England and Wales High Court (King's Bench Division) Decisions

A tenancy from year to year may be determined by either party giving notice to quit half a year previous to the expiration of any year of the tenancy, unless any other period be fixed by agreement or local custom; which half year must consist of 182 days, except where the rent is payable on the usual quarterly feast days, when notice on one feast day to quit on the next but one, as, for instance, on the 29th of September to quit on the 25th of March, is sufficient. 4 Esp. 199,Doe v Green. [6 Bing. 574,Doe v Roe. 4 M. & P. 391, S. C.] The, notice must be to quit at the end of some current year of the tenancy, computed from the original time of entry; 1 T. R. 159,Right v Darby; although the rent be payable quarterly; 1 Esp. 267,Shirley v Newman; or a quarter's notice be agreed on. 1 Taunt. 555,Doe v Donovan. [1 Q. B. 806,Doe v Dobell. 1 G. & Dav. 218, S.C If the tenant enters in the middle of a quarter, and he afterwards pays rent for that half quarter, and continues then to pay from the commencement of a succeeding quarter, he is not a tenant from the time of his coming in, but from the succeeding quarter-day. 6 Esp. 10,Doe v Johnson. 3 C. & P. 275,Doe v Stapleton. But seeDoe v, Selwyn, Adams on Ejectment, 129.] Where the tenant enters on different parts of the premises at different times, the notice should be given with reference to the substantial and principal part of them, and will be good for all. 2 Black. Rep. 1224,Doe v Snowdon. 6 East, 120,Doe v S pence. 7 East, 551,Doe v Watkins. What is the substantial part, is a question for the jury. 11 East, 498,Doe v Howard. [7 M.&W.139,Doe v. Hughes.] If the tenant hold over by consent after the expiration of a lease, he becomes tenant from year to year [see ante, p. 276]; and notice to quit must be given with reference to the original time of entry under the lease; 5 Esp. 173,Doe v Samuel; even where the lease was determined by the death of the lessor, tenant for life, in the middle of a year. 1 H. Black. 97,Roe v. Ward. And though a parol lease for seven years be void by the, Statute of Frauds, yet a tenancy from year to year arises upon the terms agreed on, so far as they are applicable to such a tenancy [seeante, p. 276]; and if they specify the time of quitting, the notice must be given accordingly. 5 T. R. 471,Doe v Bell. But it was held, that an action for use and occupation would not lie against one who had once been tenant from year to year, but who had not, within the last six years, occupied the premises, paid rent, or done any act from which a tenancy could be implied, though the tenancy had not been determined by a notice to quit. 1 B. & A. 625,Leigh v Thornton. [Where a tenant entered, under an agreement for a lease for seven years, which was never executed, it was held, that he was not entitled to notice to quit at the end of the seven years. 4 Bing. 446,Doe v. Stratton. 1 Moo. & P. 183, S.C See also 3 Mann. & Gr. 498,Berrey v Lindley. 4 Scott, N. R. 61, S.Caccord.] The Courts listen with reluctance to objections to the form of notice. 14 East, 245,Doe v Archer. Hence, "I desire you to quit," etc. or "I shall insist on double rent," was held a good notice. Doug. 175,Doe v Jackson. [2 Q B. 143, Doe v Goldwin,accord.] So notice at Michaelmas, 1795, to quit "at Lady-Day, which will be in the year 1795," was held good. 7 T. R. 63,Doe v Kightly. [4 D. & R. 248,Doe v Culliford. 5 A. & E. 350,Doe v Smith. 6 Nev. & M. 829, S.C So a mistake in the notice in describing the farm as being in the adjoining parish to that in which it really lies, is not material, if the tenant was not thereby misled. 12 A. & E. 743,Doe v Wilkinson. 4 P. & Dav. 323, S. C.] So on an Old Michaelmas tenancy notice to quit at Michaelmas was held good, evidence being given that the tenancy commenced at Old Michaelmas. 2 Camp. 256,Doe v Vince. 4 B. & A. 588, Doe v Benson, S. P. [9 C. & P. 467,Doe, v. Perrin. But a lease by deed to hold from the Feast of St. Michael, must be taken to mean New Michaelmas; and extrinsic evidence is not admissible to shew that it means a holding from Old Michaelmas. 11 East, 312,Doe v Lea. So if a defendant avows that there it was payable at Martinmas, to wit, on November 23, he must be taken to mean New Martinmas, i.e. November 11th, and not Old Martinmas, notwithstanding the latter falls on the day laid under the videlicel, i.e. November 23. 8 Bing. 235,Smith v Walton. 1 M. & P. 380, S. C.] Notice to quit "at the expiration of the current year of your tenancy, which shall expire next after one half-year from the date hereof," is sufficient, though no day be mentioned; 2 Esp. 589,Doe v Butler; [6 Bing. 362,Doe v Scott. 4 Moo. & P. 20, S. C.; and is a sufficient demand of possession within stat. 4 Geo. 2, c. 28, s. 1, to render the tenant liable for holding over after the determination of the notice. 6 M. & W. 393,Hirst v Horn] and is perhaps the safest form. Neither does the landlord lose much by adopting it, since the insertion of a day will not make the notice prima facie evidence of a holding from that day; 2 Camp. 258 n.Ibid. 388, Doe v Calvert, overrulingDoe v Harris. Dorchester Sum. Ass. 1784, before Eyre B. cited in 1 T. R. 161; unless the service be personal on the tenant, and be make no objection. 13 East, 405,Doe v Forster. 2 Camp. 647,Thomas v Thomas. 2 Camp. 459,Doe v Woombwell. 2 Taunt. 109, Doe v Liecester, which seems to overrule 4 T. R. 361,Oakapple v Copous. [But it may be observed, that, inOakapple v Copous, it appeared at the trial that he held from a different day, and therefore the prima facie evidence was rebutted. A notice to quit given by the tenant must, in order to be good, be such as on a reasonable construction of it, denotes an intention to give up the premises at the lawful time. 4 Mees. & W. 198,Goode v Howells.] If the tenant; on application by his landlord, state his tenancy to have commenced on a particular day, he is bound by such statement; 2 Esp. 635,Doe v Lambly; and a receipt for rent, stating it to be a year's rent up to a certain day, is prima facie evidence of a holding from that day. 3 Esp. 173,Doe v Samuel. [But where the tenant gives notice to quit at the end of the current year, less than six months-before such end, such notice is ineffectual to determine the tenancy. Seeante, p. 236, note(y).] A parol notice to quit is sufficient; 2 Camp. 96,Roe v Pierce; but it is more advisable to give a written one. 5 Esp. 197,Doe v Crick. Service of the notice by leaving it with a servant at the tenant's dwelling-house, not on the premises, has been held sufficient 4 T. R. 464,Jones v Marsh: [although the tenant be not informed of it till within half a year of its expiration, M. & Malk. 10,Doe v Dunbar. Where A. has been, tenant, and, on his leaving, B. takes possession, notice to quit given to B. is goodprima facie; for it will be presumed that be is the assignee of A. 6 B. & C. 41,Doe, v Williams. 19 D. & R. 30, S.C 6 M. & S. 110,Doe v Murless. See also 2 A. & E. 329,Roe v Street. 4 Nev. & M. 42, S. C.] The notice to quit required by 4 Geo. 2, c. 28, s. 1, to entitle the landlord to double value; must be in writing; but the notice to quit by the tenant, which, entitles the landlord to double rent, if he does not quit accordingly, under 11 Geo. 2, c. 19, s. 18, may be by parol. 3 Burr. 1603,Timmins v Bowlinson. The notice may be given by a receiver appointed by the Court of Chanbery. 5 Burr. 2694,Wilkinson v Colley. 12 East, 57,Doe v Read. An infant must give notice as well as an adult. 2 T. R. 159,Maddon v White. A notice signed by two out of three executors and trustees has been holden insufficient, although it was expressed, to be given on behalf of them all, and the third subsequently assented. 5 East, 491,Right v Cuthell. But where four joint-tenants demise jointly, such of them as give notice to quit, may recover their respective shares in ejectment on their several demises. 3 Taunt. 210,Doe v. Chaplin. And if the notice be signed by a stranger professing to be an agent for all, their subsequent recognition of his authority will be sufficient; 3 B. & A. 689,Goodtitle v Woodward; the distinction between this case and Dight v Cuthell being, that the tenant had in this case such a notice as he could act upon, whereas in the other case the notice was deficient on the face of it. [It has been since held, that if the agent had not authority to give the notice at the time when it was given, -or at least when the half-year mentioned in it began to run, so that the tenant could not then have acted upon it, no subsequent adoption or recognition will make it valid. 10 B. & C. 626,Doe v Walters. 5 Mann. & R. 357, S.C 2 Q. B. 143,Doe v Goldwin. 1 G. & Dav. 463, S.C And as toRight v Cuthell, it has been considered that the true ground of the decision of that case was, that there the particular mode of determining the tenancy prescribed by the terms of the lease, required the concurrence of all the joint-tenants. But it is now established that, generally speaking, a notice to quit by one only of several joint-tenants puts an end to the tenancy as to the whole. 1 B & Ad. 135,Doe v Summersett. 7 Mees. & W. 139,Doe v Hughes. 1 Carr. & M. 280,Alford v Vickery. A mere receiver of rents, as such, has no authority to determine a tenancy by a notice to quit. 10 B. & C. 633, per Parke J. But an agent to receive rent, and to let, has. 2 M. & Rob. 56;Doe v Mizem, coram Patteson J. (See 3 Bing. N. C. 677,Doe v Robinson. 4 Scott, 396, S. C.) As to notice to quit by a mortgagor, who has mortgaged since the tenancy began, see 2 Q. B. 143. 1 G. & Dav. 64l.] Acceptance of rent due since the expiration of the notice is a waiver of it; 6 T. R. 219,Goodright v Cordwent; if the money reach the lessor's hands; 2 Camp. 387,Doe v Calvert; and be received as rent, which is a question for the jury. Cowp. 243,Doe v Batten. So is a distress for such rent. 1 H. Bl. 311,Zouch v Willingall. But after verdict in ejectment against a tenant for not quitting pursuant to notice, a subsequent distress by the landlord for rent due after the verdict, does not waive the notice to quit; nor is it any ground for setting aside the verdict, or staving execution. 8 Taud. 538,Doe v Darby. So a subsequent notice is a waiver; 16 East, 53,Doe v Palmer; unless it expressly save the first; 2 East, 237,Williams v Humphreys; or be given for greater caution, after ejectment brought for part of the premises, and such ejectment be persisted in; S. C.; or be merely a notice that double value will be required. 1 T. R. 53,Messenger v Armstrong. 3 Camp. 117,Doe v Steel. Nor is a promise not to turn the tenant out till the estate is sold a waiver of a prior notice to quit. 10 East, 13,Whitacre v Symons. [Where the tenant gives the notice to quit, and remains in possession after the time limited by the notice, this does not in itself amount to a waiver of it; but the jury must say, whether, under all the circumstances, his acts shewed an intention of continuing tenant or not. 4 Ad. & E. 832,Jones v Shears. 6 Nev. & M. 428, S. C.] By analogy to the notice to quit given in a holding of land, it is held that notice must, be given to determine a composition for tithes: and in general it must be half a year's notice, ending at the expiration of a year, unless any longer notice be necessary to enable the tenant to cultivate the land in the manner most beneficial to himself, according as he is to pay a composition or in kind. 1 Bos, & Pull. 465.Wyburd v Tuck, citing,Hewitt v Adams. Dom. Proc. 1782. 12 East, 83,Fell v Wilson: [4 M. & W. 198,Goode v Howell.] If the occupier disclaim any liability to pay tithes, at all, and deny the parson's title, this dispenses with the necessity of a notice to determine the composition; 1 Brod. & Bing. 4,Bower v Major. 3 B. Moore, 216, S. C.; in the same manner as an express disclaimer of holding under the landlord dispenses with a notice to quit land. Bull. N. P. 96; and see Peake's N. P. C. 197,Doe v Pasquali. [See ininfra.] But the analogy does not hold in the case of a change of parties; for by the parson's death, or avoidance of the benefice, or by achange of the occupier, the composition is ipso facto determined. 10 East, 269, Williams v Powell. If, however, the new parson receive the composition, he must account to the executors of the deceased for their share, according to the portion of the year which had elapsed at the time of the death of the late parson, 2 Ves. & Beames, 331, Aynsley v Wordsworth, overruling 10 East, 267, Williams v Powell, in which the Court of King's Bench had held, that the deceased's share should be calculated according to the value of the tithes which had become severable and payable during the portion of the year which elapsed before his death. [See stat. 4 W. 4, c. 22, post, note (17). As to what shall amount as a disclaimer, so as to supersede the necessity of a notice to quit, it is not necessary that the tenant should have attorned to some other person, or done any act disclaiming to hold as tenant to the landlord. But in order to make a verbal or written disclaimer sufficient, it must amount to a direct repudiation of the relation of landlord and tenant; or to a distinct claim to hold possession of the estate upon a ground wholly inconsistent with the existence of that relation, which, by necessary implication is a repudiation of it; 1 M. & W. 695,Doe v Stanion. 1 Mann. & Gr. 135,Doe v Cooper. 1 Scott, N. R. 36, S. C.; and it must be before the date of the day of the demise in the declaration in ejectment; I Cr. M. & R. 398,Doe v Lord Cawdor; and an admission made after the day of the demise, of a disclaimer, will be insufficient unless it amounts to an admission that such disclaimer took place before the day of demise, ibid. 10 B. & C. 816, Doe v Grubb, 5 Mann. & R. 666, S.C. A mere disclaimer by words operates only by way of dispensation with a notice to quit, and not by way of forfeiture; and therefore cannot work a determination of a lease for a definite term of years. 10 A. & E. 427,Doe v Wells. 2 Perr. & D. 396, S.C. Where, in ejectment, the tenants in possession do not defend the action and suffer judgment by default, but a party defends as landlord, it is no answer to the action that they have had no notice to quit: 5 Bing, 327,Doe v Creed. 2 Moo. & P. 648, S. C.:secus, where other persons not defending as landlords are also defendants. 3 Mees. & W. 333,Doe v Horn. As to whether any and what notice to quit is necessary in the case of a weekly or monthly tenancy, see 7 C. & P, 56,Huffell v Armitstead.]

(b) The general rule is, "that wherever an action is founded on a deed, the deed must be declared on. The only case excepted from the general rule is that of debt for rent, in which the deed need not be declared on. That exception, however, seems to have proceeded on the ground that, by the demise, an interest has passed in the land." Per Mansfield C.J 1 N. R. 109,Atty v Parish. In other words, that the action is founded on the privity of estate and not ofcontract; and if so, it is extraordinary that the action should not be local, which it is not. Seeante, 241, n. (6) and(f).

(c) [But a plea of nil habuit in tenementis is bad in an action for use and occupation, whether in assumpsit or in debt. 1 Bing. N. C. 15,Curtis v Spitty. 1 Scott, 737, S. C.]

(e) These statutes enabled tenants in fee-simple to devise the whole of their lands held in socage, and two-thirds of their lands held in chivalry; and the stat. 12 Car. 2, c. 24, having turned all tenures in chivalry into socage, all lands are now devisable; but these statutes do not apply to copyholds, which are devisable according to the custom of each particular manor, and at common law must have been surrendered to the use of the devisor's will, by the devisor himself, and then the will operated as an appointment of the use; but if the devisor had neglected to surrender to the use of his will, the devise was void, although a Court of Equity would, in some instances, have supplied the defect; and now, by stat. 55 Geo. 3, c. 192, a devise of copyhold lands, warranted by the custom of the manor is good without a surrender. [And it was held that copyholds passed under general words in a will made since that statute although there had been no surrender to the use of the will: 7 Bing, 275,Doe v Ludlam. 5 Moo. & P. 48, S.C. 2 Cr. M. & R. 503, Doe v Llewellinsecus, where the will was made before the statute. 5 B. & Ad. 695,Doe v Bird. 2 Nev. & M. 679. A devise by the heir at law is good under this statute, without his having been admitted, or paid the fine due to the lord on the descent 3 B. & Ad. 664,Right v Banks. 5 A. & E. 321,Doe v Wilson. 6 Nev. & M. 809, S. C.] And it need not be in writing or attested by three witnesses, as copyholds and customary freeholds are held, not to be within the 5th section of the Statute of Frauds. 7 East, 299,Doe v Danvers. r 4 B. & Ad. 56,Doe v Hickman. 1 Nev. & M. 780, S.C. 8 A. & E. 1,Doe v Harris. 2 Nev. & P. 615, S.C. By stat. 1 Vict c. 26 (which, however, does not extend to any will made before Jan 1, 1838), copyholds are devisable by a will executed in manner required by that Act.]

(f) Seeante, 211, n. (l). By the 4th section of the Statute of Frauds, it is enacted, that no action shall be brought upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised." It has been held in several cases, that a sale of growing crops is a sale of an interest in land within this section. 2 Bos. & Pull. 452,Waddington v Bristow. 6 East, 602,Crosby v Wadsworth. 2 Taunt. 38,Emmerson v Heelis; but it is otherwise where the crops have arrived at maturity at the time of sale, or are to be taken away immediately. 11 East, 363,Parker v Staniland. 2 M. & S. 205,Warwick v Bruce. The principle of these decisions appears to be this -that wherever at the time of the contract it is contemplated that the purchaser should derive a benefit from the further growth of the thing sold, from further vegetation, and from the nutriment afforded by the land, the contract is to be considered as for an interest in land; but where the process of vegetation is over, or the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold, and the contract is forgoods. [This doctrine has been materially qualified by later decisions, and it appears to be now settled that, with respect to emblements or fructus industriales (i.e. the corn and other growth of the earth which are produced, not spontaneously, but by labour and industry), a contract for the sale of them while growing, whether they are in a state of maturity, or whether they have still to derive nutriment from the land in order to bring them to that state, is not a contract for the sale of any interest in land, but merely for the sale ofgoods. 5 B. & C. 829,Evans v Roberts. 8 D. & R. 611, S.C. 4 M. & W. 343,Sainsbury v Matthews. And it will make no difference whether they are to be reaped or dug up by the buyer or by the seller. 10 A. & E. 759. 2, Perr. & D. 594. The true question is, whether, in order to effectuate the intention of the parties, it be necessary to give the buyer an interest in the land, or whether an easement of the right to enter the land, for the purpose of harvesting and carrying them away, is all that was intended to be granted to the buyer, ibid. But with respect to grass, which, as being the natural produce of the land, is said to be not distinguishable from the land itself, in legal contemplation, until actual severance, the decision of Crosby v Wadsworth appears to be still adhered to, viz. that the purchaser of a crop of mowing grass unripe, and which he is to cut, takes an exclusive interest in the land before severance; and, therefore, the sale is a sale of an interest in land within the statute, ibid. 2 Mees. & W. 248,Carrington v Roots. So it has been held that the sale of growing underwood, to be cut by the purchaser, confers an interest in land within the statute. I Y. &. Jerv. 396,Scorell v Boxall. The same has been held as to an agreement for the sale of growing fruit. 9 M. & W. 501,Rodwell v Phillips. But where the owner of trees growing on his land agrees with another, while they are standing, to sell him the timber, to be cut by the vendor, at so much per foot this is a contract merely for the sale of goods. 9 B. & C. 561Smith v Surman. 4 Mann. & R. 455, S.C. And, per Littledale J. even if the contract were for the sale of the trees, with a specific liberty to the vendee to enter the land to cut them, this would not give him an interest in the land within the meaning of the statute. 9 B. & C. 573. (But see. 2 B. & B. 99,Teal v Auty. 4 B. Moore, 542, S.C. 9 M. & W. 505.) In a recent case on this subject, where the plaintiff and defendant orally agreed (in August) that the defendant should give 45l. for the crop of corn on the plaintiff's land, and the profit of the stubble afterwards; that the plaintiff was to have liberty for his cattle to run with the defendant's, and that the defendant was also to have some potatoes growing on the land, and whatever lay grass was in the fields; the defendant was to harvest the corn and dig up the potatoes, and the plaintiff was to pay the tithe; it was held that it did not appear to be the intention of the parties to contract for any interest in land, and the case was not, therefore, within the statute, but a sale of goods, as to all but the lay grass, and, as to that, a contract for the agistment of the defendant's cattle. The Court, however, as to the latter part of this decision, disclaimed impeaching the principle ofCrosby v Wadsworth, but decided on the additional facts in the case before them. 10 A. & E. 753,Jones v Flint. 2 Perr. & D. 594, S.C. Where a contract is within the statute, but is not in writing, it is, as a contract, void altogether; though it may operate as a license, so as to excuse the entry of the purchaser on the land, if not countermanded. 2 Mees. & W. 248.] Still, it has been held in C. P. 2 Brod. & Bing. 362, Peacock v Purvis, that even in aplea, a sale of growing crops [assuming the case to fall within the statute], need not be stated to have been made inwriting. And the Court intimated, that assignments of terms of years need not be pleaded to have been made bywriting. But, with submission, this seems not to apply to cases where the party pleading the assignment takes an interest under it.

(h) [But now, by the new Statute of Wills (1 Vict c. 26, s. 3), the power of disposing by will, executed as required by that Act, is extended to all such real and personal estate as the testator may be entitled to at the time of his death, notwithstanding that he may have become entitled to the same subsequently to the execution of his will. This statute, however, does not extend to any will made before Jan. 1, 1838 (see sect. 34).]

(i) [When this reported dictum of Lord Hardwicke in Casborne v Scarfe and Inglis (inadvertently cited above by the name ofCasborne v Inglis), was relied on before Lord Eldon, be said that be did not believe that Lord Hardwicke said so. 8 Ves. 436. At all events, the law is now otherwise; for it is settled that, although the devisee will not take any beneficial interest in the lands in mortgage, yet the legal estate will pass under a general devise of real estate, notwithstanding the equity of redemption be not foreclosed; unless the will charges the devised estates with debts, or legacies, or annuities, or in some manner inconsistent with a devise of trust or mortgaged estates. 8 Ves. 417,Lord Braybroke v Inskip. 10 Ves. 101,Ex parte Morgan. 1 Jac. & W. 494,Wall v Bright. 2 Y. & Coll. 347,Bainbridge v Lord Ashburton. 8 Mees. & W. 553,Doe v Lightfoot.]

(k) 10 Ves. 613,Broome v Monck. 2 Mod. 462,Holmes v Barker. So where the words of the will were insufficient to pass real, property, it was held that lands contracted for before the date of the will would descend to the heir, and must be aid for out of the personal estate. 2 Eden, 139,Cave v Cave.

(l) [It is now fully settled with respect to equitable estates generally, that the taking of a subsequent conveyance, which merely clothes the equitable estate with the legal title, is no revocation of a devise of the equitable estate. 3 Mylne & K. 296,Clough v Clough.Post, 278, note M.]

(m) 3 Ves. 654,Cave v Holford. 3 Ves. 685,Earl Temple v Duchess of Chandos. 6 Ves. 219,Harmood v Oglander. 17 Ves jun. 134,Tucker v Thurston. [See 1 Cr. & M. 140,Johnson v Johnson.]

(n) [But seeante, p. 277 note (h).]

(o) 2 Bos. & Pull. 500, S.C. under the names ofBowes v Bowes. A codicil attested by three witnesses, "to be taken as part of his will," was held to be a republication, and to pass lands contracted for before the date of the will, and conveyed between it and the codicil. 2 M. & S. 5,Goodtitle v Meredith. That case was decided on the authority of the series of cases mentioned in this note of Mr. Serjeant Williams; the effect of which, as stated b Lord Ellenborough C.J. is, "to give an operation to the codicilper se, and independently of any intention, so as to bring down the will to the date of the codicil, making the will speak as of that date, unless indeed a contrary intention be shewn, in which case it will repel that effect." See also 1 Mer. 285,Hulme v Heygate. 2 Mer. 128,Rowley v Eyton. [3 B. & C. 705,Duffield v Elwes. 5 D. & R. 764, S.C. 2 Bing. 429,Guest v Willasey. 10 Moo. 223. 3 Bing. 614. 12 Moo. 2, S. C. 10 B. & C. 895,Williams v Goodtitle. For instances, where, in accordance withStrathmore v Bowes, the ordinary presumption of republication by codicil has been counteracted by a contrary intention apparent on the face of it, see 3 Y. & Jerv. 278, Smith v Dearmer, 2 Russ. & M. 117,Monypenny v Bristow. 3 Mylne & K. 666,Hughes v Turner. The new Statute of Wills (1 Vict c. 26) does not appear to have altered the general law as to republication by codicil. The subject, however, with respect to wills within the operation of that statute, has greatly diminished in importance; for not only is the testamentary power extended to after purchased lands (s. 3, seeante, p. 277, note (h)), but it is further enacted (s. 24) "that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will." With respect, indeed, to wills, which shall be in any manner revoked, the law as to republication has been materially altered by the 22d section; for it is thereby enacted, that no such will or codicil, or any part thereof, shall be revived otherwise than by re-execution or by a codicil duly executed as required by that Act,and shewing an intention to revive the same. This section proceeds to enact, that "when any will or codicil, which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shewn." This enactment appears to provide for cases similar to that ofCrosbie v M'Doual, 4 Ves. 610, where the testator had executed several codicils to his will containing partial alterations of, and additions to it; and, by a further codicil, referring to the will by date, he changed one of the trustees and executors, and in all other respects expressly confirmed the will: and this confirmation was held not to revive the parts of it which were altered or revoked by the former codicils. It has been held that a will or codicil not duly attested may be republished and made operative by a subsequent codicil having the requisite attestation, though the latter document be in no way annexed to the prior will or codicil. But it should seem that it must distinctly refer to it. See 1 Cr. & M. 42,Doe v Evans. 1 A. & E. 423,Utterton v Robins. 2 Nev. & M. 819, S.C. 5 Sim. 274,Gordon v Reay.]

(p) But see stat. 1 Vict c. 26, s. 23 (post, p. 278, note (u)), which appears wholly to abolish revocations of this nature for the future.]

(q) 3 B. Moore, 21, Parker v Biscoe, S. P. [8 Taunt. 699, S. C.]

(r) So a deed, intended to operate as an appointment of uses, although not sufficient for that purpose, may have the effect of revoking a will, if the party appear to have had that intention. 5 T. R. 124,Shove v Pinke. See also 2 Swanst. 274, Vawser v Jeffery, by Lord Eldon. But it was held, that a will was not revoked by a deed void, under the Statute of Mortmain, on account of the death of the grantor within twelve months after its execution. 2 Bing. 136,Matthews v Venables. 9 Moore, 286, SC So it ways held that a will made by a woman in the exercise of a power of appointment, was not revoked by a subsequent deed made by her during coverture. 1 Russ. 564,Eilbeck v Wood. A deed void at law for fraud and covin is no revocation; for it is not the testator's deed, and may be regarded as a nullity. Ambl. 216, Hick v Mors 8 Ves. 283,Attorney-General v Vigor. But a deed, which is good at law, is a revocation in equity as well as at law, though it was executed under circumstances which makes it void in equity. 5 Sim. 1, Simpson v Walker, overrulingHawes v Wyatt, 3 B. C. C. 156.]

(s) Id Ves. 519, Vawser v Jeffrey, S. P. [2 Swanst. 268. In this case the testator also covenanted to surrender certain copyhold property to the uses of the settlement. The Court of K. B. certified, on the assumption that a surrender had actually been made according to the covenant, that, notwithstanding the settlement was a revocation as to the freeholds, the surrender was no revocation as to the copyholds. 3 B. & A. 462. And this opinion was adopted 'by Lord Lyndhurst C. 3 Russ. 479. The ground of this decision was, that by the surrender nothing more passed out of the surrenderor than was necessary for the purposes of the settlement, and the rest remained in him, not as under the surrender, but in respect of his old estate. What was done, therefore, did not operate as an entire revocation, but was a revocation only as to the partial interest, the new estate which was created by the surrender.]

(t) [In this case, the settlor was seised of the equitable fee only. Whence it appears that equitable estates are governed by the same doctrine, in this respect, that legal estates are. See 5 Sim. 618, Lock v Foote,accord. The rule, indeed, seems general, that every act of revocation at law is a revocation in equity, except where the object of the party, in doing the act, is merely to make a security for payment of debts, or where there is a dealing with the legal estate only (seepost, p. 278, n. (u)); and except also in the case of a partition; in which last case, if there is a change in the use, the will be revoked. (Seepost, p. 278.)]

(u) [So, though the conveyance of an estate to trustees, upon trust to sell for payment of debts, is not revocation in equity of a prior will, notwithstanding such conveyance declares that the surplus money arising from the sale shall be personal estate of the testator, yet if it have the further purpose to provide an annuity for the separate use of the wife until the sale, it will be a revocation; because the wife will be entitled to the annuity after the death of her husband, if the sale do not take place in his lifetime. 4 Russ. 28,Hodges v Green. So, though the taking of a conveyance, which merely clothes the equitable estate with the legal title is no revocation of a devise of the equitable estate (seeante, p. 277, note (l), yet if the conveyance is so framed that the legal estate acquired subsequently to the devise is modified differently from the equitable estate possessed at the time of the devise, it is a revocation. 2 Ves. & B. 382,Rawlins v Burgis. 4 Madd. 368,Ward v Moore. 6 Madd. 221,Brain v Brain. 1 Keen, 369, Bullin v Fletcher. 2 Mylne & Cr. 432, S.C. But now by stat. 1 Vict. C. 26, s. 23. " No conveyance or other act, made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid (seepost, p. 279, note (h)), shall prevent the operation of the will in respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death."]

(x) A binding and valid contract for the sale of lands devised, is in equity as much a revocations as a conveyance would be at law; 19 Ves. 178, Bennett v Tankerville; though the contract be rescinded after the devisor's death,ibid. [6 Sim. 40,Tebbott v Voules.]

(y) [But by stat. 1 Vict c. 26, s. 19, 11 No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances." Seepost, p. 279, note (e).]

(z) [And of this opinion were all the Judges of England (assembled in the Exchequer Chamber, absente Lord Denman) in the great case of Marston v Doe dem.Fox, 8 A. & E. 14. 2 Nev. &. P. 504. The subsequent death of the child was held not to revive the will. 1 Phil. 342,Emerson v Boville.]

(a). 1 Ves. & Beam. 397, Skeath v York S. P.

(b) But marriage, and the birth of a child, will not revoke a will of land made in favour of children by a former marriage; 1 Ves. & Beam. 390,Skeath v York; the reason is, because such revocation would operate only to let in the eldest son to the whole of the estate, which by the will is divided between him and the other children of the first marriage; but as there would be no such consequence as to the personalty, it was held in the Ecclesiastical Court that the will was revoked as to the personalty,ibid. [1 Phil. 339,Hollway v Clarke.] See further, 2 Salk. 593, note,Wright Netherwood.

(c) [4 A. & E. 587,Doe v Edlin. 1 Hagg. 705,Talbot v Talbot. 2 Hagg. 561, Johnson v Wells,accord. But, semble, if there were a child of the marriage, the revocation could not be prevented by the circumstance of an estate acquired by the testator after the making of the will descending upon the child, and thereby becoming a provision, for him. 8 A. & E. 14. 2 Nev. & P. 504. In order to take the, case out of the general rule, and to prevent a revocation, it was held not sufficient that a provision was made for the wife only, but that such provision must also extend to the children of the marriage,ibid.]

(d) See also 4 M. & S. 10, Doe v Barford, in which it was held that the birth of a posthumous child was no revocation of a will made after marriage, although there had been no other child of the marriage, and although neither the testator nor his wife, at the time of his death, were aware that the wife wasenceinte. But the birth, of children, combined with other circumstances, may in some cases revoke a will made after marriage. 1 Phill. Eccl. Rep. 447,Johnson v Johnson. [InGibbons v Caunt, 4 Ves. 848, Lord Alvanley expressed a strong opinion that a revocation would be presumed from the birth of children by a first wife after the date of the husband's will and second marriage, though he had no children by that marriage.]

(e) There are not any subsequent cases on this subject; but it appears that parol, evidence is always admitted in the Ecclesiastical Courts. [1 Phill. 469, 472,Johnson v Johnson. 2 Add. 455,Gibbens v Cross. 1 Curt. 494,Fox v Marston. But it was finally settled in Marston v Doe dem. Fox (ante, p. 278, note (z)) that in the Temporal Courts no evidence of the testator's intention that his will should not be revoked, is, admissible to rebut the presumption of law that such revocation should take place. All questions, however, as to implied revocations by marriage and the birth of issue, are now put to rest by the stat. 1 Vict c. 26, s. 18, by which it is enacted, that every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the Statute of Distributions):" and by sect. 19, which enacts, that "no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances." The reason for the exception in the 18th section is, that a' revocation of the will, in a case to which the exception applies, would operate only in favour of those entitled in default of appointment, and the new family of the testator would derive no benefit whatever from it. -It remains to be considered to what cases these enactments of the new statute extend. The 34th section enacts, that "'this Act shall not extend to any will made before the 1st day of January, 1838." And if the language here employed were exactly and strictly construed, it would seem to follow, that if a will were made at any time before that date, and the testator were to marry after the Act came into operation, the statute would not apply, and the will would not be revoked thereby; while, on the other hand, such a will might be revoked by a presumption of an intention on the ground of an alteration in circumstances taking place at any time during the life of the testator, though after January 1, 1838. But the construction hitherto put upon the statute has been, that wills made previously to 1838, with respect to revocations to be effected subsequently, are subject to the provisions of the Act. 1 Curt. 775, 776,Hobbs v Knight.]

(f) [See ante p. 279, note (e).]

(g) [Seeante, p. 279 b. note (e).] Where two unmarried sisters made mutual wills, it was held that the marriage of one did not revoke the will of the other. 4 Ves. 160,Hinckley v Simmons.

(h) [The Courts, however, are cautious how they construe conditions of this sort. Therefore, where a testator, by three letters, gave certain testamentary directions, "in case I should die on my travels," it was held by Sir J. Nicholl, in the Prerogative Court, that although the testator returned and lived many years afterwards, yet, as by subsequent acts he recognised the papers two years before his death, his return was not such a defeasance as to invalidate the disposition of his property directed by them. 3 Phillim. 209,Strauss v Schmidt. See also 2 Phillim. 294,Ingram v Strong. 3 Phillim. 625,Forbes v Gordon. InBurton v Collingwood, 4 Hagg. 176, a will, written eighteen years before the testator's death, containing this passage, "lest I die before the next sun, I make this my last will," was admitted to probate, the Court holding the disposition not contingent; and adherence to it being shewn by careful preservation. But see 4 Hagg, 179,In the Goods of Ward.]

(i) [By stat. 1. Vict c. 26, s. 20, "no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is herein-before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same." And by sect. 21 it is enacted, "that no obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as herein-before is required for the execution of the will; but the will, with such alteration as part, thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin, or on some other part of the will opposite or near to such alteration, or at the, foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will." It will be observed that the words " cancelling and obliterating," which occur in the Statute of Frauds, are omitted in the new statute, and that the words " otherwise destroying" are substituted.; And it has been held in the Prerogative Court, that cancellation and striking through with a pen is not a revocation since the new Act; 2 Curt. 458,Stephens v Taprell; but that the testator's cutting out his signature is. 1 Curt. 768,Hobbs v Knight. In the construction of the Statute of Frauds it was held inBibb v Thomas, cited in the note above, that, in order to operate a revocation, it was not necessary that the instrument itself should be consumed or torn to pieces. In that case the testator gave the will a "rip" with his hands, so as almost to tear a bit off; then rumpled it together, and threw it upon the fire, but it fell off: still it must soon have been burnt, had not a bystander picked it up unseen by the testator, and put it in her pocket: this was held a sufficient revocation; for that it was both a burning and a tearing; and that throwing it on the fire with an intent to burn, though it was only very slightly singed and fell off, was sufficient within the statute. However, inDoe v Harris, 6 A. & E. 209, S.C. 1 Nev. & P. 405, it was held, that in order to effectuate a revocation by burning, an intention and attempt to burn was insufficient; for that there must be an actual burning of the will to some extent. There a testator, intending to destroy a will, threw it on the fire; but a devisee under the will snatched it off, against the wishes of the testator, and took it away, a corner of the envelope only being burnt, and no part of the will itself banking been affected by the fire: the testator afterwards insisted on its being thrown on the fire again, with intent that it should be burnt, and the devisee then promised to burn it, but did not do so: it was held by the Court of Queen's Bench, that the will, so far as it related to freehold property, was not revoked; because there was no burning of the will itself to satisfy the Statute of Frauds; and no evidence whatever of what was said, proving an intention to revoke, could supply that deficiency. The same Court, however, afterwards held that the will was revoked in respect of a copyhold estate bequeathed by it, the Statute of Frauds not extending to property of that nature. 8 A. & E. 1. 2 Nev. & P. 615. There seems to be no reason why these decisions should not be applied to the new Statute of Wills. But assuming them to be adopted as authorities in its construction, it is difficult to state any precise rule with respect to the extent to which the burning or tearing of the will must go, in order to effect a revocation. In giving judgment inDoe v Harris, Lord Denham observed, that doubt might be entertained now, whether the proof given in Bibb v Thomas would be sufficient as to the acts of burning and tearing. Patte son J. said, "there must be, at all events, a partial burning of the instrument itself. I do not say that a quantity of words must be burnt; but there must be a burning of the paper on which the will is." Williams J. said, "The will must be torn or burnt; and the question will always be, whether that was done with intention to cancel. How much should be burnt, or whether the will should be torn into more or fewer pieces, it is not necessary to lay down." Coleridge J. said, "The question is put, whether the will must be destroyed wholly, or to what extent? It is hardly necessary to say; but there must be such an injury with intent to revoke as destroys the entirety of the will; because it may then be said, that the instrument no longer exists as it was." And Sir Herbert Jenner, in giving judgment in Hobbs v Knight, cited and adopted: the view of the question thus taken by Mr. Justice Coleridge, as applicable to the construction of the new statute. 1 Curt. 778. It must here be observed, that if the act of the destruction be inchoate and incomplete, it will not amount to a revocation Thus] in 3 B. & A. 489, Doe v Perkes, where a testator being angry with one of his devisees, tore his will into four pieces, but was prevented from, further tearing it, partly by force and partly by entreaty, and afterwards becoming calm expressed his satisfaction that no material part was injured, and that the will was no worse; the Court held that it had been properly left to the jury to say whether the testator had perfected his intention of cancelling the will, or whether he was stoppedin medio; and the jury having found the latter, the Court refused to disturb the verdict. [See the summing up to the jury of Holroyd J. in this case, Gow, N. P. C. 191.] But where the testator threw his will into the fire, out of which it was snatched by a bystander, and preserved, without the testator's knowledge, the will was held to be cancelled.Bibb v Thomas,ubi supra.

(k) [But see 1 Curt. 580,Walcott v Ochterlony. 8 A. & E. 1,Doe v Harris., 2 Nev. & P. 615, S. C.]

(l) Where there, were two inconsistent wills, and a codicil referring to the first by date as the last will, it was held that such codicil cancelled the intermediate will, and that evidence of mistake was inadmissible. 4 Ves. 616, Crosbie v M'Doual.

(m) It seems not to be necessary that the witnesses should subscribe their names at all. Vin. Abr. Devise (R.) 4. Phillips on Evidence, vol ii. p. 254. [By the new Statute of Wills, the writing must be executed in the same manner in which a will is required to be executed. Seepost, p. 280, note (o).]

(n) [Seeante, p. 278, note (r).]

(o) [It was further held, that it was sufficient if the testator acknowledgedin fact, though not in words, to the witnesses that the instrument was his will, even though such acknowledgment conveyed no intimation whatever, or means of knowledge, either of the nature of the instrument or the object of signing; and, consequently, that if the witnesses subscribed their names as witnesses, at the testator's request, without seeing his signature, or being informed of the nature of the instrument, the statute was satisfied. 6 Bing. 310,While v Trustees of the British Museum. 7 Bin 457, [Wright v Wright. 1 Cr. & M. 140,Johnson v Johnson. The new statute (1 Vict c. 26, s. 9) enacts, that no will (or testament or codicil, or any other testamentary instrument) shall be valid unless the signature shall be "made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." Where the testator produces the will, with his signature visibly apparent on the face of it, to the witnesses, and requests them to subscribe it, this is held a sufficient acknowledgment of his signature within this section. 3 Curt. 451, Gaze v Gaze. Ibid. 547,Blake v Knight. Ibid. 611,Keigwin v Keigwin. Ibid. 756,In the Goods of Ashmore. But not where be conceals his signature from them. 3 Curt. 160,Ilott v Genge: affirmed in the Privy Council, Feb. 1844, (butquoere, on what ground).Hudson v Parker, Prerog. July 4, 1844. See alsoinfra, n. (p).]

(p) [The new statute (seeante, p. 280, note (o)) makes it necessary that both the witnesses shall be present at the same time when the signature is made or acknowledged by the testator. And they must attest it in the presence of the testator, though not of each other. 3 Curt. 659, per Sir H. Jenner Fust. But it has been held by the same learned Judge that the Act is not complied with, unless both witnesses shall attest and subscribe after the testator's signature shall have been made or acknowledged to them when both are actually present at the same time. 3 Curt. 243,Moore v King. Ibid. 648,Cooper v Bockett. This point, however, is understood to be now sub Judice on appeal to the Privy Council.] A will, attested by three witnesses, was written on the three sides of a sheet of paper, and concluded by Stating, that the testator had signed his name to the two first sides, and his band and seal to the last side. He did put his name and seal at the end of the will, but did not sign his name to the two first sides. It was urged that the will was invalid for want of sufficient execution, and the case ofRight v Price, 1 Doug. 241, was cited. In that case the will was in five sheets of paper, and the testator signed but two of them; it was held not duly executed. But in the present case the will was held good, on the ground that the testator did all be intended to do at the time of execution. 2 Brod. & Bing. 660,Winsor v Pratt. [The making of a mark by the testator is a sufficient signing. 8 A. & E. 94,Baker v Dening. But putting a seal by him is not. 1 Wils. 313,Smith v Evans. 2 Ves sen. 459,Grayson v Atkinson. 1 Ves jun. 13, 15,Ellis v Smith. 17 Ves. 459,Wright v Wakeford; which in this respect appear to overruleLemayne v Stanley, 3 Lev. 1. S. C. 1 Freem. 538. So a man may attest by mark;. 3 Curt. 756; though not by sealing,semble. 3 Curt. 117,In re Byrd. So a man may well attest, who, not knowing how to write, has his band guided by another. 3 Q. B. 117,Harrison v Elvin. 2 G. & D. 769, S. C.]

(q) And by Dallas C.J. inWinsor v Pratt, 2 Brod. & Bing. 657. [And by Sir John Nicholl inLord John Thynne v Stanhope, 1 Add. 5.]

(r) So where a man made his will according to the Statute of Frauds in July 1812, and in November, 1816, made various interlineations and obliterations, struck out the original date, and substituted a day in the latter month and year, but did not re-sign or republish the will, and also had a fair copy made of the original will thus altered, but did not execute it; it was held that these obliterations and interlineations, coupled with the circumstances of the case, did not amount to a revocation: 2 Brod. & Bing. 650,Winsor v Pratt. [See also 1 Hagg. 143,In the Goods of Applebee. 4 Russ. 435,Kirke v Kirke. These cases have fully established the doctrine of what are termed dependent relative revocations, i, e. where the act of cancelling, etc. being done with reference to another act, meant to be an effectual disposition, will be a revocation or not according as the relative act be efficacious or not. In other words, where it is evident that the testator, though using the means of revocation, could not intend it for any other purpose than to give effect to another disposition, though if it had been a mere revocation, it would have had effect, yet the object being only to make way for another disposition, if the instrument cannot have that effect, it shall not be a revocation. 7 Ves. 372, Ex parte Lord Ilchester, by Lord Alvanley. This doctrine has been lately applied by the Judicial Committee of the Privy Council to the construction of the 21st section of the new Statute of Wills (ante, p. 279, note (i)) in a case where a legacy had been given, and the amount was afterwards obliterated by the testator, so as to be quite illegible, and another sum was substituted, but without the attestation required by that section: and their Lordships held that the obliteration did not operate as a revocation, because the testator's intention appeared to be to revoke by the substitution of another bequest, which in his apprehension would be effectual, but which in fact was not so; and, therefore, that the will ought to be pronounced for in its integral state, that being ascertainable by evidencealiunde.Brooke v Kent, Privy Council 31 March, 1840.Soar v Dolman, 3 Curt. 121, accord. In connection with this principle it has been established, that a subsequent will made under the impulse of a mistaken notion of a fact, and referring to the fact as having actually happened, and as being the foundation, of the present testamentary act, will not revoke a former will; according to the case, "pater credens filium suzm esse mortuum, alterum, instituit hoeredem; filio domi redeunte, hujus institutionis vis est nulla."-Cicero de Oratore, lib i. c. 38. As where a testator gave legacies to the grandchildren of his sister, and afterwards, by a codicil, revoked the legacies, giving as a reason that the legatees were dead; upon its being proved that the fact of their death was not true, it was held that the legacies were not revoked, on the ground that the cause of revocation was false. 3 Ves. 322,Campbell v French. See also 1 Hagg. 378,In the Goods of Moresby. 10 A. & E. 228,Doe v Evans. 2 Perr. & D. 378, S. C.]

(s) [So where a testator has the custody of one of two duplicate wills, and it cannot be found after his death, the presumption of law is that be destroyed itanimo revocandi; and both parts are consequently to be considered revoked, unless such presumption be rebutted. 2 Phillim. 23,Rickards v Mumford. 2 Hagg. 266,Colvin v Fraser. For the law is, that if a will was in the testator's custody, and upon his death it be found among his repositories mutilated, it is to be presumed that be himself did the act of mutilation; 1 Castemp. Lee,Davies v Davies. 3 Hagg. 568,Lambell v Lambell; or if it cannot be found, that be himself destroyed it,animo revocandi. 3 Hagg. 184,Lillie v Lillie. 4 Hagg. 245,Wargent v Hellings. 1 Moore, P. C. R. 299,Welch v Phillips. As to the case of a testator having the custody of both duplicates, and cancelling or destroying one of them only, see 13 Ves. 310,Pemberton v Pemberton. 3 Hagg. 548,Roberts v Round. The cancellation of a codicil has been held to have the effect of cancelling an interlineation in the will to the same effect. 3 Ves 5. & B. 122,Utterson v Utterson. Again, the destruction or mutilation of a will has been held to be an implied revocation of a codicil. 4 Hagg. 361,Coppin v Dillon. But there have been cases where the codicil has appeared so independent of, and unconnected with, the will, that under the circumstances the codicil has been established, though the will has been held invalid. 2 Castemp, Lee, 335,Barrow v Barrow. 2 Add. 231,Medlycott v Assheton. 1 Curt. 289,Tagart v Hooper.]

(t) But if a will be once cancelled, nothing but a formal republication will re-establish it. 13 Ves. 290,Pemberton v Pemberton. [Since the decision ofGoodright v Glazier, cited in the note above, it has been denied that there is any decided principle of law without limitation, that on the revocation of the subsequent will, the former uncancelled will shall revive. 1 Phillim. 419, Moore v Moore, before the delegates. And in the Ecclesiastical Courts it has been regarded as a question of intention, uncontrolled by any presumption, either adverse to, or in favour of, the revival.Ibid. 2 Add. 125, Usticke v Bowden. 1 Hagg. 326,Kirkcudbright v Kirkcudbright. But now with respect to wills which are within the operation of stat. 1 Vict c. 26, it is enacted by section 22 of that Act, that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed as required by that Act.]

(x) But in general, an action at law cannot be maintained for a legacy. 5 T. R. 690,Deeks v Strutt. See 2 Saund. 137, note.

(b) See 2 Saund 62, not (6). [The plea need not conclude with a verification (see ante 234, note(i)); though it must not conclude to the country. Seeante, 103, note(b). Since the new rules it is obvious, that the distinction above suggested, as to pleading the statute, between debt andassumpsit, cannot possibly exist; for the plea of nil debet is no longer allowed (seeante, 38, note(o). And before the new rules the distinction had been expressly repudiated, and the new judicially adopted which is taken in the note above. 1 Cr. & J. 1, 9,Chapple v. Durston. And accordingly it is held that the statute must be replied specially to a plea of set-off, and cannot be taken advantage of under the general replication ofnil debet. Ibid.]

(e) Seeante, p. 207, note.

(l) [So where the rent is payable quarterly, the demand must be confined to one quarter's rent. 3 C. & P. 613,Doe v. Paul.]

(m) In 4 Taunt. 555, Tinkler v. Prentice, it was held, that in pleading a tender of rent on the land it must be shewn that the tenant was on the land time enough before sunset to have counted the money. Wherever, therefore, a demand or a tender is not made personally, the person making it must be on the land time enough before sunset to count the money, and must remain till the sun has set. See Aleyn, 252,Fabyan v. Rewmston. [And it appears that, even when the demand is personal, it should be made at the last hour of the day, at sunset; for the tenant has till then to pay, and the demand should be made at the time when he is bound to pay. 3 C. & P. 613, Doe v. Paul, coram Lord Tenterden. See 2 D. & R. 29,Doe v. Brydges.]

(n) 2 Dougl. 477,Goodright v. Cator. [2 B. & C. 490,Doe v. Masters. 4 D. & R. 45, S.C.]

(o) In 2 M. & S. 525, Doe v. Alexander, a question arose, whether the statute removes the necessity of a demand, when there is a proviso of re-entry in case the rent be in arrear a certain time,being lawfully demanded. Lord Ellenborough C.J. thought that there where parties by their stipulation introduce the necessity of a demand, that stipulation is not made null by the statute, but a demand must still be made, though not a demand according to the niceties of the common law. However, the other Judges of the Court of K. B. thought that before the statute the words "lawfully demanded" were in substance contained in the common law proviso, and that consequently their being expressly stated since the statute cannot vary the legal effect of the proviso: and they therefore held that a demand was unnecessary. [5 B. & A. 384, 394, Doe v. Wilson, per Abbott C.J. and Holroyd J.accord.]

(p) Proof that no sufficient distress was found o the premises on some one day, after the day on which the rent is payable to save the forfeiture, is prima facie evidence, and sufficient to bring the case within the statute, unless the defendant shew that there was a sufficient distress. 15 East, 286,Doe v. Fuchau. Where the lease contains a clause of re-entry for non-payment of rent, in case no sufficient distress be found upon the premises, the landlord is bound to search every part of the premises. Forest. 19,Rees v. King. [But the words "no sufficient distress," mean no sufficient distress that can be got at. Therefore, where the tenant had locked up the outer door of the premises, so that the landlord could not get at them to distrain, it was held that he was entitled to recover. M. & Malk. 77, Doe v Dyson, coram Lord Tenterden.]

(q) [Therefore, where the declaration in ejectment is served, the parties are in the same situation as if a legal demand had been made on the day when it ought to have been made at common law; and the title of the landlord must be taken to have accruedat that time, and not on the day on which the declaration in ejectment is served. Hence, it is no ground of objection that the day of the demise in the declaration is prior to the day of service. 3 B. & C. 754,Doe v. Shawcross. 5 D. & R. 711, S.C. Indeed, it could not be after that day; because it would then appear upon the proof, that the nominal plaintiff had no title at the time of service. 3 B. & C. 754. Accordingly, it is not essential part of the plaintiff's case to prove the day when the declaration in ejectment was served. 3 B. & C. 755, per Bayley J. However, it has been generally considered necessary to prove the service, in order to shew that half a year's rent was due before. Doe v. Sir F. Knowles, coram Wightman J. June, 1843, accord. A variance between the amount of rent proved to be due and the amount demanded by the plaintiff in his particulars of breaches is not material. 3 Bing. 3, Tenny v. Moody. 10 B. Moore, 252, S.C.]

(r) By the 4th sect. Of the same statute, the lessee or his assignee is entitled to stay the proceedings on payment of the arrears of rent and costs, which clause extends to the mortgage of the term. 3 Taunt. 402,Doe d. Whitfield v. Roe. [The Court will not extend this relief to the tenant after trial. 2 B. & C. 490,Doe v. Masters. 4 D. & R. 45, S. C. And where the ejectment is brought on a forfeiture by breach of covenant to repair, the Court has no power to stay proceedings upon terms, if the lessor of the plaintiff does not consent. 10 A. & E. 71,Doe v. Asby. 2 Perr. & D. 302, S.C.]

(s) Courts of Equity always relieved against forfeitures for non-payment of rent. See the cases collected in Comyn's Landlord and Tenant, p. 439. [See also 1 Hare, 109,Bowser v. Colby.] But it seems now to be settle that they will not relieve in any case where the forfeiture is incurred by a breach of covenant sounding wholly in damages where the parties cannot be put in statu quo. Ibid. and 2 Price, 200, Bracebridge v. Buckley, where all the cases are considered. [See also 4 Sim. 96,Green v. Bridges.]

(t) [But by special consent of the parties, a re-entry may be for default of payment of rent, without the aid of the statute, and without any demand of the rent according to the common law: as where the lease contains a proviso that if the rent be in arrear for twenty-one days, an ejectment may be maintained without actual re-entry, and without any demand of rent. 2 B. & C. 490,Doe v. Masters. 4 D. & R. 45, S.C.]

(u) Where the words of the proviso were, "that the lease shall be deemed null and void to all intents and purposes" on a certain default of the lessee, it was held that the true construction of this proviso is, that it shall be voidable only at the option of the lessor: for the Court will not permit the lessee to take advantage of his own wrong. 4 B. & A. 401,Doe v. Bancks. The same point had been previously determined inRede v. Farr, 6 M. & S. 121. That was an action against the surety on a bond conditioned for the performance of the covenants in a lease, in which lease was a proviso, that if the rent should be in arrear a certain time, whether demanded or not, the lease should be null and void: the lessee purposely suffered the rent to be in arrear beyond time, and then paid it, and afterwards finding that this lease was a disadvantageous one, gave a regular notice to quit, contending that this lease had become void, and that he was tenant from year to year only: but the Court held that the lease was voidable only, and had been set up again by the subsequent payment of rent; and therefore that the defendant, although merely a surety, was liable for breaches of covenant committed by the lessee subsequent to the expiration of the notice to quit. [These causes were followed by that ofArnsby v. Woodward, 6 B. & C. 519. S.C. 9 D. & R. 536, where the proviso, besides the statement that, if any of the covenants should be broken, the term should cease, determine, and be utterly void, added, "and it shall be lawful to and for the landlord into and upon the demised premises to re-enter," etc.; and it was held that this proviso did not make the lease absolutely void, but voidable only by breach of covenant. The Court was further of opinion, that a subsequent receipt of rent by the landlord was a waiver of a forfeiture; and, per Lord Tenterden, if the proviso had been in the very words found in Doe v. Bancks andRede v. Farr, the receipt of the rent would have been an admission that the lease was subsisting at the time when the rent became due, and he could not have afterwards insisted on a forfeiture, previously committed; and, per Littledale J., the landlord was bound to re-enter, in order to take advantage of the forfeiture, as in the case of freehold interest. See also 4 B. & Ad. 664,Roberts v. Davey. 1 M. & W. 402,Doe v. Birch. 4 Bing. N.C. 395,Malins v. Freeman. 6 Scott, 187, S.C. 1 Hare, 109, Bowser v. Colby, accord. These authorities appear to be strongly opposed to, if not to overrule, the distinction taken in the principal not above, between leases for lives and leases for years; inasmuch as they seem to establish, that, although a lease for years contains a proviso that it shall be utterly void for non-payment of rent, or other breach of covenant, yet it shall be regarded as voidable only, so that the landlord, by the acceptance of rent or the like, with notice of the breach, will waive the forfeiture.]

(x) Some positive act of waiver is necessary: merely lying by and witnessing a forfeiture by the exercise of a prohibited trade is not sufficient, where there has not been any acceptance of rent. 3 Taunt. 78,Doe v. Allen. [And it has been doubted whether even a demand of rent, which has become due subsequent to a forfeiture, amounts to a waiver. But see 1 M. & W. 402,Doe v. Birch. If the forfeiture be a continuing one, as where it is incurred by the using of rooms in a manner prohibited by a covenant in the lease, the acceptance of rent after such user is no waiver of the forfeiture incurred by a subsequent continuing user. 9 B. & C. 376, Doe v. Woodbridge, 4 Mann. & R. 302, S.C. So where there was a covenant to insure the demised premises, and keep them insured during the term; and the premises were never insured previously to a distress for rent, and the tenant continued to suffer them to remain uninsured de died in diem after the distress; it was held that this was a continuing breach, for which the landlord might recover in ejectment, on a demise subsequent to the distress. 1 B. & Ad. 428,Doe v. Peck. So if a neglect to repair continues from day to day, that is a continuing cause of forfeiture. 2 CR. & J. 667, 669,Doe v. Durnford. But a forfeiture incurred by the lessee's becoming insolvent is not a continuing one. 5 B. & Ad. 765,Doe v. Pritchard. 4 Bing. N.C. 38,Doe v. Rees. 6. Scott, 161, S.C. The receipt of rent, after an ejectment is brought on a forfeiture, is not waiver of such forfeiture. 1 C. & P. 346,Doe v. Meux. It has been held, that if the conduct of the lessor has been such as to mislead the lessee into neglect of a covenant, the lessor shall not be allowed to insist on such neglect as a ground of re-entry. R. & Moo. 343, Doe v. Rowe. 2 C. & P. 246, S.C. 9 C. & P. 706,Doe v. Sutton. See also R. & Moo. 29,Doe v. Ekins. 1 C. & P. 155, S.C. 2 Mann. & Gr. 752.]

(y) So where the lessor has once assented to an assigned of the whole lease, the condition is gone. [And equity has followed the law in this respect. 12 Ves. 191,Jones v. Jones. 14 Ves. 173,Brummell v. Macpherson. 1 Ves. & B. 191,Macher v. Foundling Hospital.] See the cases, post, notes (d) and(f). See also 5 Taunt. 249, Lloyd v. Crispe, where it was laid down by Sir James Mansfield C.J., that a landlord, by accepting rent of the assignee, although he had never assented to the assignment in writing according to the terms of the proviso, had waived the condition, and that the assignee might assign to another without licence. But the landlord, by waiving his right of re-entry by acceptance of rent from his lessee after one underletting, does not lose his right to re-enter on a subsequent underletting. 4 Taunt. 735, Doe v. Bliss. [5 B. & Ad. 771, per Tuanton J. Ibid. 781, per Patterson J.] Andquoere, whether, if he had by writing licensed an underlease of the whole premises for a portion of the term, the lessee could have underlet for the residue of the term without further licence? It should seem not; for thought in Dumpor's case a licence to assign part was held to operate as a licence to assignall, on the ground that a condition is entire and cannot beapportioned, and therefore a licence to underlet part would operate as a licence to underletall, yet a licence to underlet the whole for a portion of the term is no apportionment of the condition, but rather a suspension of it, against which no rule of law seems to militate, inasmuch as the entirety of the condition is preserved; and on the preservation of the entirety of the condition, the distinction noticed in the subsequent part of the learned serjeant's note turns, viz. that an assignee of part of the reversion in the whole premises may take advantage of a condition, but an assignee of the whole reversion in part of the premises cannot.

(z) 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, but continued in possession after, did not waive his right of re-entry. 1 Stark. 411,Doe v. Johnson. Where the lease contained a general covenant to repair, and also a covenant to repair upon three months' notice, Lord Ellenborough C.J. held that the landlord, by giving notice, had not waived his right of re-entry for the breach of the general covenant. 2 Camp. 520,Roe v. Paine. [In this case the notice required the tenant to repairforthwith. But if the notice had required him to repairwithin three months, the landlord would have thereby waived his right of re-entry for the breach of the general covenant (although the right of action for the breach of it would have remained). 4 B. & C. 606,Doe v. Meux. 7 D. & R. 98, S.C. If such a notice did not operate as a waiver of the forfeiture for the breach of the general covenant, the extreme injustice would follow, that the landlord might bring ejectment, after the tenant had put the premises into complete repair pursuant to the notice. So where the lease contains a general covenant to repair, and a proviso for re-entry upon breach of any covenant, and also a proviso that the landlord, in case of non-repair, may give the tenant notice to repair, and in case the repair shall not be done within a prescribed period, may perform it himself, and distrain upon the tenant for the expense, the landlord, by giving notice under this latter proviso, will waive his right of re-entry for a breach of the general covenant. 5 A. & E. 277,Doe v. Lewis. 6 Nev. & M. 764, S.C. See 4 B. & Ad. 84,Doe v. Brindley. 1 Nev. & M. 1, S.C.]

(a) See post, Vol. II. p. 284, note (2).

(b) [Post, Vo. II. p. 47, 48, note (1) toFowell v. Forrest. 1 V. & B. 188,Macher v. Foundling Hospital. 3 Madd. 218,Richardson v. Evans.]

(c) [So where the condition of re-entry was, if the lessee should "grant any underlease, or let, set, or assign, transfer, set over, or otherwise part with" the demised messuage, or that present indenture of lease, it was held that the deposit of the lease with a creditor, as a security for the payment of money advanced, was no forfeiture. 4 D. & R. 226,Doe v. Hogg. R. & Moo. 36. 1 C. & P. 160, S.C.]

(d) [See also 1 Capm. 20,Doe v. Worsley. 12 Ves. 395,Greenaway v. Adams. 15 Ves. 265,Church v. Brown.] So where the tenant holding under a similar condition entered into partnership with A., and agreed that he should have the use of a back room and other parts of the premisesexclusively, and of the rest jointly with the tenants, the lease was held to be forfeited. 1 M. & S. 297,Roe v. Sales. [So where the tenant engaged, that in case he should let, assign, or demise, or suffer to be occupied by any other person, without the consent in writing of the landlord, any part of the meadow or ancient pasture ground demised, he should pay an additional rent; and the tenant, without the consent of the landlord, suffered other persons to use small portions of the land for the purpose of raising a potato crop; it was held that this was an occupation of the land by other persons, such as to entitle the landlord to the additional rent: 1 Cr. M. & R. 55, Greenslade v. Tapscott: and the Court appeared to doubt the authority of Doe v. Laming, 4 Camp. 77, where a clerk in the Post Office had lodged for more than a year in a room of the demised premises (a coffee-house), of which he had had exclusive possession; and Lord Ellenborough held that this was no breach of the tenant's covenant not to grant any underlease for any term whatsoever, or let, assign, transfer, or set over, or otherwise part with the said messuage etc. or his term therein, or any part thereof, without licence, etc.; his Lordship saying, that the covenant could only extend to such underletting as a licence might be expected to be applied for; and who ever heard of a licence from a landlord to take in a lodger?] An assignment by operation of law, as by the bankruptcy of the lessee, is no forfeiture; 2 Eq. Cas. Abr. 100,Goring v. Warner. 2 Atk. 219,Philpot v. Hoare. Ambl. 480, S.C. 3 M. & S. 353,Doe v. Bevan; unless it be expressly covenanted that the lease shall be forfeited by the bankruptcy of the lessee. 2 T.R. 133,Roe v. Galliers. See also 6 T.R. 684,Domett v. Bedford. [1 Cr. M. & R. 405,Doe v. David. So where the lessee by deed conveyed all his property to trustees for the benefit of his creditors, and subsequently a commission issued against him, and he was found bankrupt; it was held that the deed, being an act of bankruptcy and void, did not operate as a valid assignment of the lease, which therefore passed to the assignees, and so no forfeiture. 5 B. & C. 308,Doe v. Powell. 8 D. & R. 35, S.C. 2 Y. & Jerv. 372,Powell v. Lloyd.] Neither is an assignment by the sheriff under a fi. fa.; 8 T.R. 58,Doe v. Carter; unless the lessee by his own voluntary act procures or occasions the lease to be taken in execution; 8 T. R. 300,Doe v. Carter; or the lease is made to depend on the actual occupancy of the premises by the lessee. 2 East, 481,Doe v. Hawke. 8 East, 185,Doe v. Clarke. Where the proviso contains an exception of assignments by will, the executors or legatee cannot therefore assign without licence; but where they had done so, and the lessor had accepted rent of their assignee, the condition was held to be waived, and that the assignee might assign without licence. 5 Taunt. 249,Lloyd v. Crispe. In the same case it was held, that the vendor of a term is bound to procure the lessor's licence to the assignment, and not the vendee. Under a covenant not to carry on, or suffer to be carried on, any trade or business, an assignment to a schoolmaster was held to be a forfeiture. 1 M. & S. 95, Doe v. Keeling. [But where the lessee covenanted that he would not do any act, matter, or thing, upon the demised premises, which might he grow, or lead to the damage, annoyance, or disturbance of the lessor, or any of his tenants, or to any part of the neighbourhood; and the proviso for re-entry was that the lessee should not permit any person to inhabit the premises, who should carry on certain specified trades or businesses (that of a licensed victualler not being any of these), or any other business that might be, or grow, or lead to be offensive, or any of his tenants, or to any part of the neighbourhood; and the proviso for re-entry was that the lessee should not permit any person to inhabit the premises, who should carry on certain specified trades or businesses (that of a licensed victualler not being any of these), or any other business that might be, or grow, or lead to be offensive, or any annoyance or disturbance to any of the lessor's tenants; it was held that the opening of a public-house on the premises was not a breach of the covenant or proviso. 1 B. & C. 713, Jones v. Throne. 3 D. & R. 152, S.C. Again, under a covenant in a lease of a house, not to use or exercise the trades or businesses of a butcher, baker, slaughterman, melter of tallow, tallow-chandler, tobacco-pipe burner, soap-maker, sugar-baker, fellmonger, dyer, distiller, victualler, vinter, tavern-keeper, or coffee-house keeper, tanner, common brewer, or any offensive trade, without licence; it was held that the lease was not forfeited by carrying on any occupation besides a trade; and that it was not a trade to use the house as a private lunatic asylum, the word trade in this covenant being applicable only to a business conducted by buying and selling. 2 A. & E. 161,Doe v. Bird. 4 Nev. & M. 285, S.C. The general rule is, that a clause of re-entry be construed strictly. Accordingly, a proviso in a lease, giving power of re-entry if the tenant make default in performance of any of the clauses by the space of thirty daysafter notice, was held not to apply to a breach of a covenant not to allow alterations in the premises, or suffer new buildings to be made on them without permission. 1 B. & Ad. 715,Doe v. Marchetti. So a proviso for re-entry, if the lessee "shall do or cause to be doneany act, matter, or thing, contrary to and in breach of any of the covenants," was held not to apply to a breach of a covenant to repair, the omission to repair not being an act done within the meaning of the proviso.3 B. & Ad. 299,Doe v. Stevens. However, in Doe v. Elsam, M. & Malk. 189, Lord Tenterden said, that he did not think that provisoes for re-entry were to be construed with the strictness of conditions at common law; but that, being matters of contract between the parties, they should be construed as other contracts, according to fair and obvious construction, without favour to either side. See aldo 3 B. & Ad. 402,Doe v. Jepson. Where the forfeiture relied on is a breach of covenant by the lesee's omitting to do some act, it lies on the lessor to give some evidence of the omission. 2 C. & P. 245,Doe v. Robson. Accordingly, where the alleged forfeiture was by breach of a covenant to insure in some office, in or near London, it was held that the omission to insure must be proved by the plaintiff. 8 A. & E. 571,Doe v. Whitehead. 3 Nev. & P. 557, S.C. The landlord's re-entry for a forfeiture is no bar to an action of covenant for a breach accrued before the re-entry, notwithstanding, by the terms of the condition of re-entry, the landlord is to have the premises again, "as if this indenture had never been made;" for this means only that he is to have themfrom the time of re-entry, as if the indenture had not been made. 4 Bing. N.C. 178,Hartshorne v. Watson. 5 Scott, 506, S.C. The landlord, on re-entry, is entitled to the emblements which he finds growing on the land, in all cases where the condition of re-entry is for a forfeiture occasioned by the act of the lessee, or in consequence of his act. 7 Bing. 154,Davis v. Eyton. 4 Moo. & P. 820, S.C.]

(e) See 2 B. & A. 105, Twynam v. Pickard, that an assignee of the reversion in part of the land may maintain covenant by virtue of the statute 32 H. 8, although he cannot enter for condition broken.

(f) "It cannot run with the land: because the question of its running with the land supposes an assignment, and the very assignment by act of law, or with the licence of the lessor, destroys the covenant." Comyn on Landlords and Tenants, p. 220, citing 3 Wils. 33,Bally v. Wells. 5 Taunt. 795,Doe v. Smith. 2 Marsh. 395, S.C. where it was held that a lessee bankrupt, coming in as assignee of his own assignees, was discharged from his own covenant not to assign without licence. See also the cases in note(d). [But inDoe v. Smith, the covenant did not name assigns: where it does, it should seem that they will be bound by it. 8 B. & C. 486,Paul v. Nurse. 2 Mann. & R. 525, S.C. And although the condition for re-entry is destroyed when the lessor has licensed an assignment, yet it may be doubted whether it is correct to say that the covenant is destroyed; and still more so, when he has merely waived the forfeiture. See 2 Mann. & Gr. 729, 751,West v. Blakeway. 3 Scott, N. R. 199, 215, 216, S.C.]

(g) In order to take advantage of a condition of re-entry, it is not necessary that the party should have any reversion in the land. 2 B. & A. 168,Doe v. Bateman. [But a power of re-entry cannot be reserved to a stranger to the legal interest, whose real title is disclosed on the lease. 4 Taunt. 23,Doe v. Lawrence. 2 Cr. & J. 232,Doe v. Adams. Therefore where a man bequeathed certain leasehold premises to trustees, on trust to permit and suffer his wife to receive the rents, etc.; and afterwards the surviving trustee and the widow granted a lease of the premises, the rent to be paid to the widow, and the lessors reserved a power to re-entry on non-payment of the rent, and the lease disclosed the title of the widow, who, after the death of the trustee, entered on the premises; it was held that, being a stranger to the legal estate, the power to re-entry could not be reserved to her, and that the lease operated as a lease by the trustee, and a confirmation by her. 2 Cr. & J. 674,Doe v. Goldsmith. Where in an under-lease it was provided that the lease and the original lessor might re-enter for any breach of covenant, it was held, that the lessee alone might maintain ejectment for a forfeiture incurred by the under-lease. 4 Bing. 276,Doe v. White. 12 B. Moore, 526, S.C. As to what form of words will make a condition of re-entry, see 8 B. & C. 308,Doe v. Watt. 1 Mann. & R. 694, S.C. 4 C. & P. 3,Doe v. Kneller. It is not essential that the lease should be under seal. 8 B. & C. 308. 1 Mann. & r. 694. It is a good defence to an ejectment for a forfeiture, that the landlord, after the execution of the lease, conveyed away his title to the premises by mortgage. 5 B. & Ad. 1065,Doe v. Edwards. 3 Nev. & M. 193, S.C.]

(h) And so is the law at this day, [in cases of leases granted before the passing of the stat. 4 W. 4, c.22], notwithstanding the statute hereinafter mentioned. 2 Madd. 268,Norris v. Harrison. By statute 11 Geo. 2, c.19, s.15, it is enacted, "that where any tenant for life shall happen to die before or on the day on which any rent was reserved or made payable upon any demise or lease of any lands, tenements, or hereditaments, which determined on the death of such tenant for life, the executors or administrators of such tenant for life shall and may, in an action on the case, recover of and from such under-tenant or under-tenants of such lands, tenements, or hereditaments, if such tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion, of such rent, according to the time such tenant for life lived, of the last year, or quarter of a year, or other time in which the said rent was growing due as aforesaid, making all just allowances, or a proportionable part thereof respectively." This statute applies to all cases where the lease determines by the death of the tenant for life: therefore, where the tenant for life has a power to make leases upon certain terms, but in fact makes leases not pursuant to the power, upon his death the rent must be apportioned; 1 Swanst. 337,Ex parte Smyth; and see the elaborate notes of the reporter in the same case, and Clarkson v. Lord Scarborough there cited. In those cases the tenant for life having a power to lease by deed, with certain covenants, had leased by parol from year to year. It should seem, however, that if the lease, or an agreement for it, be in writing, and under such circumstances that the tenant must be considered in equity as a purchaser, the contract, although not made strictly pursuant to the power, will be inforced in equity to the extent of the power, and of course the statute will not apply. 1 Swanst. 357, Ex parte Smyth, note. Whether the executors of tenant in tail, who has made leases, void as against the remainder-man, and dies without issue, be within the equity of this statute, seems doubtful. Ambl. 198,Paget v. Gee. 2 Bro. C.C.659,Vernon v. Vernon. Whitfield v. Pindar there cited. 8 Ves. 308,Hawkins v. Kelly. The utmost extent of the cases is, that if the remainderman has received the whole rent, he shall account in equity to the executors of the tenant in tail. It is questioned by Mansfield C.J. in 3 Taunt. 331, Wykham v. Wykham, whether the executors of tenant pur auter vie are within this statute. But, with submission, that question can hardly arise; for it should seem that either the special occupant, or executor or administrator, or devisee of tenant pur auter vie would be bound by a lease granted by him in his lifetime, and the rent payable under that lease would of course go with the reversion, since the lessee's interest in such case is not determined by the death of tenantpur auter vie, but by the death ofcestui que vie. Probably there is an error in the report, and the question intended to be put by Mansfield C.J. was, whether it had ever been determined that tenant pur auter vie was entitled to a portion of the rent under this statute, where cestui que vie died between two-days. That he is within the mischief of the Act seems clear, for otherwise the rent would be lost; and it is no answer to say that he might have provided for the case by express covenant, for so might tenant for his own life. The words of the statute, however, confine its operation to executors of tenant for life, and it might probably be considered too great an extension of the equity of it, if tenant pur auter vie were held to be entitled to its benefit. [These questions have been cleared by the passing of the stat. 4 W. 4, c. 22, which, after reciting the stat. 11 Geo. 2, c. 19, and that "doubts have been entertained whether the provisions of the said Act apply to every case in which the interests of tenants determine on the death of the person by whom such interests have been created, and on the death of any life or lives for which such person was entitled to the lands demised, although every such case is within the mischief intended to have been remedied and prevented by the said Act; and it is therefore desirable that such doubts should be removed by a declaratory law: and whereas, by law, rents, annuities, and other payments due at fixed or stated periods are not apportionable (unless express provision be made for the purpose), from which it often happens that persons (and their representatives) whose income is wholly or principally derived from these sources, by the determination thereof before the period of payment arrives, are deprived of means to satisfy just demands, and other evils arise from such rents, annuities, and other payments not being apportionable, which evils require remedy," it is enacted, "that rents reserved and made payable on any demise or lease of lands, tenements, or hereditaments, which have been and shall be made, and which leases or demises determined or shall determine on the death of the person making the same (although such person was not strictly tenant for life thereof), or on the death of the life or lives for which such person was entitled to such hereditaments, shall, so far as respects the rents reserved by such leases, and the recovery of a proportion thereof by the person granting the same, his or her executors or administrators (as the case may be), be considered as within the provisions of the said recited Act." And by sect.2 , "from and after the passing of this Act, all rents service reserved on any lease by a tenant in fee, or for any life interest, or by any lease granted under any power (and which leases shall have been granted after the passing of this Act [Royal Assent, June 16, 1834], and all rents charge, and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments of every description, in the United Kingdom of Great Britain and Ireland, made payable or coming due at fixed periods under any instrument that shall be executed after the passing of this Act, or periods under any instrument that shall beexecuted after the passing of this Act, or (being a will or testamentary instrument) that shall come into operationafter the passing of this Act, shall be apportioned so and in such manner that on the death of any person interested in any such rents, annuities, pensions, dividends, moduses, compositions, or other payments as aforesaid, or in the estate, fund, office, or benefice, from or in respect of which the same shall be issuing or derived, or on the determination by any other means whatsoever of the interest of any such person, he or she, and his or her executors, administrators or assigns, shall be entitled to a proportion of such rents, annuities, pensions, dividends, moduses, compositions, and other payments according to the time which shall have elapsed form the commencement or last period of payment thereof respectively (as the case may be), including the day of the death of such person, or of the determination of his or her interest, all just allowances and deductions in respect of charges on such rents, annuities, pensions, dividends, moduses, compositions, and other payments being made; and that every such person, his or her executors, administrators, and assigns, shall have such and the same remedies at law and in equity for recovering such apportioned parts of the said rents, annuities, pensions, dividends, moduses, compositions, and other payments, when the entire portion of which such apportioned parts shall form part shall become due and payable, and not before, as he, she, or they would have had for recovering and obtaining such entire rents, annuities, pensions, dividends, moduses, compositions, and other payments if entitled thereto, but so that persons liable to pay rents reserved by any lease or demise, and the lands, tenements, and hereditaments comprised therein, shall not be resorted to for such apportioned parts specifically as aforesaid, but the entire rents of which such portions shall form a part, shall be received and recovered by the person or persons who, if this Act had not passed, would have been entitled to such entire rents; and such portions shall form a part, shall be received and recovered by the person or persons who, if this Act had not passed, would have been entitled to such entire rents; and such portions shall be recoverable form such person or persons by the parties entitled to the same under this Act in any action or suit at law or in equity." And by sect. 3., "the provisions herein contained shall not apply to any case in which it shall be expressly stipulated that no apportionment shall take place, or to annual sums made payable in policies of assurance of any description." The first section of this Act does not appear to provide for the case of a lease made by a tenant in fee to a tenant for life reserving rent; and therefore where such a lease, having been granted before the passing of the Act, determines by the death of the lessee for life between the two rent days, the rent is lost and cannot be apportioned. The Act, in this section, appears to contemplate two cases only, viz. the case of a lease determining on the death of a lessor, and the case of a lease determining on the death of the life for which the lessor was entitled. And even if the lease were granted after the passing of the Act, it may be doubted whether such a case falls within the 2d section, and whether that section is not confined to cases where the rent continues and is to be apportioned between the person, or his representatives, who was entitled when it began to accrue, and another person who has come in as remainder-man, or reversioner, or otherwise. InOldershaw v. Holt, 12 A. & E. 590. 4 Perr. & D. 307, S.C. the Court of Q.B. expressed an opinion that the Act did not apply to the case of a landlord determining the relation of landlord and tenant by his own act. It was held by Lord Cottenham that the Acto does not apply to rents payable by tenants from year to year, which have not been reserved by an instrument in writing. 4 Mylne & Cr. 484,In re Markby. And it has been since held by Wigram V.C. that the Act applies only to cases where the interest of the party entitled to the rents, or other periodical payments, determines by death or some other means. And, consequently, that rents are not apportionable between the real and personal representatives of tenant in fee. 3 Hare, 173,Browne v. Amyot.]