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 recognized in 2 Lord Raym. 1471.

Stable, 1 Lev. 58.

Where an Ejectment will not lie.—But an ejectment cannot be maintained for a

Canonry; for it is an ecclesiastical office only, Doe d. Butcher v. Musgrave, Clerk, Canon of Windsor, 1 M. & Gr. 625; 1 Scott's N. R. 451.

Close, 11 Rep. 55 Godb. 53.

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's R. 441 (11), messuage, garden, and tenement, Goodtitle v. Walton, Str. 834. 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 (h) to the good cause of action.

Messuage or tenement, Goodright on d. Welch v. Flood, 3 Wils. 23.

Messuage, situate in Coventry (i), in the parishes of A. and B., or one of them. Holden bad for uncertainty, after verdict, and that the words, " or one of them," could not be rejected.

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.

An ejectment will not lie for libera piscaria, Cro. Jac. 146; Cro. Car. 492; 8 Mod. 277; 1 Brownl. 142, contra per Ashhurst, J., 1 T. R. 361.

Nor pro quodam rivulo sive aquæ cursu, called D., Yelv. 143; nor for Pannage, 1 Lev. 214.

Nor for a tin-bound, Doe d. E. of Falmouth v. Alderson, 1 M. & W. 210.

70.

The owner of a fee by indenture granted to A., his partners, (h) Doe d. Laurie v. Dyeball, 8 B. & C.

(i) Goodright d. Griffin v. Fawson, 7 Mod. 457, 8vo. edit.; 1 Barn. 150, S. C.

(11) But 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 d. Wright v. Otway,

8 East, 357.

fellow-adventurers, &c., free liberty to dig for tin and all other metals throughout certain lands therein described, and to raise, make merchantable, and dispose of the same to their own use; and to make adits, &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 thereby granted, and to convey any watercourse over the premises granted, habendum for twenty-one years; covenant by the grantee to pay one-eighth share of all ore to the grantor, and all rates, taxes, &c., and to work effectually the mines during the term; and then, in failure of the performance of any of the covenants, a right of re-entry was reserved to the grantor: it was holden (k), that this deed did not amount to a lease, but contained a mere license to dig and search for minerals; and the grantee could not maintain an ejectment for mines lying within the limits of the set, but not connected with the workings of the grantee. But an action for use and occupation would lie ().

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 of a right of getting coal under another's land (m).

IV. In what Cases previous Steps must be taken before
Ejectment brought.

In some cases, before an ejectment can be brought, some previous steps must be taken, in order to entitle the plaintiff to the action. Under what circumstances these proceedings will be necessary, will appear from the following remarks:

An actual entry is necessary, to avoid a fine levied with proclamations, according to the stat. 4 Hen. VII. c. 24 (12); and an ejectment cannot be brought until such entry has been made (n). And by stat. 4 Ann. c. 16, the action must be commenced within one year next after the making such entry (13), and prosecuted with effect; the plaintiff laying his demise on a day subsequent to the day of the entry (o). But an actual entry is not necessary to avoid a fine at common law, without proclamations (p); nor a fine with (k) Doe d. Hanley v. Wood, 2 B. & A. 724.

(1) Jones v. Reynolds, 4 A. & E. 808. (m) Wilkinson v. Prind, 11 M. & W. 33.

(n) Berrington v. Parkhurst, 2 Str. 1086; Compere v. Hicks, 7 T. R. 727. (o) 2 Str. 1086; 7 T. R. 727. (p) Jenkins on d. Harris and Wife v. Prichard, 2 Wils. 45.

(12) See 3 & 4 Will. IV. c. 74, abolition of fines after 31st Dec. 1833. (13) This statute applies only where there was a naked entry or claim, and no receipt of rents and profits. Doe d. Grubb v. Grubb, 10 B. & C. 825.

proclamations, if all the proclamations were not made at the time when the ejectment was brought (q); nor a fine which has no operation, as a fine levied by son of tenant at sufferance (r), or a fine levied by a tenant for years (s); nor to maintain an ejectment on a clause of re-entry or non-payment of rent (t). So if one of two tenants in common of a reversion levy a fine of the whole, such fine does not require an actual entry by the other tenant in common to avoid it (u). Where tenant for life levies a fine with proclamations, although it is not any bar to those in remainder, yet a remainder-man must make an actual entry, in order to avoid it, before he can maintain an ejectment (x); but he need not enter until five years after the death of a tenant for life (y). An entry upon an estate generally, is an entry for the whole (2); if it be for less, it should be so defined at the time. But it is a sufficient entry to avoid a fine, if the party enters expressly to claim the premises as his own (a); it is not necessary for him to say that he enters to avoid all fines, or to specify what particular act, adverse to his own interest, he means to defeat. In a case where a party had a right of entry upon condition broken (b); and a stranger entered, and afterwards the plaintiff assented to such entry, and brought an ejectment, laying the demise after the assent, it was holden sufficient. Where an ejectment is brought by a corporation aggregate, they must execute a letter of attorney to some person, empowering him to enter on the land; but a verbal notice to quit, given by a steward of a corporation, is sufficient (c). Where lands are in the possession of a receiver (d), under an appointment of the Court of Chancery, an ejectment cannot be brought for the recovery of such lands, without leave of the court.

V. In what Cases a Notice to quit must be given before Ejectment brought, p. 706; Requisites of Notice, p. 710; Waiver of Notice, p. 714; Where Notice is not required, p. 718; Stat. 1 Geo. IV. c. 87, for Recovery of Lands, &c. unlawfully held over, p. 721.

THE old tenancy at will being attended with many inconveniences, the inclination of the courts has of late been to make every tenancy

(q) Doe d. Ducket and Ladbrooke v. Watts, 9 East, 17, in which Tapner d. Peckham v. Merlott, Willes, 177, was overruled.

(r) Doe v. Perkins, 3 M. & S. 271. (8) Per Lord Kenyon, C. J., in Peaceable v. Read, 1 East, 575.

(t) Goodright v. Cator, Dougl. 477. (u) Roe v. Elliot, 1 B. & A. 85. See also Doe v. Harris, 5 M. & S. 326.

(x) Compere v. Hicks, 7 T. R. 433, 727.

(y) Pomfret v. Windsor, 2 Ves. 481. (z) Per Ld. Kenyon, C. J., 3 T. R. 170. (a) Doe d. Jones v. Williams, 5 B. & Ad. 783.

(b) Fitchet v. Adams, 2 Str. 1128; recognized by Patteson, J., in Doe d. Blight v. Pett, 11 A. & E. 850; 4 P. & D. 278.

(c) Roe d. Dean and Ch. of Rochester v. Pierce, 2 Campb. 96.

(d) Angel v. Smith, Eldon, C., 10 Ves. jun. 335.

a holding from year to year, if they can find any foundation for it(e), 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 (14) notice (ƒ), 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 (g) of particular places (15). 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 against taking successive crops of corn, and a condition for re-entry on breach of covenant, thereby becomes a yearly tenant subject to such covenant and condition (h). 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 (i). 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 (k).

(e) See Richardson v. Langridge, 4 Taunt. 128, where the agreement was holden 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; recognized in Braythwayte v. Hitchcock, 10 M. & W. 494. In Freeman v. Jury, M. & Malk. 19, and post, tit. "Use and Occupation," where rent had been paid for a single quarter only, Abbott, C. J., held that

not to be evidence of a new continuing tenancy.

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

(g) Roe d. Brown v. Wilkinson, Harg. & But. Co. Litt. 270, b. n, 1; Roe d. Henderson v. Charnock, Peake's N. P. C. 4, 5.

(h) Doe d. Thompson v. Amey, 12 A. & E. 476; 4 P. & D. 177.

(i) Doe d. Shore v. Porter, 3 T. R. 13. See also 3 Wils. 25, and Lawrence, J., in Rex v. Stone, 6 T. R. 298.

(k) Maddon v. White, 2 T. R. 159.

(14) By legal computation half a year contains 182 days; for the odd hours are rejected. I 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 holden to be a good notice. Doe d. Harrop v. Green, 4 Esp. N. P. C. 199. And Lord Ellenborough, in the same case, said, that a notice on the 29th of September to quit at Lady Day following had been holden good. See R. v. Swyer, 10 B. & C. 486; where it was holden, that the words, "Three Years" in the prohibitory clause of a charter, imported years of office, and not calendar years. Prima facie the word "month," except in the case of a mercantile instrument means a lunar

month*.

(15) By the custom of London, a tenant at will, under 40s. rent, shall not be turned out without a quarter's warning. Dethik v. Saunders, 2 Sidf. 20. See also Tyley v. Seed, Skin. 649.

Per Littledale, Patteson, and Coleridge, J. J., in Reg. v. Inhabitants of Chawton, 1 Q. B. 247; 4 P. & D. 525.

VOL. II.

C

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 (1). Neither will the circumstance of the rent being reserved quarterly, vary the case, if the tenancy be from year to year (m) (16). 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 (n). 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 at any time will be sufficient (o). 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, 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 (p). An insufficient notice to quit, accepted by the landlord, will not amount to a surrender by operation of law (q).

A demise, "not for one year only, but from year to year," enures as a demise for two years at least; and consequently, the tenant cannot be ejected after a notice to quit at the expiration of the first year (r). And where land was let for one year, and so on from year to year, until the tenancy should be determined as after mentioned, with a proviso that three months should be sufficient notice to be given from either party, and another proviso that it should be lawful for either party to determine the tenancy by giving three months' notice; it was holden (s), that the tenancy was not determinable by three months notice expiring before the end of the second year. But where furnished apartments were taken (t) "for twelve months certain, and six months' notice afterwards;" it was contended, that the defendant, under the above taking, was not at liberty to quit till six months' notice had been given after the expiration of the first year; but Lord Ellenborough was clearly of

(1) Right v. Darby, 1 T. R. 162.

(m) Shirley v. Newman, 1 Esp. N. P. C. 267, Kenyon, C. J.

(n) Doe d. Pitcher v. Donovan, 2 Campb. 78; 1 Taunt. 555, S. C.

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

(p) Kemp v. Derrett, 3 Campb. 510.

(q) Per Parke, B., Doe d. Murrell v. Milward, 3 M. & W. 332, and post, p.712. (r) Denn v. Cartwright, 4 East, 31.

(s) Doe d. Chadborn v. Green, 9 A. & E. 658; and see Doe d. Robinson v. Dobell, 1 Q. B. 806; 1 G. & D. 218.

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

(16) But where a house is taken by the month, a month's notice will be sufficient. Doe d. Parry v. Hazell, 1 Esp. N. P. C. 94.