therein contained on behalf of the lessor or his assigns should cease, determine, and be utterly null and void, and that in any or either of such cases of forfeiture happening, it should be lawful for the lessor, &c. to re-enter the lessee died during the term, and by his will bequeathed the premises to his executors upon certain trusts, and the surviving executor having become bankrupt, it was decided that the lessor's right of re-entry thereupon accrued. Where a forfeiture of a lease accruing on the lessee's insolvency was waived, by acceptance of rent from the tenant falling due after his discharge under the Insolvent Act, it was decided(y) that the non-payment of a debt specified in the insolvent's schedule to be due to the lessor, was not a continuing insolvency, so as to constitute a new forfeiture after such rent had been received.

12. If a condition be annexed to the duration of a lease, so as to take effect by way of conditional limitation, the interest in the premises will determine by the happening of the event on which the tenancy is made to depend. A lease of a farm-house and land being granted for twenty-one years, if the lessee, his executors, &c. should so long continue to inhabit(z) and dwell with his and their family and servants in the farm-house, and he and they should so long continue actually to hold and occupy the farm, and not set, let, assign over, or otherwise depart with the premises or any part thereof; the lessee being declared bankrupt, his assignees sold the interest in the lease, and upon an ejectment by the landlord, it was determined not to be a case of forfeiture for breach of the condition, but that actual occupation was a conditional limitation annexed to the lease, and that the term ceased as soon as the lessee discontinued the occupation of the premises.

It has often been the subject of discussion how far property limited by will to a person for his life, and in case of his alienation with remainder over, can be affected by the bankruptcy or insolvency of the tenant for life. Lord Eldon observed, there was no doubt(a) that property might be given to a person until he should become bankrupt, but if an estate were given for life, the incidents to a life-estate could not be taken away, and that a disposition to a person until he should become a bankrupt and after his bankruptcy over, was quite different from an attempt to give to him for his life, with a proviso that he should not sell nor alien, but if the condition were so expressed as to

C.; Doe dem. Williams v. Davies, 6
Carr. & P. 614.

(y) Doe dem. Gatehouse v. Rees, 4 Bing. N. C. 384; 6 Scott, 161, S. C.

(z) Doe dem. Lockwood v. Clarke, 8 East, 185; Doe dem. The Duke of Nor

folk v. Hawke, 2 East, 481; Higginbo tham v. Holme, 19 Vesey, 88–93.

(a) Brandon v. Robinson, 18 Vesey, 429-433; Graves v. Dolphin, I Simons,

66.

amount to a limitation reducing the interest short of a life-estate, neither the object of the testator's bounty nor his assignees could take beyond the period limited. Where a bankrupt at the time of his bankruptcy was entitled to a life-estate in remainder, expectant on the death of a prior tenant for life, subject to a proviso that the person(b) entitled to the occupation of the premises should reside therein, and upon his neglect or refusal he should be considered as dead, and the grant to him as void, and that the lands should go to the person next in remainder: the bankrupt obtained his certificate, and the first tenant for life having died, it was ruled that the life-estate limited to the bankrupt passed to his assignees, and that the condition only extended to voluntary assigns. Sir Thomas Plumer(c), after referring to the observations of Lord Eldon(d) in Brandon v. Robinson, stated, that although it is better, when a limitation of this description is intended, to give the estate until bankruptcy or alienation, and not to give it, in the first instance, for life, and then prohibit the attempt to alien; yet it is to be considered that in a will any condition or modification may be annexed which does not offend against any rule of law, and that it is immaterial by what form of words the intention is executed, whether by a devise, until the devisee shall have charged or encumbered the property, or by a proviso, with a limitation over upon such an event, as each mode is equally valid and of the same effect.

Where an annuity charged on real estate was devised for life, and the testator directed that the annuity or any part thereof should not on any account be alienated, and if it should be alienated, then that it should cease(e) and determine, it was decided that the bargain and sale under a commission of bankrupt was an alienation which determined the annuity. An annuity given, by will, to testator's son for his life, or until he should sign an instrument agreeing to sell, charge, or dispose of the same or any part thereof, and in case of his son doing any such act, then that the annuity should cease and sink into the residue of the testator's estate, was held(ƒ) to be forfeited by the annuitant's taking the benefit of an Insolvent Act, which was considered to be voluntary and not compulsory.

(b) Ex parte Goldney, 1 Mont. & Chitty, 75.

(c) Wilkinson v. Wilkinson, 3 Swa. 515-522; 3 Wils. Cha. Ca. 47; Cooper, Cha. Ca. 259, S. C.

(d) Brandon v. Robinson, 18 Vesey,

433.

(e) Dommett v. Bedford, 3 Vesey,

149; 6 T. R. 684; and see The King v. Robinson, Wightw. 386-392; Cooper v. Wyatt, 5 Madd. 482-486.

(f) Shee v. Hale, 13 Vesey, 404; and see Gill v. Morgan, Smythe's C. B. Rep. 63; Hall v. Cooper, Smythe's C. B. Rep. 168.

Where the dividends of funded property were limited, by will, to a person, for his life, and after his decease to his children, and it was provided that the dividends should not be subject to any alienation or disposition, by sale, mortgage, or otherwise, by the tenant for life, and in case he should charge(g), or attempt to charge, or encumber the lifeestate, then that such mortgage, sale, or other disposition, should operate as a complete forfeiture thereof, and that the same should devolve on the person next in expectancy, it was determined, that upon the bankruptcy of the tenant for life, his life-estate passed to his assignees, because the prohibitory clause only contemplated voluntary acts.

A testator having bequeathed the dividends of certain Government stock to his nephew, for the maintenance of himself and his family, declaring that such dividends should not be capable of being charged with his nephew's debts, and that he should not have the power to charge, assign, anticipate, or encumber them; but if he should attempt to do so, or if the dividends(h), by bankruptcy, insolvency, or otherwise, should be assigned, or become payable to any other person, or applicable to any other purpose, then his interest therein should cease, and the stock should be held in trust for his children: the testator's nephew having taken the benefit of an Insolvent Act, it was determined that the nephew's insolvency operated as a forfeiture of his life-interest, and that the dividends belonged to his children. Under a devise in trust to apply the rents of certain real estates for the benefit of the testator's son for his life, in such manner as the trustees(i) should think proper, and that the testator's son should not have any power to sell, mortgage, or anticipate the rents, it was ruled that the son, having taken the benefit of an Act for the Relief of Insolvent Debtors, his life-estate passed to his assignees, as there was no clause in the will by which his interest was determined or limited over, in the event of his attempting to assign or encumber, or of his becoming bankrupt or insolvent.

The owner of property may, on its alienation, qualify the interest of his alienee by a condition to take effect on bankruptcy(j), but he cannot, by contract or otherwise, qualify his own interest in the property, by a similar condition, determining, or controlling it in the event of his own bankruptcy, to the delay of his creditors.

(g) Lear v. Leggett, 2 Sim. 479; 1 Russ. & M. 690, on appeal; The King v. Robinson, Wightw. 386.

(h) Yarnold v. Moorhouse, 1 Russ. & M. 364.

(i) Green v. Spicer, 1 Russ. & M. 395; Tamlyn, 396, S. C.; Piercy v. Roberts, 1 Mylne & K. 4; Brandon v. Robinson, 18 Vesey, 429; 1 Rose, 197, S. C.

(j) In the matter of Murphy, a Bankrupt, 1 Sch. & Lef. 44; In the matter of Meaghan, a Bankrupt, 1 Sch. & Lef. 179; Ex parte Cooke, 8 Ves. 353; Ex parte Young, Buck, 179; Higginbotham v. Holme, 19 Vesey, 88; Wilson v. Greenwood, 1 Swa. 481, and the note; and see Gill v. Morgan, Smythe's C. B. Rep. 6; Hall v. Cooper, Smythe's C.B. Rep. 168.

13. Ir a landlord accept rent(a), which became due after he had notice that a condition was broken, or if he distrain for rent in arrear, with full knowledge of the facts which might create a forfeiture, the tenancy will be affirmed by such recognition, and all prior breaches which might have entitled him to re-enter, will be waived. It was formerly considered that the landlord, by distraining for rent after a forfeiture incurred, affirmed the holding, as he had no right of distress, unless during a subsisting demise; but a landlord being authorized by the Irish Statute(b), 9 Anne, c. 8, to distrain at any time within six months after the determination of the demise, a distress made within that period is quite consistent with an avoidance of the lease(c). An action brought for rent accruing due subsequently to the alleged forfeiture, will also constitute a waiver. Upon an ejectment grounded on a clause of re-entry, it was ruled(d), that by bringing an action of covenant for non-payment of rent, which fell due after the day of the demise laid in the ejectment, the lessor had acknowledged that the lease was then in existence, and had thereby waived the forfeiture; but receipt

of rent by a landlord, after service of an ejectment for a condition broken, does not(e) waive the forfeiture.

Where a lease contains a proviso against alienation, or underletting without previous license in writing, if the landlord accept rent from an assignee, or undertenant, after notice of the assignment, or underlease, or if the landlord deal with the assignee, or undertenant(ƒ), by agreeing to give him a new lease, such acts will amount to a waiver of the forfeiture, although no actual license had been granted. Upon an ejectment for a forfeiture in carrying on a particular trade prohibited by the lease, the tacit acquiescence(g) of the landlord in lying by, and witnessing the prohibited acts for several years, will not constitute a waiver, but some positive act affirming the tenancy, such as the receipt of rent, will be requisite for that purpose. If, however, the tenant be permitted to lay out money in improvements with the landlord's knowledge(h), it will be matter for the consideration of a jury, whether the landlord did not consent to the alteration made in the premises for the purpose of carrying on such trade. So a lessee having covenanted to insure in the joint names of himself and of the lessor(h), insured in his own_name only, and Lord Tenterden(i) ruled, that if the conduct of the lessor was such as to induce a reasonable and cautious man to conclude he was doing all that was necessary, or required of him, by insuring in his own name to the amount which was proved, though there was no dispensation, or release from the covenant, yet the lessor could not recover for a forfeiture.

14. A material distinction exists between waiving the covenant or condition altogether, and the waiver(j) of a particular breach. In modern times it has been generally considered that a landlord may enter, and bring an ejectment for a continuing breach of a condition, notwithstanding the acceptance of rent after knowledge of the condition. broken; for otherwise, if a landlord once knew(k) that his premises were out of repair, and did not sue instantly, he could never after reenter for breach of covenant committed by their not being repaired.

(e) Doe dem. Morecraft v. Meux, 1 Carr. & P. 346; De Childon v. Tresk, Year Book, liber assis. fo. 298, A. case 5; Bro. Abr. Estoppel, pl. 146; Bro. Abr. Leases, pl. 19; Pennant's case, 3 Rep. 64, B.; Vin. Abr. Confirmation, C., pl. 4; Hartshorne v. Watson, 4 Bing. N. C. 178; 5 Scott, 506; 6 Dowl. Pr. C. 404.

(f) Doe dem. Weatherhead v. Curwood, 1 Harr. & Woll. 148; Doe dem. Sore v. Ekins, Ry. & Moo. 29.

(g) Doe dem. Sheppard v. Allen, 3

Taunt. 78.

(h) Doe dem. Sheppard v. Allen, 3 Taunt. 80; and see Hume r. Kent, 1 Ball & B. 554; Doe dem. Sore v. Ekins, Ry. & Moo. 29.

(i) Doe dem. Knight v. Rowe, Ry. & Moo. 343.

(j) Doe dem. Griffith v. Pritchard, 2 Nev. & M. 495, by Taunton, Justice; 5 B. & Adol. 781, by Patteson, J., S. C.

(k) Doe dem. Boscawen v. Bliss, 4 Taunt. 735; Fryett dem. Harris v. Jeffreys, 1 Esp. N. P. C. 393.