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cise rent due, 1 Saund. 287, and that it was made on the precise day on which it became due, Co. Lit. 202, or that it was made on the land, and at a convenient time before sunset, &c., see 1 Saund. 287. If he proceeds on the 4 G. 2, c. 28, s. 2, which does away with these formal proceedings at common law, he must prove that half a year's rent be due before the service of the declaration, and that there was no sufficient distress upon the premises to answer the arrears of rent then due, and that the lessor had power to re-enter. The pit. must, however, still prove a demand of the rent, though he proceeds under this act, if the lease expressly require it: Doug. 486; 5 D. & R. 711; 3 B. & C. 752. Upon a lease, reserving rent payable quarterly, with a proviso, that, if the rent be in arrear twenty-one days next after day of payment, being lawfully demanded, the lessor may re-enter, it [*471] was held that, five quarters being in arrear, and no sufficient distress upon the premises, lessor might re-enter without a demand: Doe d. Scholefield v. Alexander, 2 M. & S. 525; Doe d. Shrewsbury v. Wilson, 5 B. & A. 384. Under a proviso in the lease for the entry of the landlord, in case the rent should be in arrear fourteen days, and no distress found upon the premises, he is entitled to recover in ejectment, on proof of half a year's rent due at Lady Day, and no distress on the premises on some day in May, the demise being laid on the 2d of May, and the declaration served on the 6th of June: Doe d. Smelt v. Fuchaue, 15 East, 286. The insufficiency of the distress must be clearly established, if the plt. proceed under this act, and every part of the premises must be searched, see 7 T. R. 117; Rees v. King, 2 B. & B. 514; Forrest, 19.

If the ejectment be for the breach of any other covenant, the claimant must show the covenant broken, by the same proof as in an action of covenant: see "Lease."

If it be for not repairing, the non-repairs must be proved by a competent party, usually a surveyor. If a notice to repair has been served, such service should he proved, and deft. served with a notice to produce it, proving also the service: see infra, post, "Secondary Evidence." If the covenant be to keep and leave the house in as good a plight as it was in at the time of making the lease, ordinary and natural decay is no breach of the covenant, the covenanter being only bound to do his best to keep it in the same plight, and therefore to keep it covered, &c.: Sheph. Touch. 169. Breaking a door-way through the wall of a demised house, into an adjoining one, amounts to a breach of covenant to keep in repair: Doe v. Jackson, 2 Star. 293. Broken windows or doors are evidence of the breach to keep in repair, Co. Lit. 57, a., 2 Saund. 352, a. 7; but it should seem, in all cases, the non-repair must have existed a reasonable time. Where there is an express and unconditional covenant to repair, the tenant is bound to do so within a reasonable time, though the premises be destroyed by fire, or other accident: Aleyn, 27; 6 T. R. 650, 750; Com. R. 626; 4 Taunt. 45; Sheph. Touch. 173. A covenant to keep in repair is broken, and the party may be ejected, for not repairing within the term: Luxmore v. Robson, 1 B. & A. 584. As to what is a waiver of a breach of covenant to repair, and when plt. bound by his notice to repair, see post, 473.

If the breach of covenant be for not insuring, the insurance offices in which the insurance should have been made, should be searched, and it should be established no insurance has been made there. In ejectment on a forfeiture for not insuring, the lessee having covenanted to insure in the joint names of himself and the lessor, and in two-thirds of the value of the premises devised, and the lessee had insured in his own name only, and, as contended, to a less amount than two-thirds of the value of premises, both parts of the lease remaining in the possession of the lessor, and an abstract only having been delivered by him to the lessee, which contained no mention that the insurance was to be in the joint names, though it stated that it was to be in two-thirds of the value of the premises, and the lessor of the plt. had previously insured the premises at the same sum as the deft., it was held that, the conduct of the lessor being such as to induce a reasonable and cautious man to conclude that he was doing all that was necessary or required of him, in insuring in his own name, and to the amount insured, he could not recover for a forfeiture, though there was no dispensation or release: Doe v. Rowe, 1 R. & M.

343.

On a clause of re-entry, in case the tenant should assign, set over, or otherwise let the demised premises, it is not sufficient to prove the deft. a stranger, in possession of the premises, Doe v. Payne, 1 Stark. 86; but

see Doe d. Haidly v. Rickarby, where it was held, that, if a per[*472] son be *found on the premises, appearing as the tenant, it is prima-facie evidence of an underletting, sufficient to call upon deft. to show whether the person so holding was either in the capacity of a tenant or a servant: 5 Esp. 4.

Where the terms of the lease were not to set, let, or assign over the whole or part of the premises, without leave in writing," an under-lease was considered a forfeiture, and a parol license to let part of the premises does not discharge the lessee from the restriction of such a proviso: Roe d. Gregson v. Harrison, 2 T. R. 425. But a covenant "not to assign, transfer, set over, or otherwise do or put away the lease," was held not to extend to an under-lease for the term: Crusoe d. Blencowe v. Bugby, 2 W. Bla. 766; 3 Wils. 234, s. c. Covenant in a lease "not to let, set, assign, transfer, set over, or otherwise part with the premises thereby demised, or that present indenture of lease :" held, that a deposit with a creditor, as a security for money advanced, was not a "parting with," within the meaning of the covenant: Doe d. Pitt v. Laming, R. & M. 36; Doe d. Pitt v. Hogg, 4 D. & R. 225; 1 C. & P. 160, s. c. It is said, that a devise of the terms by the lessee is not a breach of the covenant not to assign: Crusoe d. Blencowe v. Bugby, 3 Wils. 234; Doe d. Goodbehere v. Bevan, 3 M. & S. 361; Berry v. Taunton, Cro. E. 331. When a lease contained a proviso for re-entry, in case the tenant should devise, lease, grant, or let the demised premises, or any part or parcel thereof, or convey, &c., to any person whomsoever, for all or any part of the term, without the license of the lessor in writing, and the deft., without such license, agreed with a person to enter into partnership with him, and that he should have the use of the back chamber, and some other parts of the premises exclusively, and of the rest jointly with deft., it was held, a forfeiture had taken place, and the lessor was entitled to

re-enter: Roe d. Dingley v. Sales, 1 M. & S. 297. But letting lodgings is not a breach of a covenant not to underlet: Doe d. Pitt v. Laming, 4 Camp. 77. Any act, usually constituting a breach of covenant, has been held not to have that effect, if done by compulsion of law. So, where a lessee who had covenanted not "to let, set, assign, transfer, make over, barter, exchange, or otherwise part with the indenture," &c., gave a warrant of attorney to confess judgment, on which the lease was taken in execution and sold, held, no forfeiture of the lease, Lord Kenyon observing, "judgments, in contemplation of law, always pass in invitum; and I see no difference between a judgment that is obtained in consequence of an action resisted, and a judgment that is signed under a warrant of attorney, since the latter is merely to shorten the process, and to lessen the expense of the proceeding: Doe d. Mitchinson v. Carter, 8 T. R. 57, 61. So, an assignment under a commission of bankrupt is not a breach of a condition not to assign: Doe d. Goodbehere v. Bevan, 3 M. & S. 353. And so, where a lease contained a proviso for re-entry of the lessor, and the lease should be void on the lessee's assigning without the license of the lessor, and the lessee, in January, 1825, executed a deed, which purported to convey all his real and personal property to trustees, for the benefit of his creditors, and, in April, 1825, a commission of bankruptcy issued against the lessee, held, that the deed was an act of bankruptcy, and void, and that it did not operate as a valid assignment of the tenant's interest in the lease, and therefore there was no forfeiture: Doe d. Lloyd v. Powell, 5 B. & C. 318.

Waiver of Forfeiture.] The receipt of rent, as such, will be a waiver of the forfeiture, if the rent accrue after the forfeiture; but the receipt of money as a remuneration for the use and occupation of the premises, after the forfeiture, will not; it will be a question for a jury whether the money was taken as rent: Goodright v. Cordwent, 6 T. R. 119; Doe v. Batton, Cowp. 243. Acceptance of rent, however, will not operate as a waiver of the forfeiture, or a confirmation of the tenancy, unless *notice have been given to the land- [*473] lord that a forfeiture was incurred at the time: Roed. Gregson v. Harrison, 2 T. R. 425; Goodright d. Walter v. Davids, Cowp. 804. Bringing an action of covenant for rent accrued after forfeiture is a waiver; for, by bringing the action of covenant on the lease, he admits the deft. to be tenant in possession by virtue of that lease: Roe d. Crompton v. Minshull, B. N. P. 96. Making a distress on the premises for rent accruing after the forfeiture, is a waiver: Zouch d. Ward v. Willingdale, 1 H. Bl. 311; Doe d. Taylor v. Johnson, 1 Stark. 411. The making an insufficient distress for rent, the non-payment of which caused the forfeiture, will not be a waiver of the forfeiture: Brewer d. Onslow v. Eaton, 6 T. R. 220. Mere knowledge and acquiescence in an act, constituting a forfeiture, does not amount to a waiver; there must be some act affirming the tenancy. So, where a lessee exercised a trade on the demised premises, by which his lease is forfeited, the landlord does not waive the forfeiture, by lying by and witnessing the act for six years: Doe d. Sheppard v. Allen, 3 Taunt. 78; Pennant's case, 3 Rep. 64. A lessor, having a right of re-entry, on breach of covenant not to underlet, does not, by waiving his security on one underletting, VOL. I.

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also waive his right to re-enter on a subsequent underletting: Doe d. Boscawen v. Bliss, 4 Taunt. 735. Where there was a general covenant, on the part of the tenant, to keep the premises in repair, and a further stipulation that he would, within three months after notice given him, repair all defects specified in the notice, the giving a notice to repair "forthwith," was not considered a waiver of the forfeiture, and the party was held entitled to bring ejectment, even before the expiration of the three months, Roe d. Goatley v. Paine, 2 Camp. 520; but, where the notice was, in a similar case, to repair within three months, it was held to be a waiver of the forfeiture till the expiration of the three months: Doe d. Morecraft v. Meaux, 4 B. & C. 606. Where a forfeiture by a tenant for years, in levying a fine, has not been taken advantage of by the reversioner, it cannot be taken advantage of, after the reversion has been conveyed away, so as to recover on the demises of the grantor and grantee of such reversion: Fenn d. Mathews v. Smarth, 12 East, 444.

BY ASSIGNEE OF REVERSION.

In this case, after proving the forfeiture, as in ejectment by the landlord, evidence must be given that the claimant is entitled to the reversion at the time the forfeiture was committed, and, if possible, of the mesne assignments from the original lessor; Adams, 278, 9. These mesne assignments, however, will be presumed, if the original lease be for a long time, and the possession of the assignee has continued for a considerable time: Earl v. Baxter, W. Bl. 1228; Adams, 279.

At common law, an assignee of the reversion could not maintain an ejectment upon a right of re-entry for condition broken; but this was remedied by the 32 H. S, c. 34. The statute, however, only empowers the assignee to bring an ejectment for a breach of such conditions only as are incident to the reversion, or for the benefit of the estate: Co. Lit. 215, b.; Sir T. Raym. 250. The statute extends to persons only who have the immediate reversion, or remainder in fee-tail, or for a less estate: 1 Saund. 322; 2 Saund. 252, b. A cestui-que use, and bargainee of the reversion, are within the act; but persons coming in by act of law are not: Co. Lit. 215, b.; Adams, 70. The assignee of the part of the reversion in all the premises demised, is within the act; but not the assignees of the reversion in part of the lands: ib. Copyhold lands are within the act, Carth. 205; but not gifts in tail: Co. Lit. 215, a.

BY MORTGAGEE.

IN ejectment by mortgagee against mortgagor, on a forfeiture of the mortgage, no notice to quit need be proved, Birch v. Wright, [*474] 1 T. R. *378, Moss v. Gallimore, Doug. 279, 282; and, in an

action against the tenant of the mortgagor, no notice to quit requisite, except where the mortgagee has impliedly admitted him as his tenant: Keech v. Hall, Doug. 21; see, further, ante, 465. Where the mortgagor is in possession, the production of the mortgage-deeds will substantiate the mortgagee's title, because a party cannot set up a title inconsistent with his own deed, Doug. 21; but, if there be under-tenants of the mortgagor in the occupation of the premises, the mortga

gee must, in addition to the mortgage, also prove that they have paid rent to, or recognized the holding under, the mortgagor: S. N. P. 748; Birch v. Wright, 1 T. R. 378; Thunder d. Weaver v. Belcher, 3 East, 449. If the third person holds by a title adverse to that of the mortgagor, evidence of the mortgagor's title will be required.

BY LORD OF MANOR.

In ejectment by the lord of a manor for a forfeiture, it must appear that the forfeiture arose when he was lord, and that the tenant committing it was his tenant on the rolls of the manor, Roe d. Jefferys v. Hicks, 2 Wils. 13, B. N. P. 108, Doe d. Tarrant v. Hellier, 3 T. R. 173; and the forfeiture must also appear to have been committed within twenty years; for, it is said, "the lord cannot enter for a forfeiture at the distance of more than twenty years," per Buller, J., ib. If he bring ejectment for mines upon his manor, he must prove possession to have been in him within twenty years, "because they are a distinct possession from the manor, and may be of different inheritances," per curiam, Rich d. Cullen v. Johnson, 2 Str. 1142; " and a verdict, in trover, for lead dug out of the mine, is no evidence of possession, for trover may be brought on property without possession:" B. N. P. 102. Where a tenant incloses part of a waste for twelve or thirteen years, and is seen by the steward of the lord of the manor, from time to time, without objection made, it may be presumed to have been with the license of the lord, and no action will lie by the lord without previous notice to throw it up: Doe d. Foley v. Wilson, 11 East, 56. If land be seized absolutely by the lord, as forfeited pro defectu tenentis, a special custom must be proved, entitling him to do so, but no custom need be proved if he only seize quousque; and, if an absolute seizure be made, and the custom not proved, such seizure cannot afterwards be set up as a seizure quousque; the proclamations must also be proved to have been made: Doe d. Tarrant v. Hellier, 3 T. R. 162; Lord Salisbury's case, 1 Lev. 63; 1 Keb. 287, s. c.

Evidence for Defendant.

Much of the deft.'s necessary evidence may be collected from the foregoing, and will consist in rebutting the plt.'s evidence, by calling fresh witnesses or cross-examining plt.'s. The deft. need never show a better title in himself, or indeed in any other person; if he controvert, or show no title to exist in the plt. it will be sufficient, Tregonwell v. Strachan, 5 T. R. 110; Graham v. Peat, 1 East, 246; or deft. may show that plt. has only an equitable estate: Goodtitle v. Jones, 7 T. R. 49; Roe v. Read, 8 ib., 118, ante.

In an action by the heir at law, deft. may show the claimant's illegitimacy: 8 East, 193; Goodright d. Thompson v. Saul, 4 T. R. 356. Want of access, or presumptive evidence of it, or other circumstances tending to show the husband could not, in the course of nature, have been the father of his wife's child, are good evidence: 8 East, 206; 4 T. R. 356. The marriage under which claimant claims may be shown. to be void: 2 Phil. 235.

Where the lessor of the plt. claims as a devisee, deft. may show that

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