if a clergyman is allowed to officiate without the necessary licence (ƒ). A covenant to make it appear by a good and certain certificate that the cestui que vie was living is not satisfied by a certificate from which a jury might or might not infer that he was alive (g). A covenant to allow the lessor to inspect the premises at convenient times is not broken by a refusal to admit him to some rooms when he has not given notice of his coming (h). A covenant by a lessee to supply and sell to the lessor lime at all times and seasons of burning lime, means the regular known seasons of burning lime, and not just when the lessee chooses to do so (i). A proviso for re-entry, if the lessee be convicted of an offence against the game laws, does not create a forfeiture if the lessee be convicted of the offence of shooting without a licence (k). 107 CHAPTER IX. WAIVER OF FORFEITURE. What is meant by waiver of IF a landlord, when a forfeiture has been incurred for condition broken or for breach of covenant, once waives such forfeiture, he precludes himself from afterwards forfeiture. taking advantage of it. The common expression, "waiving a forfeiture," though sufficiently correct for most purposes, is not strictly accurate. When a lessee commits a breach of covenant upon which the lessor has a right of re-entry, he may elect to avoid or not to avoid the lease; and he may do so by deed or by word; if with notice, he says under circumstances which bind him, that he will not avoid the lease, or he does an act inconsistent with avoiding it, he elects not to avoid the lease; but if he says he will avoid it, or does an act inconsistent with its continuance, he elects to avoid it. In strictness, therefore, the question in such cases is, has the lessor, having notice of the breach, elected not to avoid the lease, or has he elected to avoid it, or has he made no election (a). In some early cases a distinction was drawn between cases where on breach of condition or covenant the lease is to be void, and cases where it is only to be voidable (b). (a) Croft v. Lumley, 6 H. L. C. 672, 705, per Bramwell, B. (b) Co. Lit. 215; Anon. 3 Salk. 4; Pennant's case, 3 Co. Rep. 64a; Browning & Beston's case, Plowd. 130; Finch v. Throgmor- Leases void condition, or voidable only. on breach of What amounts to a waiver. Acceptance of rent. It was said that in the former case no act of the landlord could operate as a waiver of a forfeiture because the lease became void immediately upon the breach of covenant or condition (b). These cases have never been expressly overruled, but the above distinction has, at any rate, ceased to have any real importance owing to the way in which forfeiture clauses have, whenever possible, been construed by the courts in modern times (c). "In a long series of decisions the courts have construed clauses of forfeiture in leases declaring in terms, however clear and strong, that they shall be void on breach of conditions by the lessees, to mean that they are voidable only at the option of the lessors" (d). Any positive act done by a landlord, after a forfeiture has been incurred, with knowledge thereof, whereby he acknowledges that the tenancy existed at a date later than that on which the forfeiture was incurred, is an election by him to treat the lease as subsisting, and operates as a waiver of the forfeiture (e). Acceptance of rent accrued due after the forfeiture is such an act (f). If rent is accepted from a person who is not the tenant, it is either equivalent to acceptance of (b) See last note. (c) Doe v. Bancks, 4 B. & Ald. 401; Rede v. Farr, 6 M. & S. 121; Roberts v. Davey, 4 B. & Ad. 664; Arnsby v. Woodward, 6 B. & C. 519; Doe v. Birch, 1 M. & W. 402; Bowser v. Colby, 1 Hare, 109; Dakin v. Cope, 2 Russ. 170 ; Davenport v. Reg. 3 App. Cas. 115; Victoria v. Ettershank, L. R. 6 P. C. 354; Re Tickle, 3 M. B. R. 126. (d) Davenport v. Reg. 3 App. Cas. 115, 128. See p. 59. (e) Marsh v. Curteys, Cro. Eliz. 528; Harvie v. Oswel, id. 553, 572; Doe v. Rees, 4 B. N. C. 384; Doe v. Pritchard, 5 B. & Ad. 765; Pellatt v. Boosey, 31 L. J. C. P. 281; Price v. Worwood, 4 H. & N. 512; Victoria v. Ettershank, L. R. 6 P. C. 354; Davenport v. Reg., 3 App. Cas. 115; Finch v. Underwood, 2 Ch. D. 310; see Ex parte Newitt, 16 Ch. D. 522, 533. (f) Croft v. Lumley, 6 H. L. C. 672; Davenport v. Reg., supra. rent from the tenant himself, or else is an eviction of the real tenant, and either way operates as a waiver, for the landlord cannot hold the tenant responsible for breaches of covenant occurring during the time he has kept him out of possession (g). Acceptance of rent, if it is paid as rent, operates as a waiver notwithstanding any protest that it is not received as rent or any declaration that it is accepted without prejudice to the right to re-enter (h). Acceptance of rent operates as a waiver of all forfeiture incurred up to the time such rent became due (i); but subsequent acceptance of rent due prior to the forfeiture is no waiver (k). Acceptance of rent after the day it became due, is no waiver of a forfeiture incurred by nonpayment of that rent when it became due (l). rent. A distress for rent operates as a waiver of every forfeiture Distress for incurred up to the time it is made (m); the statute 8 Anne, c. 14, which extends the right of distress for six months after the determination of a lease, has been said. not to apply to a determination by forfeiture (n); and, even if it did apply, the distress would not be a waiver, because the lease would not have been determined, unless the landlord had by some unequivocal act elected to avoid it, in which case no subsequent act would be a waiver (0). A distress is a waiver of forfeiture for non-payment of the (g) Pellatt v. Boosey, supra; Price v. Worwood, supra. (h) Croft v. Lumley, 5 E. & B. 648; Davenport v. Reg., 3 App. Cas. 115, 131; Griffin v. Tomkins, 42 L. T. 359; Strong v. Stringer, 61 L. T. 470. (i) Pellatt v. Boosey, 31 L. J. C. P. 281. (k) Green's case, Cro. Eliz. 3; Marsh v. Curteys, 2 Cro. Eliz. 528; Price v. Worwood, 4 H. & N. 512; Cronin v. Rogers, 1 C. & (1) Green's case, supra. (m) Ward v. Day, 4 B. & S. (n) Doe v. Williams, supra ; Other acts which operate as a waiver. rent in respect of which it is made (p). When proceedings are taken under sect. 210 of the C. L. P. Act, 1852, an insufficient distress is not a waiver, since under that Act the landlord must prove that there was no sufficient distress upon the premises (q). A distress only waives forfeitures incurred up to the time it is made, and none subsequent thereto, though possession be kept under the distress (r). A distress made and not submitted to by the tenant, but replevied by him, is no waiver (s). Other acts which operate as a waiver are: suing for (t), or making an unqualified demand of (u), rent accrued due subsequent to the forfeiture; a receipt given for prior rent describing the tenant as being tenant at the time it was given (x); an allegation, in an action for damages for breach of covenant, that the breach occurred during the existence of the term (y); giving a special notice to repair in accordance with the terms of the special covenant, which waives all breaches up to the expiration of the notice (2), though a general notice to repair is not a waiver (a); negotiations or an agreement for a new lease or licence on the expiration of the old one in respect of (p) Green's case, Cro. Eliz. 3 ; Ward v. Day, supra. (q) Brewer v. Eaton, 3 Doug. (r) Doe v. Johnson, supra. 178. (t) Dendy v. Nicholl, 4 C. B. N. S. 376; Roe v. Minshall, B. (u) Doe v. Birch, 1 M. & W. 402, 408; Blyth v. Dennett, 13 C. B. 178; Dendy v. Nicholl, supra. (x) Green's case, Cro. Eliz. 3; cited 1 M. & W. 406. (y) Pellatt v. Boosey, 31 L. J. C. P. 281. (z) Doe v. Meux, 4 B. & C. 606; Doe v. Lewis, 5 A. & E. 277. (a) Roe v. Paine, 2 Camp. 520; Few v. Perkins, L. R. 2 Ex. 92. |