By public trustees to recover possession of foreshores. Landlord not bound to prove his title as against a tenant. What is a tenancy at will. and improving the open and common fields, ings, meadows, pastures, and other commonable lands and waste grounds within the several townships of M., W., B., and P. in the county of L. by a tenant on land adjoining belonging to a stranger, and then held by the tenant as part and parcel of the demised premises. (Lisburn, Earl of, v. Davies, L. R. 1 C. P. 259. See also Whitmore v. Humphries, L. R. 1 C. P. 1.) But if a defect of lessor's title appears in the lease, the tenant is not estopped from showing the defect. (Saunders v. Merryweather. 35 L. J. Ex. 115.) In Proof of tenancy, and termination thereof.]—Tenancy at will arises where a person has been let into possession pending a treaty for a purchase or lease (Right v. Beard, 13 East, 210), or under a void or imperfect lease or conveyance, or where, having been tenant for a term whichr has expired, he continues in possession negotiating for a new one. this case the tenancy is determined by either a formal demand of pos session or by any act inconsistent with a tenancy at will, such as granthow ended. ing a lease to another to commence at once, and giving him possession (Wallis v. Delmar, 29 L. J. Ex. 276), or an entry by the landlord and ar exercise of ownership by him. (Turner v. Bennett, 9 M. & W. 643.) How it arises and A yearly tenancy, A tenancy from year to year is shown, in the absence of other evidence. by payment and receipt of yearly rent. If a person having a lease void how created by statute, or an agreement for a lease, enter into possession and pays and how rent at so much a year, this makes him a tenant from year to year, on terminated. such terms of the void lease or of the agreement as are not inconsistent with such a holding. (See notes Doe d. Rigge v. Bell, 2 Sm. L. Cas. 7th ed. 96.) The same presumption holds where a corporation is either landlord or tenant, and the lease is void as not being by deed. (Ecclex, Com. v. Merral, L. R. 4 Ex. 162.) If a tenant holds over after determination of his term, and pays rent, the presumption is that he holds from year to year, even though the rent is increased by agreement. (Hyatt v. Griffiths, 11 Q. B. 505.) This form of tenancy is terminated by six months' notice. to be given six clear months before the termination of any whole year from its commencement. Thus, if it commence on the 25th December. 1870, notice to terminate it at the end of the first year must be given six months before 25th of December, 1871, and so on. So that it must continue one year at least, and a number of whole years afterwards. As to what constitutes a good notice to quit, see Woodfall's Landlord and Tenant, 11th ed. 300-323. How tenancies for years created. Where landlord proceeds at com mon law, strict Longer tenancies are generally created by lease or agreement. Leases for over three years must be by deed under the joint effect of the Statute of Frauds and the 8 & 9 Vic. c. 106. For full information as to the creation, &c., of tenancies, see Woodfall's Landlord and Tenant, 11th ed. 116. Tenancies under leases or agreements are terminated by effluxion of time, notice in certain cases, and forfeiture for non-payment of rent or by breach of covenant or otherwise. In cases of forfeiture, the forfeiture must, in the case of an assignee of the reversion suing have accrued after the assignment, as the right of entry does not pass thereby. (Hunt v. Bishop, 22 L. J. Ex. 337; and see Ïunt v. Remnant, 23 L. J. Ex. 135, Ex. Ch.) Such a right, however, passes to the devisee of the reversion under 1 Vict. c. 26, s. 3, and therefore the same doctrine would not hold in his case. If the landlord proceeds under the common law as opposed to the statutory remedy mentioned in the next paragraph, he must prove and the statement of claim must show that all the ceremonies of the common law have been strictly complied with, as the demand by the landlord or his agent of the precise rent payable to save a forfeiture on the exact day on which it became due, and payable at a proper place of payment, and at a trustees to recover pos 2. Under and by virtue of the said Act certain foreshores and By public banks of the River Trent, in the said county, and the right to the possession thereof, became and are vested in the plaintiffs as session of foreshores. convenient hour before and at sunset. (1 Wms. Saund. 278, et seq. (16); compliance and see Barry v. Glover, 10 Ir. C. L. R. 113, C. P.) Such formalities with all may, however, be dispensed with by express stipulation. (Phillips v. formalities Bridge, L. R. 9 C. P. 48.) in requisite. Statutory remedy given to landlords to recover Under the Common Law Procedure Act, 1852, s. 210, if half a year's rent is in arrear, and the landlord has a right by law to re-enter for non-payment, he may, without any formal demand or re-entry, serve his writ (the manner is prescribed by the section), and if it appear the case of judgment by default, by affidavit or on the trial, that six months' rent was due before service, and that no sufficient distress was then to be found on the premises, and that the lessor had power to enter, then he will be entitled to judgment and execution as if the rent had been formally demanded, and the landlord had re-entered. Proceedings property. under this section may, however, be stopped by the tenant tendering or paying into Court the rent and costs. (See sect. 212.) It frequently becomes an important question whether a landlord does not by his conduct waive a forfeiture. There have been numerous decisions on this question, for which the reader is referred to Woodfall's Landlord and Tenant, 11th ed., 294. Taking proceedings in ejectment amounts to a final election by the lessor to avail himself of the forfeiture. Hence the receipt of rent that would have accrued subsequent to the forfeiture would not be a waiver (Doe d. Morecraft v. Meur, í C. & P. 346); nor a distress for such rent (Grimwood v. Moss, L. R. 7 C. P. 360); nor the delivery of particulars of breaches complaining of non-payment of rent, together with other breaches. (Toleman v. Portbury, L. R. 6 Q. B. 245; aff. Ex. Ch. L. R. 7 Q. B. 344.) As to relief from forfeiture, see 22 & 23 Vict. c. 35, ss. 4, 6; and Common Law Procedure Act, 1860, ss. 1, 2, 4—11. possession of their What amounts to a waiver of a right of re-entry. Suits by heirs-at-law.]-When the plaintiff in an action for the recovery of land is an heir-at-law, he must aver and be prepared to prove his descent through lawful marriage from the purchaser (as defined by Essential 3 & 4 Wm. 4, c. 106, s. 2), and that all intermediate heirs between himself and the ancestor under whom he claims are dead without issue. In such suits questions of births, marriages, deaths, and identity constantly come into controversy. It is not conceived to be within the scope of this work to dwell on these subjects, and in any suit of this kind recourse must by had to the several valuable works in which they will be found discussed. Suits by devisees.]—A devisee, in order to establish his claim, must prove 1. That the testator was entitled in fee. averments where heirat-law is plaintiff. 2. The regular execution of the will, or in certain cases the grant of Where deprobate under 20 & 21 Vict. c. 77, s. 61. 4. The determination of the estates (if any) limited prior to the limi 3. The death of the testator; and tation in his favour. In the case of copyholds visee is plaintiff. 1. The seisin of the testator, of which his admittance and actual pos- Where desession would be the best evidence. 2. The surrender by him to the use of his will in the case of testators visee of copyholds is plaintiff. By public trustees to recover possession of foreshores. such trustees as aforesaid; that is to say (amongst other things), certain banks and foreshores, in the said county lying on the east side of the said river, and bounded on the east by certain Where devisee of leaseholds is plaintiff. Where executors, &c., are plaintiffs. Common defences to actions by devisees. Mortgagee suing to recover the mortgaged premises. 4. The devisee's own admittance. In the case of devise of leaseholds, the plaintiff must prove 1. The title of the devisor, unless the defendant is estopped from disputing it. (See ante, 515-516.) 2. The probate of the will. 3. The assent of the executor to the bequest or devise. In the case of executors and administrators, the plaintiff must show1. The leasehold title of his testator. 2. The testator's death. 3. The probate or grant of administration. The term vests in an executor at the death of the testator, and the executor may therefore recover on a claim dated between the time of the testator's death and the probate. Com. Dig. Adm. (B. 10). Administration, when granted, relates back for some purposes to the intestate's death. In Ireland the doctrine of relation was established for the purpose of ejectment. (Patten v. Patten, Alc. & Nap. 493.) By 3 & 4 Wm. 4, c. 27, administration is made to relate back to death for the purposes of the Act. (See also title Executors and Administrators.) The following are the usual defences to suits for the recovery of land by devisees, viz. :— 1. A disclaimer by the devisee. 2. Fraud and undue influence exercised over the testator. 4. Incapacity from idiocy, insanity, or such mental aberration as 5. Revocation of will by cancelling, burning, tearing, or destroying animo revocandi. 6. Revocation by subsequent will, making a disposition of the property to another person. Suits for recovery of possession by mortgagees.]-Where the mortgagor is in possession after default, and the action is brought against him, the mortgagee has only to prove the execution of the mortgage, a demand of possession being in such case unnecessary. (Doe d. Roby v. Maisey, 8 B. & C. 767 ; and see note to Keech v. Hall, 1 Sm. L. Cas. 7th ed. 579.) If a third person is in possession by a title prior to the mortgage, then the mortgagee is in the position of an assignee of the reversion, and must show a title to oust him, as in the case of a tenant from year to year it must be shown that he received a regular notice to quit. A railway company having power to mortgage the undertaking with all tolls, does not enable a mortgagee under that power to recover the railway. (Myat v. St. Helen's Rail. Co., 2 Q. B. 364; and see Gardner v. Lond., Chat., & Dorer Rail. Co., L. R. 2 Ch. 201, 385.) A mortgagee of turnpike tolls cannot recover in ejectment, unless the power to mortgage includes land such as toll-houses and gates. (Mytton v. Gilbert, 2 T. R. 169.) As to suits for recovery of such property under 3 Geo. 4, c. 126. see Thompson v. Lediart, 4 B. & A. 137; Watton v. Penfold, 3 Q. B. 757. Suit by execution creditor for recovery of land.]-The plaintiff must prove the judgment, the elegit, and the inquisition or return thereon. (B. N. P. 104.) If a third person be in possession of the land extended, lands of the defendant, being certain old inclosures or lands and grounds specified in the schedule annexed to an award made under and in pursuance of the said Act, and numbered in the said schedule as follows 3. The defendant has taken and retains possession of the banks and foreshores specified in the last paragraph hereof, and wrongfully withholds the same from the plaintiffs. The plaintiffs (as such trustees) claim possession of the said banks and foreshores. Statement of Defence. By public recover possession of trustees to foreshores. 1. The defendant does not admit the 1st paragraph of the Defence. statement of claim. 2. As to the 2nd paragraph of the statement of claim the defendant denies that the foreshores and banks specified in the said 2nd paragraph, or any part thereof, became or are or is vested in the plaintiffs as such trustees as in the statement of claim mentioned, or otherwise. 3. The defendant does not admit that he has or that he retains possession of the banks and foreshores specified in the said 2nd paragraph of the statement of claim or of any part thereof. 4. The defendant says that even if the said foreshores and Statute of banks or any part thereof were or was at any time heretofore Limitation. vested in the plaintiffs, or in any person under whom they claim it is sufficient on the part of the plaintiff to prove a primâ facie title in See Order XIX. r. 15, and ante, pp. 71-2, for rule dispensing with necessity of defendant in possession of land pleading his title in an action against him for the recovery of the land. Where execution creditor is plaintiff. Where a parson is plaintiff. Recovery of the plaintiffs' right to maintain this present action, is barred by possession the Statute 3 & 4 Wm. 4, c. 27. of fore shores. By lessor against lessee for Claim by Lessor against Lessee to re-enter on the demised Land for Breaches of Covenant. day of 1. On the the plaintiff, by deed, let to the defendant a house and premises, No. 52, Street, in the city breaches of of London, for a term of twenty-one years, from the day of, at the yearly rent of £120, payable quarterly. covenant. By lessor against assignee of the lease for breaches of covenant. 2. By the said deed, the defendant covenanted to keep the said house and premises in good and tenantable repair. 3. The said deed also contained a clause of re-entry, entitling the plaintiff to re-enter upon the said house and premises, in case the rent thereby reserved, whether demanded or not, should be in arrear for twenty-one days, or in case the defendant should make default in the performance of any covenant upon his part to be performed. 4. On the 24th June, 187-, a quarter's rent became due, and on the 29th of September, 187-, another quarter's rent became due; on the 21st October, 187-, both had been in arrear for twenty-one days, and both are still due. 5. On the same 21st of October, 187-, the house and premises were not, and are not now in good or tenantable repair, and it would require the expenditure of a large sum of money to reinstate the same in good and tenantable repair, and the plaintiff's reversion is much depreciated in value. (3.) £ (4.) £ damages for the defendant's breach of his covenant to repair. for the occupation of the house and premises, from the 29th of September, 187-, to the day of recovering possession. Action by Lessor against Assignee of the Lease to recover Possession on Account of Forfeiture of Lease by Defendant. 1. The plaintiff is the owner in fee simple and lessor of certain premises in St. G., being the premises demised in the lease hereinafter mentioned. 2. By indenture, dated September, 185-, the plaintiff |