removed, it is declared and enacted, that any person entitled to or claiming under any mortgage of land, within the definition contained in the first section of the act, may make an entry or bring an action at law or suit in equity, to recover such land at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twenty years may have elapsed since the time at which the right to make such entry or bring such action or suit shall have first accrued.

Any archbishop (a), &c. may make an entry, &c. within such period as hereinafter is mentioned, next after the time at which the right of such corporation sole, or of his predecessor, to make such entry, &c. shall first have accrued, (that is to say,) the period during which two persons in succession shall have held the office or benefice, in respect whereof such land or rent shall be claimed, and six years after a third person shall have been appointed thereto, if the times of such two incumbencies, and such term of six years, taken together, shall amount to sixty years; and if such times, taken together, shall not amount to sixty years, then during such further number of years, in addition to such six years, as will, with the time of the holding of such two persons, and such six years, make up sixty years; and after the 31st December, 1833, no such entry, &c. shall be made or brought at any time beyond the determination of such period.

At the determination (b) of the period limited to any person for making an entry, or distress, or bringing any writ of quare impedit, or other action or suit, the right and title of such person to the land, &c. for the recovery whereof such entry, &c. might have been made or brought within such period, shall be extinguished.

By sect. 35, the receipt of the rent payable by any tenant from year to year, or other lessee, shall, as against such lessee, or any person claiming under him, (but subject to the lease,) be deemed to be the receipt of the profits of the land for the purposes of

this act.

By stat. 3 & 4 Will. IV. c. 106, s. 2, descent shall be traced from the purchaser; and the person last entitled to the land shall, for the purposes of this act, be considered to have been the purchaser, unless it shall be proved that he inherited the same, in which case the person from whom he inherited the same shall be considered to have been the purchaser, unless it shall be proved that he inherited the same; and in like manner, the last person from whom the land shall be proved to have been inherited, shall in every case be considered to have been the purchaser, unless it shall be proved that he inherited the same.

(a) 3 & 4 W. IV. c. 27, s. 29.

(b) Sect. 34.

Where land (d) descends to the son of an illegitimate father, who is proved to have been the purchaser thereof, and the son dies seised and intestate and without issue, such land does not devolve on the heir ex parte maternâ, but escheats to the crown.

By section 3 of this act, when land shall have been devised by any testator who shall die after the 31st December, 1833, to the heir, or to the person who shall be the heir of such testator, such heir shall take as a devisee, and not by descent; and when land shall have been limited by any assurance executed after the 31st December, 1833, to the person or to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser, by virtue of such assurance, and not to be entitled thereto as his former estate, or part thereof.

By sect. 4, when any person shall have acquired any land by purchase, under a limitation to the heirs, or to the heirs of the body of any of his ancestors, contained in an assurance executed after the 31st December, 1833, or under a limitation to the heirs, or to the heirs of the body of any of his ancestors, or under any limitation having the like effect, contained in a will of any testator who shall die after the 31st December, 1833, such land shall descend and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such land.

By sect. 5, no brother or sister shall inherit immediately from brother or sister, but every descent from a brother or sister shall be traced through the parent.

By sect. 6, every lineal ancestor is made capable of being heir to any of his issue; and where there shall be no issue of the purchaser, his nearest lineal ancestor shall be his heir in preference to any person who would have been entitled to inherit, either by tracing his descent through such lineal ancestor, or in consequence of there being no descendant of such lineal ancestor, so that the father shall be preferred to a brother or sister, and a more remote lineal ancestor to any of his issue other than a nearer lineal ancestor or his issue.

By sect. 7 and 8, it is declared that the male line is to be preferred, and the mother of the more remote male paternal ancestor to be preferred to the mother of the less remote.

By sect. 9, persons of the half blood are made capable of inheriting; those of the half blood on the part of the male ancestor to inherit next after the relation in the same degree of the whole blood and his issue; and those of the half blood on the part of a female ancestor next after such female ancestor.

(d) Doe d. Blackburn v. Blackburn, 1 M. & Rob. 547.

By sect. 10, where a person through whom a descent is to be traced shall have been attainted, and died before such descent shall have taken place, the attainder shall not prevent the heir from inheriting, unless the land shall have escheated in consequence of such attainder, before the 1st January, 1834.

The act does not extend (e) to any descent which takes place on the death of any person who died before the 1st January, 1834; and where (f) the heir or heirs of any person take an estate by purchase, under an assurance executed before the 1st January, 1834, or a will of any testator dying before the same day, such heir or heirs will be determined by the old law, whether the person named as the ancestor shall be living or not on the 1st January, 1834.

XI. Evidence.

Evidence on the Part of the Lessor of the Plaintiff.-The evidence required to support an ejectment will vary according to the title of the lessor of the plaintiff.

Possession is primâ facie evidence of seisin in fee simple: the declaration of a deceased possessor that he was tenant to another, makes most strongly against his own interest, and consequently is admissible (g). So the admission of a deceased person in receipt of the rent, that he held under another, whether as tenant by sufferance, or as receiver of the rents, is evidence (h) that he himself was not the owner of the legal estate.

Devisee of a Term.-Where the lessor of the plaintiff is devisee of a term, he must produce in evidence the probate of the will, and prove the assent of the executor to the devise (i); for where a person devises, either specially or generally, goods or chattels, real or personal, and dies, the devisee cannot take them without the assent of the executor. Lessee for years devised the term to his executor for life (k), paying £50 to J. S., remainder to the lessor of the plaintiff. The executor dying, his executrix entered upon the residue of the lease, and possessed herself of the term. An ejectment having been brought; it was holden, that the executor took as executor, and not as legatee; and then the remainder over was not executed, and that it was incumbent on the remainder

(e) Sect. 11.

(f) Sect. 12.

(g) Peaceable v. Watson, 4 Taunt. 16, recognized in Carne v. Nicoll, Trial at Bar on writ of right, 1 Bingh. N. C. 430;

Gow's N. P. C. 227, S. P.

(h) Doe d. Daniel v. Coulthred, 7 A. & E. 239.

(i) 1 Inst. 111, a.

(k) Young v. Holmes, Str. 70.

man to prove a special assent thereto, as to a legacy; whereupon plaintiff proved payment of the £50; and that was holden to be a sufficient assent, and the plaintiff recovered. To prove the title of a lessor of the plaintiff in ejectment, claiming as executor, the will was produced from the registrar's office, with a memorandum at the foot of it, signed by the surrogate, that the executor had proved the will, and that the probate had been sealed. The probate was not produced, or accounted for; but it was proved that such a memorandum was never made till probate had been granted, and that, by the practice of the particular court, no other record of such grants was kept. The evidence was holden sufficient (1).

Administrator.-Where the lessor of the plaintiff claims title as administrator, in strictness he ought to produce the letters of administration under the seal of the Ecclesiastical Court. But the original book of acts (m), wherein the orders of the court for granting letters of administration are entered, or an examined copy (n) of the entry in that book, or an exemplification (o) of the letters of administration, will also be evidence. If the lessor of the plaintiff make title as assignee of a term from an administrator (p), cum testamento annexo, an exemplification, though not in hæc verba, yet agreeably to the form of the Ecclesiastical Court, will be good evidence (37).

Boundary. Reputation is admissible evidence in questions of boundary. Hence where the question was, whether land was in the parish of A., or the parish of B., the land in B. being tithe-free; it was holden (q), that ancient leases granted by the ancestor of the plaintiff's landlord, in which the land was described as being in parish B., were admissible as evidence of reputation, that the land was in that parish.

Copyhold.-If the plaintiff make title in the lessor as lord of a manor (r), who has a right by forfeiture of copyhold, he ought to prove that his lessor is lord, and the defendant a copyholder; and that he committed a forfeiture: but the presentment of the for

(1) Doe d. Bassett v. Mew, 7 A. & E. 240, recognizing Cox v. Allingham, Jacob, 514.

(m) Garrett v. Lister, 1 Lev. 25; Peaselie's case, 1 Lev. 101; Elden v. Keddell, 8 East, 187.

(n) Ray v. Clerk, London Sittings, after H. T. 1775; Lord Mansfield, C. J.,

13 East, 238.

(0) Per Lord Hardwicke, C. J., in Kempton v. Cross, Ca. T. H. 108.

(p) Kempton v. Cross, Ca. T. H. 108. (g) Plaxton v. Dare, 10 B. & C. 17. (r) Peters d. Bp. of Winton v. Mills, per Tracy, Surrey, 1707; Bull. N. P. 107.

(37) For the evidence necessary to establish a title by the heir, see Peake's Evid. Part II. Chap. 14, where this subject is treated with great perspicuity. For evidence on ejectment brought by the devisee of land, see post, tit. "Statute of Frauds," Sect. III,

feiture need not be proved, nor the entry or seizure of the lord for the forfeiture.

Tenant by Elegit.-As under an elegit the sheriff cannot deliver the land extended (s), the tenant by elegit must bring an ejectment (38); to support which he must either produce in evidence an examined copy of the judgment; of the writ of elegit taken out upon it, and the inquisition and return thereupon; or an examined copy of the judgment roll, containing the award of elegit and return of the inquisition (t). In an action by the lessee against the assignee of a lease, the plaintiff having proved the delivery of the original lease to the defendant, and the execution of the counterpart, the defendant put in the original lease, which was produced by a party to whom defendant had assigned it, by a deed reciting the lease; it was holden (u), that it was necessary for the plaintiff to call the subscribing witness to prove the execution of the lease. It is not competent to a party, who has taken under a deed all the interest which that deed was calculated to give, to dispute its

execution.

The sheriff's return to an elegit stated, that he had caused to be delivered to J. S., one equal moiety of a house; it was holden (x), that this return was void, for not setting out the moiety by metes and bounds, and that the objection might be taken at nisi prius to an ejectment brought by J. Š. claiming as a tenant by elegit. But on elegit sheriff may deliver entire (y) farms as moiety of the defendant's lands. A verdict was found for the lessor of the plaintiff, who claimed under a judgment recovered against the defendant, and writ of elegit and inquisition thereon taken and returned. Upon motion to enter nonsuit, the objection was, that by a deed executed 23d June, 1809, long before the judgment was recovered, the legal

(8) Per Lord Kenyon, C. J., in Taylor v. Cole, 3 T. R. 295.

(t) Ramsbottom v. Buckhurst, 2 M. & S. 565.

(u) Burnett v. Lynch, 5 B. & C. 589.

(x) Fenny d. Masters v. Durrant, 1 B. & A. 40.

(y) Doe d. Taylor v. Lord Abingdon, B. R. M. 21 Geo. III., 2 Doug. 473.

(38) "I am aware that it has in several places been said, that the tenant by elegit cannot obtain possession without an ejectment, but I have always been of a different opinion. I have no doubt that the sheriff may deliver actual possession of a moiety, except where the land is under a previous demise; in which case the sheriff sets out the moiety by metes and bounds; for the sheriff cannot disturb the previous title of the tenant in possession. Where the sheriff has set out the moiety, the tenant is bound to pay rent for his moiety to the tenant by elegit. In a case of this kind, attornment was not necessary, even before the statute of attornments, because tenant by elegit was in by judgment of law, to whom attornment was not necessary." Per Gibbs, C. J., 6 Taunt. 206, 7.