brought on a proviso of re-entry in case of breach of covenant, and a particular of the breaches has been given, the proof must be according to the terms of the particular. Doe v. Philips, 6 T. R. 597. If brought on a forfeiture incurred by underletting, it is sufficient, prima fucie, to prove a third person in possession of the premises, acting and appearing as the tenant, and the declarations of such person are said to be evidence. Doe v. Rickarby, 5 Esp. 4; sed vide Doe v. Paine, 1 Stark. 86. Forfeiture waived.] Where the lease is voidable, and not void, the defendant may show that the forfeiture has been waived. A lease for lives is voidable only, though the condition be that the lease shall be void." 1 Saund. 287, d (n). In a lease for years if the condition be, that the lease "shall be void," it is voidable only at the option of the lessor, Doe v. Banks, 4 B. and A. 401. Read v. Farr, 6 M. and S. 121; so if the condition be, that "the lessor shall re-enter," the term is only voidable. Pennant's case, 3 Rep. 64, a. Goodright v. Davids, Cowp. 804. And where the proviso was, 66 that if the rent should be in arrear for twenty-one days after demand made, or if any of the covenants should be broken, then the term thereby granted, or so much thereof as should be then unexpired, should cease, determine, and be wholly void; and it should be lawful to and for the landlord upon the demised premises wholly to re-enter, and the same to hold for his own use, and to expel the lessee," it was held that the lease was voidable only, and not void, and that the landlord was bound to re-enter in case of forfeiture. Arnsby v. Woodbradard, 6 B. and C. 519. Merely lying by and witnessing a forfeiture is not a waiver, Doe v. Allen, 3 Taunt. 78; but acceptance of rent accruing since the forfeiture, is a waiver; to constitute such waiver, the lessor must have notice of the forfeiture, which is a material and issuable fact. Goodright v. Davids, Cowp. 804. Rowe v. Harrison, 2 T. R. 430, 431. Pennant's case, 3 Rep. 64, b. So bringing an action of covenant for such rent is a waiver. Roe v. Minshull, B. N. P. 96; see S. C. Selw. N. P. 677. The lessor does not waive his right of re-entry by taking an insufficient distress for the rent, by the non-payment of which the lease became forfeited. Brewer v. Eaton, 3 Dougl. cited 6 T. R. 220. And where a lease contained a clause of re-entry in case the rent should be in arrear 21 days, and there should be no sufficient distress, Lord Ellenborough held that the landlord, having distrained within the 21 days, but continued in possession after, did not waive his right of re-entry. Doe v. Johnson, 1 Stark. 411. If the breach be a continuing one, as the using rooms in a manner prohibited by the lease, the acceptance of rent after such user is not a waiver of the for feiture incurred by the subsequent continuing user. Woodbridge, 9 B. and C.376. Doe v. Where a lease contained a general covenant to repair, and a covenant to repair upon three months' notice, Lord Ellenborough held that the landlord, by giving a notice "to repair forthwith," had not waived his right of re-entry for the breach of the general covenant. Roe v. Paine, 2 Campb. 520. But where a lease contained covenants to keep the premises in repair, and to repair within three months after notice, and a clause for re-entry for the breach of any covenant, and the premises being out of repair, the landlord gave a notice to repair within three months; it was held that this was a waiver of the forfeiture incurred by the breach of the general covenant to keep the premises in repair, and that the landlord could not bring ejectment until the expiration of the three months. Doe d. Morecraft v. Meux, 4 B. and C. 606. In Doe v. Payne the language of the notice was very different, the tenant was required to put the premises in repair forthwith; that did not preveut the landlord from bringing his ejectment at any time. Per Bayley, J., ibid. 609; see Doe v. Miller, 2 C. and P. 348. In some cases the acts of the lessor may prevent the accruing of a forfeiture, as in the following case of an ejectment on forfeiture for breach of covenant, in a lease wherein the lessee covenanted to insure in the joint names of himself and the lessor, and in two-thirds of the value of the premises demised. The lessee had insured in his own name only, and, as contended, to a less amount than two-thirds the value of the premises. Both parts of the lease remained in the possession of the lessor, and an abstract only had 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. The lessor of the plaintiff had previously insured the premises at the same sum as the defendant. 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. and M. 343. The tenant may prevent the forfeiture by tendering the rent. "The statute is beneficial to the tenant as well as the landlord. It relieves the latter from the necessity of making a demand with all the precision required at common law, and the tenant incurs no forfeiture until the declaration in eject. ment is served upon him; and if at that time he is ready to pay the rent, although he did not tender it when it was due, it gives him the same benefit as if he had tendered it at that times Per Holroyd, J. Doe v. Shawcross, 3 B. and C. 756. See Co. Litt, 202, a. By Heir-at-Law. Where the lessor of the plaintiff claims as heir-at-law, he must prove that the ancestor from whom he claims was actually seised of the lands, &c.; or if he claim as heir to a remainderman, that the ancestor from whom he claims was the person in whom the remainder first vested by purchase. Radcliffe's case, 3 Rep. 42, a. Watk. on desc. 120. 2. That he is heir to such ancestor, and where he claims as heir to one in remainder, that the remainder has vested in possession. Proof of seisin.] The seisin in fee may be proved by showing the ancestor in actual possession, or that he received rent from the person in possession, which is presumptive evidence of seisin in fee. Co. Litt. 15, a. B. N. P. 103. Jayne v. Price, 4 Taunt. 326, ante, p. 15. So proof of possession of the premises by the ancestor's lessee for years, is evidence of seisin, for the possession of tenant for years gives an actual seisin to the owner of the inheritance. Co. Litt. 243, a. Bushley v. Dixon, 3 B. and C. 298. So the possession of guardian in socage confers an actual seisin upon the infant. Doe v. Newman, 3 Wils. 516. Evidence of shooting and appointing a gamekeeper by the lord of a manor is not properly referable to a right of soil. Per Bayley, J., Tyrwhitt v. Wynne, 2 B. and A.560. The declarations of a deceased tenant that he held under a particular person are admissible to prove the seisin of that person. Uncle v. Watson, 4 Taunt. 16. Proof of descent.] The lessor of the plaintiff must prove that all the intermediate heirs between himself and the ancestor from whom he claims, are dead without issue. Richards v. Richards, 15 East, 294 (n). As to the presumption of the duration of life, vide ante, p. 18. If the lessor of the plaintiff claim as collateral heir, he must prove the descent of himself and the person last seised from a common ancestor, or at least from two brothers or sisters. Doe v. Lord, 2 W. Bl. 1100. Births, marriages, and deaths, may be proved by examined copies of entries in parish registers, and proof of the identity of the persons therein named, and of the parties in question. Ante, pp. 62, 114. The herald's books, ante, p. 113, declarations of deceased members of the family, ante, p. 20, descriptions in family bibles, memorandums by members of the family, recitals in family deeds, monumental inscriptions, inscriptions on rings, old pedigrees hung up in family mansions, and the like, are admissible to prove a pedigree. Ibid. In proving a marriage it is not necessary in the first instance to give evidence of the regular publication of the banns, or of the regularity of the license, for the presumptive proofs of marriage have not been taken away by the marriage act. Devereux v. Much Dew Church, 1 W. Bl. 367. And since that act a marriage may be proved by reputation as well as before, Reed v. Passer, Peake, 233; or by the presumption arising from cohabitation. B. N. P. 114. Even where the parents are alive, reputation is sufficient evidence of the marriage in ejectment by the son. Doe v. Fleming, 4 Bingh. 266. Either of the married parties, provided they be not interested, is competent to prove or disprove the marriage. Goodright v. Moss, Cowp. 593. As to Fleet marriages, see ante, p. 114. The declarations of a relative are not evidence when the relative himself can be produced, Pendrell v. Pendrell, 2 Str. 925; and declarations made after a suit commenced, or a controversy preparatory to one, cannot be admitted. Berkeley peerage case, 4 Campb. 401, ante, p. 20. Defence. Illegitimacy.] The defendant may prove the marriage void by a prior marriage, want of age, want of reason, or the nonobservance of the solemnities required by the marriage act. 2 Phill. Ev. 235. The marriage of a minor by license without the consent of the father is good, the 4 Geo. IV. c. 75, s. 16, being directory only. R. v. Inkab. of Birmingham, 8 B. and C. 29. But by s. 22, if any person shall knowingly and wilfully intermarry in any other place than a church, or such public chapel wherein banns may be lawfully published, unless by special license, or shall knowingly and wilfully intermarry without due publication of banns or license from a person or persons having authority to grant the same first had and obtained, or shall knowingly and wilfully consent to or acquiesce in the solemnization of such marriage by any person not being in holy orders, the marriages of such persons shall be null and void. To prove the illegitimacy of a child, want of access, or any other circumstances which tend to show that the husband could not, in the course of nature, have been the father of his wife's child, are good evidence. R. v. Luffe, ·8 East, 206; and presumptive evidence of non-access is admissible. Goodright v. Saul, 4 T. R. 356. Whenever a husband and wife are proved to have been together at a time when, in the order of nature, the husband might have been the father of the child if sexual intercourse did then take place, such sexual intercourse is primâ facie to be presumed, and it is incumbent on those who dispute the legitimacy of the child to disprove the fact of sexual intercourse having taken place by 'evidence of circumstances which afford an irresistible presumption that it could not have taken place, and not by mere evidence of circumstances which may afford a balance of pro babilities against the fact, that sexual intercourse did take place. Per Sir J. Leach, M. R. Head v. Head, 1 Sim. and Stu. 152, S. C. affirmed, 1 Turner, 139, see the Banbury_peerage case, 1 Sim. and Stu. 153, Morris v. Davies, 3 C. and P. 218, 427. In case of a separation à mensa et thoro, the children born during that period will be bastards unless access be proved. St. George and St. Margaret, 1 Salk. 123. A wife will not be permitted to prove the non-access of her husband, but she is competent to prove the fact of her connexion with the person whom she charges as being the real father of her child. R. v. Luffe, 8 East, 203. By Devisee of Freehold Interest. Where the lessor claims a freehold interest by devise, he must prove: 1. The seisin of the testator, vide ante, p. 343. 2. The regular execution of the will, vide ante, p. 72; and in case there are any estates limited by the will prior to the devise to himself, the determination of such estates. 3. The death of the testator. Where the devisee of an estate refused to take it, saying she was entitled as heir-at-law, and would not accept any benefit by the will of the devisor, it was held that this was not such a disclaimer as prevented her from afterwards bringing ejectment, and relying on her title as devisee. Doe v. Smyth, 6 B. and C. 112. Defence. The defendant may impeach the will, either by showing that it is a forgery, or by proving the incapacity of the testator to make a will. This incapacity may arise either from coverture or infancy. Stat. 34, 35, H. VIII. c. 5, s. 14; or from idiotcy, or non sane memory. Ibid, the Marquis of Winch. case, 6 Rep. 23, a. So it may be shown that the will was made under duress, or obtained by fraud. Doe v.. Allen, 8 T. R. 147. Will void from idiotcy, or non sane memory.] It is not enough that the testator, when he makes his will, should have sufficient memory to answer familiar and usual questions, but he ought to have a disposing memory, so as to be able to make a disposition of his lands with understanding and reason. Marquis of Winch. case, 6 Rep. 23, a. If the defendant succeed in proving that the testator has been affected by habitual derangement, then it is for the other party who claims under the will, to show sanity and competency, at the period when the act was done. Atty-Gen. v. Parnther, 3 Br. C. C. 441, 1 Phillim. 100. Revocation of will by subsequent will.] The defendant may |