shall have a new right when his

3&4 Will. 4, interest, in reversion or remainder, and the land or rent c. 27, s. 4. shall not have been recovered by virtue of such right, the right to make an entry or distress, or bring an action to recover such land or rent, shall be deemed to have first estate comes accrued, in respect of such estate or interest, at the time when the same shall have become an estate or interest in possession, as if no such forfeiture or breach of condition had happened (r).

into posses

sion.

When right

remainder

man.

(r) Though a remainderman expectant on an estate for life or of entry to be years, to whom a right to enter, or bring an ejectment, is given by exercised by the forfeiture of the tenant for life or years, may take immediate advantage of a forfeiture, yet he is not bound to do so; therefore, if he pursues his remedy within his time after the remainder attached, it will be sufficient, nor can the Statute of Limitations be insisted on against him, for not coming within twenty years after his title first accrued by the forfeiture. (1 Ves. sen. 278. See Doe d. Allen v. Blakeway, 5 Carr. & P. 563.) So where a testator, having made a lease for years of an estate, with a clause of re-entry on nonpayment of rent, devised it, and after his death his heir received the rent during the lease, (being a period of more than twenty years,) without any steps having been taken by the devisee to recover the possession; it was held, that the devisee was not barred, for he could not have entered during the lease; and although a forfeiture had been committed, he was not obliged to take advantage of it. (Doe d. Cooke v. Danvers, 7 East, 299.) So also strangers to fines, having different and distinct rights by several titles accruing at different times, were allowed five years to avoid a fine after the accruing of each title; (Cruise, Dig. tit. XXXV. ss. 29, 34. See 1 Wms. Saund. 319, a. n. ;) it was determined, that where a fine was levied by a tenant for years, advantage must be taken by the person who is reversioner at the time the fine was levied, and that he could not assign his right of entry, nor enter himself after having parted with his reversion. (Fenn v. Smart, 12 East, 444.)

Entry for forfeiture of copyholds.

The lord of a manor is barred by the Statute of Limitations from entering for a forfeiture after twenty years. (Witton v. Peacock, 3 M. & Keen, 325.) If a copyholder made a lease of his copyholds contrary to the custom of the manor, and the lord died before his entry or seizure for the forfeiture, the reversioner or remainderman could never take advantage of the forfeiture done or committed before their time; (Lady Montagu's case, Cro. Jac. 301; Co. Cop. s. 60; Doe d. Tarrant v. Hellier, 3 Term Rep. 162;) unless the act of forfeiture destroys the estate. (3 Term Rep. 173.) As to the forfeiture of Copyholds, see Shelford on Copyholds, pp. 148-172; Chamberlain v. Drake, 2 Sid. 8; and for waste, Eastcourt v. Weeks, Salk. 186; Lutw. 799; Bird v. Kirkby, 1 Mod. 199; Carter, 237; Gilb. Tent. 249. But the lord may seize copyhold land quousque in virtue of a right which accrued to the preceding lord on default of the heirs coming in to be admitted, although he be devisee, and not the heir of the preceding lord; but, to entitle him to make such seizure, there must be three proclamations made at three consecutive courts. (Doe d. Bover v. Trueman, 1 B. & Ad. 736.) The admittance of a copyholder, after a forfeiture incurred by levying a fine, would be a waiver, and any act equally solemn will have the same effect. (3 Term Rep. 172.) M., after a devise of his property real and personal to P., purchased lands in fee, and procured an assignment of an outstanding term of years to P. as his trustee. On the death of M., without republishing his will, a moiety of the fee descended to P.'s wife as

coparcener with others; but P., thinking himself entitled under the 3&4 Will. 4, will, entered into and took the profits of the whole to his own use, c. 27, s. 4. and afterwards joined his wife in a feoffment and fine sur cognizance de droit come ceo, with proclamations: it was held, that the term was not merged by the seisin of P. in right of his wife; that the feoffment and fine were not void, but operated as a disseisin and forfeiture of the term, of which advantage might be taken by entry within five years either after forfeiture or after the expiration of the term; that in the mean time the term might be treated as still subsisting, for the purpose of entitling a plaintiff in ejectment to recover on a demise of P.'s personal representatives. (Doe d. Blight v. Pett, 11 Ad. & Ell. 842; 4 P. & Dav. 278.)

In cases of conditions of re-entry, there is a difference between Entry when leases for lives and leases for years, and, with respect to the latter, necessary. there is also a difference between them, which arises entirely from the manner in which the condition of re-entry is expressed in the lease. As to leases for lives, it is held that, if the tenant neglects or refuses to pay his rent after a regular demand, or is guilty of any other breach of the condition of re-entry, the lease is only voidable, and therefore not determined until the lessor re-enters, that is, brings an ejectment for the forfeiture; though the clause of the condition should be, that for the nonpayment of rent or the like, the lease shall cease and be void. For it is a rule, that where an estate commences by livery it cannot be determined before entry. (Plowd. 135, 136.) And in the case of a freehold lease, entry is requisite before bringing an ejectment for a forfeiture. (Co. Litt. 218; 2 Rep. 53 a; 4 Tyrw. 625.)

An actual entry is not necessary to avoid a mere licence to dig mines, but by analogy to what is required to be done in order to determine a freehold lease, which, by the terms of it, is to be void on the nonperformance of covenants, it seems to follow, that to put an end to such a licence, the grantor must give notice of his intention to do so after a breach of a condition, which notice would be equivalent to an entry or claim by the grantor of a freehold estate to which a condition is annexed. (Roberts v. Davey, 4 B. & Ad. 664. See Doe v. Wood, 2 B. & Ald. 724.) If the lessor, after notice of the forfeiture, which is a material and issuable fact (3 Rep. 64 b, 2 T. R. 430, 431), accepts rent which accrued due after, or does any other act which amounts to a dispensation of the forfeiture, the lease, which was before voidable, is thereby affirmed. But the dispensation with a forfeiture for a breach of a condition does not take away the right of entry for a subsequent breach. (Roe v. Harrison, 2 T. R. 425; Macher v. Foundling Hospital, 1 Ves. & B. 191; Doe v. Bliss, 4 Taunt. 725.) With respect to leases for years, the necessity of an entry depends upon the wording of the condition. If the words be, that upon the doing of such an act the reversioner may enter, there must be an entry to avoid the estate; but if the estate be granted upon condition that if the grantee do such an act the estate shall thereupon immediately cease and determine, there no entry is necessary. (12 East, 448.) In the first case the lease is only voidable, and may be affirmed by the acceptance of rent, or other act, if the lessor had notice of the breach of the condition at the time. (Plowd. 133; Co. Litt. 215, a; 3 Rep. 64, a, 65; Cowp. 804.) A distress made by a landlord on the assignee of his lessee is a waiver of a forfeiture incurred by a prior breach of covenant; but if there be a continuing breach, the landlord is not precluded from taking advantage of it for a time subsequent to the distress. (Doe d. Flower v. Peck, 1 Barn. & Ad. 428.) But where a lease for years is made with a condition that for nonpayment of the rent, or the like, the lease shall be null and void, if the lessor makes a legal demand of

3&4 Will.4, the rent, and the lessee neglects or refuses to pay, or is guilty of any c. 27, s. 4. other breach of the condition of re-entry, the lease is absolutely determined, and cannot be set up again by acceptance of rent due after

Notice of condition.

the breach of the condition, or by any other act. (Cowp. 804. See 1 Wms. Saund. 287 c, n. 16.)

It was held, that a condition of re-entry on breach of covenants in a lease could only operate during the continuance of the lease; when that was determined the proviso was gone, and the reversioner, having never been in possession by right of re-entry for the condition broken, could not take advantage of it, and that the lessee, who had sown the land, was entitled to emblements. (Johns v. Whitley and others, 3 Wils. 127.)

A lessor has a right to make the estate of his lessee conditional, and the assignee of such an estate takes it subject to the condition, and liable to be divested by the breach of it. It is immaterial in a case in which the lessor, and not the assignee of the reversion, is the real plaintiff, whether the condition is for the performance of some covenant which runs with the land, or one which is wholly collateral; upon the breach of either species of covenant, the estate ceases when the lessor chooses to take advantage of his right of re-entry. (Doe d. Flower v. Peck, 1 Barn. & Ad. 436, 437.)

Where a party is really ignorant of the existence of an instrument in which the condition is contained, and where he would have a good title if there were no such instrument, a neglect of the terms of the condition will not subject him to a loss of the estate, and the party entitled to avail himself of the condition must take care to make it known to the person who was to comply with it. (France's case, 8 Rep. 89 b; Shep. T. 148; Mallon v. Fitzgerald, 3 Mod. 28; Skinn. 125; Doe d. Kenrick v. Lord W. Beauclerk, 11 East, 657.) An heir at law, to whom a devise is made upon condition, is not liable to lose his estate by a breach of the condition, unless he has notice of the devise which contains it; and the onus of proving that the notice has been given, lies upon the party entitled to the benefit of the breach of the condition. (Doe d. Taylor v. Crisp, 1 P. & Dav. 37; 8 Ad. & Ell. 779; 2 Jur. 943.)

Reversioner to have a new right.

Reversioner.

V. Provided also, that a right to make an entry or distress or to bring an action to recover any land or rent shall be deemed to have first accrued, in respect of an estate or interest in reversion, at the time at which the same shall have become an estate or interest in possession by the determination of any estate or estates in respect of which such land shall have been held, or the profits thereof or such rent shall have been received, notwithstanding the person claiming such land, or some person through whom he claims, shall, at any time previously to the creation of the estate or estates which shall have determined, have been in possession or receipt of the profits of such land, or in receipt of such rent (s).

(s) By this section the remainderman is not bound to enter for a forfeiture until his estate fall into possession, nor is the right affected by a possession by him, or any person through whom he claims, previously to the creation of the estate which shall have determined.

But it will be seen by the 20th section (post), that several rights in 3&4 Will. 4, the same person may, contrary to the rule which previously pre- c. 27, s. 5. vailed, be barred without any new allowance.

Administrator.

trator to

the estate

VI. That for the purposes of this act an administrator An adminisclaiming the estate or interest of the deceased person of claim as if whose chattels he shall be appointed administrator, shall he obtained be deemed to claim as if there had been no interval of without intime between the death of such deceased person and the terval after grant of the letters of administration (t).

death of de

ceased.

limitations

(t) In the case of intestacy, it had been decided that, as to all Old rule that rights occurring after the death of the intestate, the statutes of limi- statute of tation only began to run from the grant of administration. Hence ran from a right to a chattel interest in lands might have been kept alive, grant of adnotwithstanding adverse possession, to the expiration of the term, ministration. however long, and instances had occurred of serious practical inconvenience from that state of the law. The object of this clause of the act is to make the period of limitation with respect to chattel interests in land begin to run from the time when the right of entry arose and might have been acquired by taking out letters of administration. The next of kin and creditors of the intestate will have no just cause of complaint, if for twenty years they neglect their rights, and great injustice might be done to the party in possession by allowing a stale demand to be brought forward after a longer lapse of time. (See 1st Real Prop. Rep. p. 48.) The above enactment will, it is apprehended, apply to an administrator suing for the subjects mentioned in the 40th, 41st, and 42nd sections of the act, see post. The utility of the alteration will be further apparent on reference to the previous state of the law.

The distinction between an administrator and an executor is, that an administrator derives his title wholly from the ecclesiastical court, and has none until the letters of administration are granted, and the property of the deceased vests in him only from the time of the grant. (Woolley v. Clark, 5 B. & Ald. 744.) The title of an administrator, though it does not exist until the grant of administration, relates back to the time of the death of the intestate, so that he may recover against a wrong-doer who has seized or converted the goods of the intestate after his death in an action of trespass or trover. (Tharpe v. Stallwood, 5 M. & G. 760; Foster v. Bates, 12 Mees. & W. 233; Welchman v. Sturgis, 13 Q. B. 552. But this doctrine of relation exists only in cases where the act done is for the benefit of the estate. (Morgan v. Thomas, 8 Exch. 302; 22 Law J., Exch., 152; 17 Jur. 283.) An executor, on the other hand, derives his title from the will itself, and the property vests in him from the moment of the testator's death. (Hickman v. Walker, Willes, 27.) Thus where a term was granted in remainder expectant on another existing term, and before the expiration of the first term the grantee died; at the expiration of the first term the lessor entered and levied a fine before administration granted; and after the five years' non-claim on the fine had run, letters of administration were obtained of the effects of the person entitled to the reversionary term, and it was held that the administrator should have five years from that time, as there was no right of entry before. (Stanford's case, Cro. Jac. 61; cited in Cary v. Stephenson,

3&4 Will. 4, 2 Salk. 421; S. C., Carth. 335; Skinn. 555; 4 Mod. 376.) In another c. 27, s. 6. case there was a gift of a term of years to A. for life, remainder to B. for life, remainder to C., who died in 1736; A. in 1757; B. in 1779. Administration of the effects of C. was first granted in 1816, eighty years from his death, and his administrator brought an ejectment; he was nonsuited at the trial, but the Court of Common Pleas granted a new trial. (Fairclaim v. Little, cited in 5 Barn. & Ald. 214.)

In an action by an administrator against the acceptor upon a bill of exchange, payable to the testator, but accepted after his death, it was held, that the Statute of Limitations began to run from the time of granting the letters of administration, and not from the time the bill became due, there being no cause of action until there was a party capable of suing. (Murray v. The East India Company, 5 Barn. & Ald. 204; and see Pratt v. Swaine, 8 Barn. & C. 285; Perry v. Jenkins, 1 M. & Cr. 118; Hyde v. Price, 1 C. P. Coop. 196; Freake v. Cranfeldt, 3 M. & Cr. 499; Howlitt v. Lambert, 1 Ir. Eq. R. 263; Wms. Law of Executors, 395, 399.) The Statute of Limitations is not a good plea where an executor has not taken out administration; because no laches can be imputed to a plaintiff for not suing whilst there was no executor against whom he could bring his action. (Coop. Eq. Pl. 233; 2 Vern. 694; 1 Eq. Cas. Abr. 305.) But where the defendant had possessed the personal estate and might have been sued as executor de son tort, his plea of the Statute of Limitations was allowed, although he had not taken out probate until some years after the testator's death. (Webster v. Webster, 10 Ves. 93.) It is no answer to a plea of the Statute of Limitations, that after the cause of action accrued, and after the statute had begun to run, the debtor within the six years died, and that (by reason of litigation as to the right of probate) an executor of his will was not appointed until after the expiration of the six years, and that the plaintiff sued such executor within a reasonable time after probate granted. (Rhodes v. Smethurst, 4 Mees. & W. 42; 6 Ib. 351.)

Where letters of administration have been granted, the administrator is entitled to all the rights which the intestate had at the time of his death vested in him; although no right of action accrues to the administrator until he has obtained letters of administration. (Pratt v. Swaine, 8 Barn. & Cress. 287; S. C., 2 Man. & Ryl. 350.) An executor or administrator is not deemed to be in possession of things immovable, as leases for years or houses, before entry (Went. Off. Ex. 228, 14th ed.); although a reversion of a term, which the testator granted for part of the term, is in the executor immediately on the testator's death. (Trattle v. King, T. Jones, 170.) But the relation of the grant of administration to the death of the intestate did not, it seems, divest any right legally vested in another between the death of the intestate and the grant, so as to enable an administrator, who had obtained letters of administration after an execution issued against the intestate's tenant, to call on the sheriff to pay one year's rent, pursuant to the stat. 8 Ann. c. 17. (Waring v. Dewberry, Gilb. Eq. Rep. 223, cited in 1 Str. 97; Fortesc. 360; S. C., Vin. Abr. Executors (Q).) It seems that the grant of administration will have the effect of vesting leasehold property in the administrator by relation, so as to enable him to bring actions in respect of that property for all matters affecting the same subsequent to the death of the intestate, and to render him liable to an account for the rents and profits of it from the death of the intestate. (Rex v. Inhabitants of Horsely, 8 East, 410.) And in ejectment by an administrator, the demise might be laid on a day after the intestate's death, but before the administration granted. (Selw. N. P. 716, 10th ed.; Lessee of Patten v. Patten, Alcock & Napier, 493, Ir. See Holland v. King, 6 C. B.