr. 133.

trict or county in which they are situate. Thus, ejectment will By what description, lie for the recovery of "five acres of alder carr," in Norfolk, because alder carr is a term well known in that county, signifying land covered with alders. So, for a beast gate in Suffolk, and for cattle gates in Yorkshire. So, for a township, for a kneave, for so many acres of bog, or of mountain, in Ireland, the word mountain in that country being rather a description of quality than the situation of the land d. So, an ejectment for fifty "messuages, one hundred acres of land in all those one moiety or full half of the town and lands of C."; was held sufficiently certain. But ejectment will not lie in England for so many acres of mountain or of waste, because both waste and mountain comprehend, in England, many sorts of land f.

Ejectment will lie for a manor; or a moiety of a manor generally, without any description of the number of acres or species of land contained therein; but it is more safe to describe the quantity and species of the land 8. So, it will lie for a rectory, consisting of church, glebe-lands and tithes, on the principle that it resembles a manor. Where a party was presented to a rectory, in consideration of his having given a bond to resign in favour of a particular person at the request of the patron; and was instituted and inducted; and such bond was held to be void on the ground that it was simoniacal, and the king then presented A. B., and he was instituted and inducted; held, that he might maintain ejectment for the rectory against the person who had been simoniacally presented, because the church was void; but if it had been full quare impedit was the proper remedy h

It has been held that ejectment will lie for tithes to get into the receipt of the profits of a benefice, although there is no

glebe-land". In ejectment for tithes, the particular species of tithe demanded should be specified in the declaration, as of hay, wheat, &c., or the description will be bad for uncertainty b. But it is not necessary to specify the quantity of each species; it will be sufficient to say "of certain tithes of hay, corn," &c. A common appendant or appurtenant may be recovered in ejectment brought for the lands to which it is appendant or appurtenant, provided such right of common be mentioned in the description of the premises; because he who has possession of the land has also possession of the common, and the sheriff by giving possession of the one executes the writ as to the other d.

SECTION III.

OF THE TITLE NECESSARY TO SUPPORT EJECTMENT.

tiff must have the legal title, and the right of

The plain 1.-The plaintiff must have a legal title, and a right of entry.] As the party in possession of property is presumed to be the owner until the contrary appears, the claimant in ejectment must show a good title in himself; he cannot found his claim possession, on the weakness of that of the defendant; for possession gives at the time the defendant a right against every man who cannot establish a good title. The plaintiff must be clothed with the legal title to the lands in dispute. An equitable title will not avail : so fixed and immutable is this principle, that a trustee may maintain ejectment against his own cestui que trust 8, and an unsatisfied term outstanding in trustees will bar the recovery of

of the demise laid.