animo with which it was done, to be left to the jury under the circumstances of the case. If a lessee exercise a trade on the premises whereby he incurs a forfeiture, the landlord does not by merely lying by and witnessing the act for six years waive the forfeiture, as some positive act of waiver is necessary; but if he permit the tenant to expend money in improvements, it is evidence of his consent to the alteration of the premises, and the jury may presume a waiver from these circumstances. A right of re-entry is waived by acceptance of the reserved rent though from a stranger. Where a landlord, finding the premises out of repair, gave the tenant three months' notice to repair, pursuant to his covenant; held, first, that he could not maintain ejectment for a forfeiture until the three months had elapsed; and, secondly, that the notice was a waiver of the breach of the general covenant to repair. It seems that the acceptance of rent accruing due before the expiration of the three months is not a waiver *of the forfeiture. Taking a distress, though an insufficient one, is a waiver of a right, of re-entry at common law. But a Waiver of distress is only an acknowledgment of a tenancy up to the forfeiture. period of the distress, and therefore only a waiver of a forfeiture previously incurred." Where a lease contained a general covenant to repair, and a special covenant that the landlord might give notice to repair, and if the repairs were not done within a certain time, that he might enter, perform the repairs himself, and distrain the tenant for the expenses as for rent; the indenture also contained a general clause of re-entry in case of the non-performance of the covenants by the lessee. The landlord gave notice of repairs which were not done; he then gave notice under the special covenant, that if the repairs were not made within a certain time he should enter and repair the premises himself, and distrain on the tenant for the expenses; the tenant not having repaired the landlord brought ejectment, as upon a forfeiture; held, that the landlord by the notice under the special covenant had waived his right of entry under the general covenant; for having claimed to act under the power of making the repairs himself, he waived the forfeiture. The relation of landlord and tenant, so far from being put an end to by his notice, was affirmed by it, and the tenant was put in a totally Doe d. Cheney v. Batten, Cowp. 243. Doe d. Sheppard v. Allen, 3 Taunt. 78. Doe d. Griffith v. Pritchard, 5 B. & Ad. 765. (27 Eng. C. L. 179.) 2 Nev. & M. 789. Doe d. Morecroft v. Meux, 7 D. & R. 98. 4 B. & C. 606. (10 Eng. C. L. 417.) 1 C. & P. 346. The acceptance of rent after action brought for a forfeiture, is no waiver of a forfeiture. Id. Doe d. Rankin v. Brindley, 4 B. & Ad. 84. (24 Eng. C. L. 28.) 1 Nev. & M. 1. 'Brewer d. Lord Onslow v. Eaton, Adams, 174. Doe d. Flower v. Peck, 1 B. & Ad. 423. (20 Eng. C. L. 417.) different situation from that in which he would have stood had no such notice been given." A forfeiture incurred by a breach of a covenant to repair generally, is not waived by notice given under a covenant to repair within three months. The landlord does not waive his right of re-entry by taking an insufficient distress for the rent by the non-payment of which the forfeiture was incurred;" and where a lease contained a clause of re-entry in case the rent should be in arrear for twenty-one days and there should be no sufficient distress, it was held that the landlord having *931 *distrained within the twenty-one days, and having continued in possession after the expiration of the last day for the payment of the rent did not waive his right of re-entry. An agreement to allow the tenant further time to repair is a suspension but not a waiver of the forfeiture. The heir must show the seisin of his ances tor, and his own descent. When notice to quit is necessary in order to enable the landlord to maintain ejectment, an omission or waiver of such notice is a good defence.f may 5.-Evidence in ejectment by the heir.] When ejectment is brought by the heir at law, he must show that the ancestor from whom he claims was seised of the lands in fee simple, which be done by proving that such ancestor was in actual possession, or that he received rent from the person in possession, which is presumptive evidence of a seisin in fee, or that the party in possession was the lessee of the ancestor. The plaintiff must also show his descent from the ancestor under whom he claims; or that he, and the person last seised, were descended from one common ancestor, or at least from two brothers or sisters; and that all the intermediate heirs between himself and such ancestor were dead without issue. done by proving the marriages, births, and deaths, necessary to complete his title, and showing the identity of the several parties. The testimony of persons present when the events happened, or who knew the parties concerned at those periods, and the production of extracts from parish registers, are the most satisfactory mode of proving facts of this nature. This is Hearsay Hearsay and reputation (which latter is the hearsay of those evidence. who may be supposed to have known the fact handed down a Doe d. Rutzen v. Lewis, 2 Harr. & Wol. 166. Roe d. Goatly v. Paine, 2 Camp. 520. Brewer v. Eaton, cited 6 T. R. 220. Doe d. Taylor v. Johnson, 1 Stark. 411. (2 Eng. C. L. 448.) Doe d. Rankin v. Brindley, 4 B. & Ad. 84, (24 Eng. C. L. 28,) supra. Doe'd. Kensington (Lord) v. Brindley, 12 Moore, 37. (22 Eng. C. L. 429.) 'As to what operates as a waiver of notice, see ante, 873. B. N. P. 103. Co. Litt. 15, a. Jenkins d. Harris v. Pritchard, 2 Wils. 45. Co. Litt. 243, a. Bushby v. Dixon, 3 B. & C. 298. (10 Eng. C. L. 85.) The declarations of a deceased tenant, that he held under a particular person, are evidence of the seisin of that person. Peaceable v. Watson, 4 Taunt. 16. Carne v. Nicholl, 1 Bing. N. C. 430. (27 Eng. C. L. 446.) Roe d. Thorne v. Lord, 2 Bl. 1099. Richards v. Richards, 15 East, 294. from one to another) are admitted as evidence in cases of pedigree. Thus, declarations of deceased members of the family are admissible evidence to prove relationship; as who was a person's grandfather, or whom he married, or how many children he had, or as to the time of a marriage, or of the birth of a child, and the like. The reputation of a family may also afford presumptive evidence of the death of a person without issue. But hearsay evidence is not admissible to prove the In what place of any particular birth; nor are the opinions of deceased cases neighbors, or of the acquaintances of the family, evidence on hearsay questions of this nature, nor is the hearsay of a relative admissible when the relative himself can be produced. Declarations missible. made on a subject in dispute after the commencement of a suit, or after a controversy preparatory to one, are not receivable on account of the probability that they were intended to serve one of the contending parties. Entries in family bibles and other books; so also recitals in family deeds, monumental inscriptions, engravings on rings, old pedigrees hung up in a family mansion, and the like, may be received in evidence in questions of pedigree. Reputation is prima facie evidence of marriage. It has been held sufficient in an action by the son, even where his parents were both living.j evidence duration The presumption of the duration of life ends at the expira- Presumption of seven years from the time when the person was last tion of the known to be living.(1) But the death of a party may, under of life. particular circumstanees, be presumed within a shorter period; as where a person sailed in a vessel which was never afterwards heard of, his death was presumed in three years after the sailing of the vessel, as the vessel itself was presumed to be lost! Proof by one of a family, that many years before, a younger brother of the person last seised had gone abroad, and that the repute of the family was that he had died there, and that the *933 Higham v. Ridgway, 10 East, 120. Whitelocke v. Baker, 13 Ves. 514. Vowels . Young, id. 148. B. N. P. 294. Doe d. Northey v. Harvey, R. & M. 297. (21 Eng. C. L. 443.) Doe d. Futter v. Randall, 2 M. & P. 20. Doe d. Banning v. Griffin, 15 East, 293. Doe d. Oldham v. Wolley, 8 B. & C. 22. (15 Eng. C. L. 150.) & R. v. Erith, 8 East, 542. R. v. Eriswell, 3 T. R. 707. Weeks v. Sparks, 1 M. & S. 688. Johnson v. Lawson, 2 Bing. 90. (9 Eng. C. L. 329.) 'Pendrell v. Pendrell, 2 Stra. 925. Berkeley Peerage case, 4 Camp. 401. Whitelocke v. Baker, 13 Ves. 514. Vowels v. Young, id. 148. i B. N. P. 114. Read v. Passie, Peake, 233. St. Devereux v. Much, Dew Church, 1 Bl. 367. Doe d. Fleming v. Fleming, 4 Bing. 266. (13 Eng. C. L. 426.) * Doe d. George v. Jesson, 6 East, 80. Rowe v. Hasland, 1 Bl. 404. 1 Watson v. King, 1 Stark. 121. (2 Eng. C. L. 323.) (1) (Innes v. Campbell, 1 Rawlc, 373. Nickle v. M Farlane, 3 Watts, 165. Newman v. Jenkins, 10 Pick. 517.) of fact for the jury. witness had never heard in the family of his having been married, is prima facie evidence that the party was dead without lawful issue, to entitle the next claimant by descent to recover in ejectment. Where a tenant for life had not been scen or heard of for fourteen years, by a person resident near the estate on which he resided, although not a member of his family; it was held to be prima facie evidence of the death of such tenant.b But though a person who has not been heard of for seven years is presumed in law to be dead, there is no legal presumption as to the time of his death. The fact of his being alive, or dead, at any particular period during the seven years, must be proved by the party relying on it. Therefore, where the plaintiff, in ejectment brought in 1832, claimed the premises as reversioner on the death of a party who went abroad in 1807, and had never since been heard of, the court held that it was incumbent on him to prove that the party who went abroad was alive within twenty years before the action was brought, for there was no legal presumption of the continuance of life until the end of seven years. The time The time of death is a question of fact which must depend of death is on the circumstances of each particular case. "It appears to a question me," said Lord Denman, C. J., "that nothing would be more absurd than that there should be a presumption of life, or death, without reference to the age, circumstances, situation of life, and common habits of the party. Can there be the same presumption as to a party who is 100 and one who is thirty-five, as to a party who was in good health when last heard of and *one who was proved to have then had a disorder upon him, which was likely speedily to terminate in his death? It cannot be, it is altogether a question of fact."d *934 Evidence te esta When the lessor claims as heir to copyhold premises, he must, in addition to the foregoing evidence, produce the rolls of the manor, to show a surrender to himself or those under whom he claims; but he need not show his own admittance unless the ejectment be against the lord. In the latter case he must prove an admittance, or a tender thereof, and a refusal.f 6.-Illegitimacy.] Illegitimacy is not unfrequently a defence in actions of ejectment by heirs, which may be estabblish ille- lished by showing that the plaintiff, or some party through whom he claims, was not born in lawful matrimony; or (if born in wedlock) by evidence of want of access, or other cir gitimacy. Doe d. Banning v. Griffin, 15 East, 293. Doe d. Lloyd v. Deakin, 4 B. & A. 433. Doe d. Knight ". Nepean, 5 B. & Ad. 86. In R. v. Harborne, 4 N. & M. 343. 2 Ad. Harr. & W. 36. Doe d. Tarrant v. Hellier, 3 T. R. 162. 'Doe d. Burrell v. Bellamy, 2 M. & S. 87. (6 Eng. C. L. 476.) As to what constitutes a legal marriage, see title Crim. Con. post. cumstances which tend to show that the husband could not in the course of nature be the father.a It was formerly held, that if the husband was at all within Want of the kingdom, at any period during the nine months, (the peri- access. od of gestation,b) or to use the technical phrase, inter quatuor maria, the child should be deemed legitimate, as access should be presumed; but that doctrine has been long since exploded, and it is now established by numerous decisions, that where there is a manifest physical impossibility that the husband could have procreated the child, it shall be deemed a bastard. Thus, if the husband be impotent; or if it appear that he had not such access to the wife, so that by any possibility he could be the father, the child shall be considered a bastard; and proof of *935 these facts will be regulated by the same principles as are applicable to the establishment of any other fact. If, however, such personal access between the husband and wife as afforded an opportunity of sexual intercourse, is established, a sexual intercourse will be presumed, and it will be incumbent on those who deny such intercourse, to show that it has not taken place; and if such personal access can be shown to have taken place, within such a period as by the course of nature the husband could be the father, the child will be deemed legitimate, even though the wife be notoriously living in adultery during the period of her gestation." The presumption of the legitimacy of a child born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce can be legally resisted only by evidence of such facts or circumstances as are sufficient to prove, to the satisfaction of those who are to decide the question, that no sexual intercourse did take place between the husband and wife at any time, when by such intercourse the husband could, by the laws of nature, be the father of such child. But if the husband and wife be living separately, and she is openly carrying on an adulterous intercourse with others, a child born under such circumstances is, prima facie, illegitimate even though the husband had an opportunity of access to her; for it will not be presumed that under such circumstances he availed himself of that opportunity. A child begotten after a separation à mensa et thoro is prima facie a bastard; for access will not be presumed. R. v. Luff, 8 East, 206. The usual time for a woman to go with child is forty weeks; but the period of gestation may be accelerated or retarded by accidental causes. Thus, a child born forty weeks and nine days after the death of the husband has been held legitimate. Alsop v. Bowtel, Cro. Jac. 541. So forty weeks and eleven days after his death, id. On this point there is no fixed rule; it is a question for the decision of the jury. See Leigh's Poor Laws, 136. t. Shelley v. › 13 Ves. 58. Banbury Peerage case, 1 Sim. & Stu. 153. Morris r. Davies, 3 C. & P. 215, (14 Eng. C. L. 275,) 427, (14 Eng. C. L. 378.) Cope v. Cope, 5 C. & P. 604. (24 Eng. C. L. 475.) 1 M. & Rob. 269. Head v. Head, 1 Sim. & Stu. 150. Bury v. Philpott, 2 Myl. & K. 349. e Opinion of the judges in the Banbury Peerage case, supra. Cope v. Cope, supra. & St. George v. St. Margaret, 1 Salk. 123. |