considered to extend beyond a mere tenancy from year to year, and to operate as a forfeiture of a long term of years under a lease by deed. See Doe v. Flynn, 1 C. M. & R. 137. But this doctrine can no longer be supported; for in Doe v. Wells, 10 A. & E. 427., it was held that a definite term of years was not forfeited by an oral refusal to pay rent on the ground that the land belonged to the tenant, and not to his lessor; and the court there considered a disclaimer by a yearly tenant to be rather evidence of a determination of the will which limits the duration of the estate, than a forfeiture of the estate.

The disclaimer must be before the date of the demise in the declaration; and an admission of a disclaimer, made after it, must, in order to have the effect of determining a tenancy, amount to an admission that such disclaimer took place before the day of the demise; Doe d. Lewis v. Cawdor, 1 C. M. & R. 398.; Doe v. Litherland, A. & E. 784.; and the admission of the tenant in possession, is evidence against one who defends as his landlord. Doe v. Litherland, ib.

Proof of forfeiture of the lease.] Where the lessor proceeds on the forfeiture of the lease, he must prove the demise and the forfeiture incurred. The general rule is that a clause of re-entry is to be construed strictly. Per Lord Tenterden C. J. Doe v. Marchetti, 1 B. & Ad. 720. Where the forfeiture is for the nonperformance of a covenant, the lessor of the plaintiff must give some evidence of the nonperformance, and it will not in the first instance lie upon the defendant to prove a performance. Doe v. Robson, 2 C. & P. 245. The right of re-entry will appear on proof of the lease. In an agreement of demise it was 66 stipulated and conditioned that the tenant should not assign," &c. ; this was held to be a condition for the breach of which the lessor might maintain an ejectment. Doe v. Watt, 8 B. & C. 308. Where the lessee underlet, and in the underlease there was a proviso that, in case of a breach of covenant, the lessor and lessee might enter, it was held that the lessee alone might take advantage of this proviso. Doe v. White, 4 Bing. 276. But where a mortgagor and mortgagee joined in a lease reserving a power of re-entry to them, or either of them, for a breach of covenant, it was held that a joint demise in the declaration was improper, because the estate revested in the mortgagee only. Doe v. Adams, 2 C. & J. 232.

If the proceeding be at common law on a condition of re-entry for nonpayment of rent, there must be a demand of the precise rent due, on the exact day on which it became due, at the proper place of payment, at a convenient hour before sunset. 1 Saund. 287. (n); Doe v. Paul, 3 C. & P. 613. And these formalities must still be observed where there is a sufficient distress on the premises, unless the lease stipulates that they shall not be necessary. Doe v. Masters, 2 B. & C. 490. But by statute 4 Geo. 2. c. 28., where half a year's rent is in arrear, the lessor may, without any formal demand or re-entry, serve a declaration in ejectment; or in case it cannot be served, or no tenant be in possession, affix the same upon the door of the messuage, or if the ejectment be not for a messuage, upon some notorious place of the lands, &c.; and such affixing shall be deemed legal service thereof; which service or affixing shall stand in the place of a demand or re-entry; and in case of judgment against the casual ejector, or nonsuit for not confessing lease, entry, and ouster, it shall be made appear to the court

where the said suit is depending by affidavit, or be proved upon the trial if the defendant appears, that half a year's rent was due before the declaration was served, and that no sufficient distress was to be found upon the demised premises countervailing the arrears then due, and that the lessor had power to re-enter, in such case the lessor shall recover judgment as if the rent in arrear had been legally demanded, and a re-entry made.

Where a lease contained a proviso for re-entry in case the rent was in arrear twenty-one days after the day on which it was due, "being lawfully demanded," it was held to be within the statute, and that it was unnecessary to prove an actual demand. Doe v. Alexander, 2 M. & S. 525.; accord. Doe v. Wilson, 5 B. & A. 363.

Under this statute the landlord must be prepared with evidence of the service of the declaration in ejectment, or of the affixing of the same to the door of the messuage, &c. ; that half a year's rent was due ; and that no sufficient distress was found on the premises. It is no ground of nonsuit that the declaration was served on a day subsequent to the day on which the demise was laid, that being after the rent became due. Doe v. Shawcross, 3 B. & C. 752. It is sufficient, primâ facie, to prove that there was no sufficient distress on the premises on a certain day between the day when the rent became due and the service of the declaration. Doe v. Fuchau, 15 East, 286. It must appear that every part of the premises has been searched; Doe v. King, cited 2 B. & B. 514., S. C. Forrest, 19.; unless the tenant has prevented the landlord from having access to the premises, as by locking the doors; for a distress which cannot be made without a trespass is no available distress within the act. Per Lord Tenterden C. J., Doe v. Dyson, M. & M. 77. A variance between the amount of rent proved to be due, and that demanded in the lessor of the plaintiff's particular, is immaterial. Tenny v. Moody, 3 Bing. 3.

Where the action is brought on a proviso of re-entry in case of breach of covenant, the court will compel delivery of a particular of the covenants and breaches intended to be relied on at the trial, and the proof must be according to the terms of the particular. Doe v. Phillips, 6 T. R. 597. And where the particular relies on noncultivation, it is not enough to prove an improper course of husbandry. Doe v. Broad, 2 M. & G. 523. If brought on a forfeiture incurred by assigning or underletting, it is sufficient primâ facie 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. Rickarby, 5 Esp. 4.; Doe v. Williams, 6 B. & C. 41. But Lord Ellenborough was of opinion that such proof was insufficient, as non constat that the third person was not a mere intruder. Doe v. Payne, 1 Stark. 86.; see antè, p. 396. 398.

Doe v.

Where a rent-charge is granted, with power to the grantee in case the rent shall be in arrear for a certain time to enter and enjoy the lands charged, and to receive the rents &c. for his own use until satisfaction of the arrears, the grantee may, upon the rent becoming in arrear, maintain ejectment against the terretenant without proof of a previous demand of the rent. Doe v. Horsley, 1 A. & E. 766. It is doubtful whether one of several parceners can alone recover in ejectment on a forfeiture of a lease made by their ancestor. Doe v. Lewis, 5 A. &

E. 277.

Forfeiture waived.] Where the lease is voidable at election, and not void, the defendant may shew that the forfeiture has been waived. A lease for lives is voidable only, by entry, though the condition be that the lease "shall be void." 1 Saund. 287 d. (n.) So where a lease for years is conditioned to be void for the benefit of one party, it is in the election of that party alone to treat it as void; therefore where, in a lease for years, the condition is that, upon the breach of some covenant by the lessee, the lease" shall be void," it is voidable only at the option of the lessor; Doe v. Bancks, 4 B. & A. 401.; Rede v. Farr, 6 M. & S. 121. So if the condition be that "the lessor shall re-enter," a term of years is only voidable. Pennant's case, 3 Rep. 64. a.; Doe v. Davids, Cowp. 804. And where the proviso was, "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, 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 if he wanted to avail himself of a forfeiture. Arnsby v. Woodward, 6 B. & C. 519. So a similar proviso in a licence for a term of twenty-one years to enter upon A.'s lands to search and dig, was held to make it voidable only, and that some act of A. to shew his election to enforce the forfeiture was necessary to put an end to the licence. Roberts v. Davey, 4 B. &Ad. 664. 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, if the lessor had notice of the forfeiture; which notice is a material and issuable fact. Doe v. Davids, Cowp. 804. ; Roe v. Harrison, 2 T. R. 430, 431.; Pennant's case, 3 Rep. 64. b. So bringing an action for such rent is a waiver. Roe v. Minshul, B. N. P. 96.; S. C. Selw. N. P. 677. But where the proviso avoided the lease by neglect of repairs three months after notice to do them, and notice was given accordingly on 1st January, receipt of rent due on 25th March was held no waiver. Doe v. Brindley, 4 B. & Ad. 84.,86. 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; for the statute gives the right to eject only if there be no sufficient distress; but it was otherwise at common law. Doe v. Eaton, 3 Doug. 231., cited 6 T. R. 220. And where a lease contained a clause of re-entry in case the rent should be in arrear twenty-one days and there should be no sufficient distress, Lord Ellenborough held that the landlord, having distrained within the twenty-one days and continued in possession after, did not waive his right of re-entry. Doe v. Johnson, 1 Stark. 411. In the case of a proviso to re-enter after three months' notice, an agreement to allow the tenant more than three months' time to repair is a suspension, and not a waiver, of the forfeiture. Doe v. Brindley, suprà. If the breach be a continuing one, as the using of rooms in a manner prohibited by the lease, the acceptance of rent after such user is not a waiver of the forfeiture incurred by the subsequent user. Doe v. Woodbridge, 9 B. & C. 376. Forfeiture by insolvency is waived by accepting rent from the insolvent after his discharge; and the non-payment of a scheduled debt due to the lessor is not a continuing insolvency. Doe v. Rees, 4 New Ca. 384.

Where a lease contained a general covenant to repair, and also 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 Camp. 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 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, and that the landlord could not bring ejectment until the expiration of the three months. Doe v. Meux, 4 B. & C. 606. "In Roe v. Paine (supra) the language of the notice was very different; the tenant was required to put the premises in repair forthwith; that did not prevent the landlord from bringing his ejectment at any time;" Per Bayley J., ibid. 609.; and see Doe v. Miller, 2 C. & P. 348. So where, besides the general covenant to repair, there was a proviso that if the lessee did not repair within two months after notice, the lessor might enter and do the repairs himself at the tenant's expence, it was held that the lessor could not proceed to eject on the general covenant, after giving the tenant notice to repair under the above proviso. Doe v. Lewis, 5 A. & E. 277.

In one case Lord Tenterden C. J. held that the acts of the landlord, though not amounting to a waiver or release, might so mislead the tenant as to prevent the accruing of a forfeiture. In an ejectment on the forfeiture of 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, it appeared that the lessee had insured in his own name only, and, as contended, to a less amount than twothirds of the value. 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. 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 required of him in insuring in his own name, and to the amount insured, he could not recover for a forfeiture. Doe v. Rowe, R. & M. 343. But this decision, however equitable, seems to be unsatisfactory in principle.

Where the forfeiture is for non-payment of rent, the tenant,_by stat. 4 Geo. 2. c. 28., may prevent it 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 ejectment 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 time." Per Holroyd J., Doe v. Shawcross, 3 B. & C. 756.

When the proceeding is upon 11 Geo. 4. & 1 W. 4. c. 70. s. 36. (which authorises service upon tenants within ten days after right of entry accrued) it is no objection at Nisi Prius that the declaration was not served within the ten days. Doe v. Brindley, 4 B. & Ad. 84.

By Heir-at-Law.

Where the lessor of the plaintiff claims as heir-at-law, he must, at common law, prove (1.) that the ancestor from whom he claims was actually seised of the land; or, if he claims as heir to a remainderman, that the ancestor from whom he claims was the person in whom the remainder first vested by purchase; Radcliff's case, 3 Rep. 42. a., Watk. on Desc. 120.; (2.) that he is heir to such ancestor. The necessity of this proof is founded on the rule of law, "seisina facit stipitem;" but the late act 3 and 4 Wm. 4., c. 106., appears to have made a change in the law in this respect.

By sect. 2. of that act, "in every case descent shall be traced from the purchaser; and to the intent that the pedigree may never be carried further back than the circumstance of the case and nature of the title require, the person last entitled to the land shall, for the purposes of that act, be considered to have been the purchaser thereof, unless it shall be proved that he inherited the same, in which case the person from whom he inherited shall be considered to have been the purchaser, unless it shall be proved that he inherited; 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."

By sect. 1. of the same act its provisions are made to extend to all hereditaments, corporeal or incorporeal, freehold, copyhold, or customary, and to any possibility, right, or title of entry or action, and to any other interest capable of being inherited, whether in possession, reversion, remainder, or contingency; and the word " purchaser" is explained to mean the person who last acquired the land, otherwise than by descent, &c.; and the " person last entitled" extends to the last who had a right to the land, whether he did or did not obtain the possession or receipt of the rents and profit.

By sect. 4., when any one shall acquire land by purchase under a limitation to the heir or heirs of the body of any of his ancestors, in any assurance executed after the 31st December, 1833, or in any will of a testator dying after that day, the land shall descend and the descent be traced as if his ancestor had been the purchaser.

By sect. 10. an heir may trace his descent through an attainted person who died before the descent took place, unless the land escheated in consequence of the attainder before 1st January, 1834.

The act does not extend to any descent before 1st of January, 1834. Sect. 11.

As the effect of the statute has not yet been fully developed by the decisions of the courts, and the old law must for some time continue to be a subject of inquiry in actions of ejectment, the cases on the latter head have been retained.

Proof of scisin.] 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, 5 Taunt. 326., antè, p. 22.; and the declarations of a deceased tenant that he held under A. B. are admissible to prove the seisin of A. B. though offered in evidence against a stranger by a party claiming under A. B. Peaceable v. Watson,