If a lessor perceives a continued act of forfeiture, there is no waiver without some distinct act on his part; but if he permits the tenant to lay out money in improvements it will be a question for the jury to say whether such evidence would amount to proof of his sanction and concurrence. So, where a landlord finding the premises out of repair, gave the tenant three months' notice to repair according to his covenant, it was held in the case of Doe d. Morecroft v. Meux (4 B. & C. 606), that he could not maintain ejectment for a forfeiture until three months had elapsed, and also that the notice was a waiver of the breach of the covenant to repair.

But there can be no doubt that an act of forfeiture, however clear, may be waived by a distinct act of the lessor, as, for instance, by accepting or distraining for rent, or bringing an action for the payment of rent, when it has accrued due since the act of forfeiture was complete. But it is obvious that this rule will not apply, except in cases where the landlord knew that the act of forfeiture had taken place, unless, indeed, the condition be of such a nature as to be equally within the knowledge of both lessor and lessee. The act relied on as amounting to a waiver is matter of evidence only, as to the intent and meaning and knowledge with which it was done, to be left for the opinion of the jury under the whole circumstances of the case. A distress for rent will only amount to an acknowledgment of a tenancy up to the day of the distress, and a waiver of any forfeiture up to that time.*

* Woodfall, Landlord and Tenant.

Re-entry. We proceed to consider how the landlord may exercise his right to put an end to the lease after an act of forfeiture. If the act of forfeiture be the non-payment of rent, an actual demand of the rent must be made previously to commencing an action of ejectment for the exact amount due, and on the very day when it becomes payable, and with other formalities which it is difficult to fulfil accurately. But if the lease contains a power of reentry for non-payment without further demand, after the rent is in arrear a certain number of days, then the landlord may maintain an action of ejectment without an actual re-entry or demand of rent. And under the statute 4 Geo. 2. c. xxviii. s. 2, the landlord cannot maintain ejectment for non-payment of rent, if there be a sufficient distress on the premises demised. It is also to be observed that an actual entry upon an estate generally is an entry for the whole, and if it be for less it should be so defined at the time. It is not absolutely necessary that there should be an actual entry by the grantor to put an end to the estate granted. The object may be effected by the entry of persons claiming interests or authority under the grantor.

Relief in Equity.-Cases of forfeiture are jealously considered by courts of law and equity. Formerly a lessee might be relieved from the forfeiture by an offer of the rent at any time, even after an action of ejectment had been brought. But by the statute 4 Geo. II. c. xxviii., it is enacted that, if the tenant shall suffer judgment and execution without paying the rent and arrears with costs, and without filing any bill for

relief in equity within six calendar months after the execution, he shall be barred from relief. But if at any time before the trial he shall pay, or tender the rent and costs, the ejectment shall be stayed.

The general rule is, that relief will be given against forfeiture by breach of covenant by the lessee when compensation can be made. And as against a clause of re-entry (that is, the right to eject) for breach of a certain class of covenants, relief in equity is not limited to mere cases of accident, but is granted even against negligence and voluntary acts. But there is no relief against a forfeiture by breach of a covenant not to assign without a licence, nor by breach of a covenant to keep premises insured. A form of proviso will be found in the Appendix which places re-entry on a very fair and reasonable basis. The author is indebted for this useful form to D. Randall, Esq., of Neath, who is conversant with the letting of mineral property.

For a great number of years it has been considered to be law that if a lessee may not, by the terms of his lease, assign his interest without a licence so to do, yet, if he did so obtain a licence to assign once, the condition was gone, and the assignee might again assign without licence. This difficulty has now been put an end to by the legislature. It is enacted by the 22 & 23 Vict. c. xxxv. s. 1, that ". "where any licence to do any act which without such licence would create a forfeiture or give a right to re-enter, under a condition or power reserved in any lease, &c., shall, after the passing of the Act, be given to any lessee or his assigns, it shall, unless otherwise expressed, extend only to the permission actually given, or to any specific

breach of any proviso or covenant, or to the actual assignment, under lease, or other matter thereby specifically authorised to be done, but not so as to prevent any proceeding for any subsequent breach (unless otherwise specified in such licence); and all rights under covenants and powers of forfeiture and re-entry in the lease contained shall remain in full force and virtue as against any subsequent breach of covenant or condition, &c., not specifically authorised or made dispunishable by such licence, &c., in the same manner as if no such licence had been given, and the condition or right of re-entry shall remain as if such licence had not been given, except as to the particular matter authorised to be done."

By the 23 & 24 Vict. c. xxviii. s. 6, it is enacted that "where any actual waiver of the benefit of any covenant or condition in any lease on the part of any lessor, or his heirs, executors, administrators, or assigns, shall be proved to have taken place after the passing of this Act, in any one particular instance, such actual waiver shall not be deemed to extend to any instance, or any breach of covenant or condition, other than that to which such waiver shall specially relate, nor to be a general waiver of the benefit of such covenant or condition, unless an intention to that effect shall appear."

CHAP. III.

COVENANTS IN LEASES, ETC.

QUESTIONS have frequently arisen upon conditions or covenants inserted in leases of coal mines binding the lessees to work the mines as far as they ought to be worked. The result of the cases seems to be the equitable ruling, that such stipulations are sufficiently complied with if the lessees have bona fide made sufficient experiments to show that there are no such minerals, or that they are not fairly workable.

Covenants to work the Coal.-In the case of Hanson v. Boothman (13 East, 22) a lessee covenanted that he would forthwith proceed to sink for coal, so far as ought to be accomplished by persons acquainted with the nature of collieries, and as in such cases was usual, and also to erect certain engines. Disputes arose, which were referred to arbitrators, who awarded that the lessees had not performed their covenants, inasmuch as they had not sunk for coal in the manner mentioned in the lease; and the said arbitrators proceeded to define that the lessees should pay a certain sum of money, and work the mines and erect the engines. They accordingly did so, but afterwards desisted, and an action was brought by the landlord, to