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evidence of a simoniacal presentation (c), or, if he be a devisee, by proving that the devisor was incapable of making a will (d). In this last case, indeed, the evidence might be admissible as part of the tenant's case, if he could show that the party claiming as devisee had been guilty of fraud in making the will, and in falsely representing it to him as a valid one (e); but, excepting in the instance of a clear case of fraud being established, the only course which a tenant can pursue, who wishes to dispute the title of the landlord under whom he entered, is to yield up the premises, and then bring ejectment (f). So strict is this rule, that, even should a landlord, while proving his own case, in an action against the tenant for use and occupation, disclose the fact that he himself had only an equitable or a joint estate in the premises, the tenant cannot avail himself of that circumstance as a defence to the action (g). And where a tenant has held premises under a corporation aggregate, and paid rent, he cannot object to their suing him for use and occupation, on the ground that a corporation cannot demise except by deed, and that he has occupied without deed (h). This rule, too, is binding, not only on the tenant himself, but on all who claim in any way through him. Thus, where a lessee gave up possession of the premises to a party claiming them by a title adverse to that of the lessor, and prior to the lease, that party was held to be estopped, as the lessee would have been, from disputing the landlord's title (i). The principle of this rule extends also to the case of a person coming in by permission as a mere lodger, a servant, or other licensee (k).

(c) Cooke v. Loxley, 5 T. R. 4.

(d) Doe v. Wiggins, 4 Q. B. 367.

(e) Per Lord Denman in Doe v. Wiggins, 4 Q. B. 375.

(f) Per Coleridge, J., in id. 377; Doe v. Lady Smythe, 4 M. & Sel. 348.

(g) Dolby v. Iles, 11 A. & E. 335.

(h) Mayor of Stafford v. Till, 4 Bing. 75; 12 B. Moore, 260, S.C.; Dean & Ch. of Rochester v. Pierce, 1 Camp. 466; recognised in Fishmongers' Co. v. Robertson, 5 M. & Gr. 194.

(i) Doe v. Mills, 2 A. & E. 17; Doe v. Lady Smythe, 4 M. & S. 347; Taylor v. Needham, 2 Taunt. 278.

(*) Doe v. Baytup, 3 A. & E. 188. In this case a woman asked leave to get vegetables in the garden, and having obtained the keys for this purpose, fraudulently took possession of the house and set up a title. The court held that she could not defend an ejectment, but must deliver up the premises before she contested the title. See also Doe v. Birchmore, 9 A. & E. 662.

LANDLORD AND TENANT.

89

§ 83. But though a tenant cannot deny that the person by whom he was let into possession had title at the commencement of the tenancy, he may show, either that he had no title at a previous time (1), or that the title has since expired or been defeated (m). Thus he may prove that his landlord was a tenant pur auter vie, and that the cestui que vie is dead; or that he was a tenant from year to year, and that the superior landlord had given him a notice to quit, or that he was a mere tenant at will, and that the will had been determined (o). So, also, the tenant may show, that the person who let him in was a mortgagor in possession, who, not being treated as a trespasser, had title to confer on him the legal possession; and may then further prove that this party has subsequently been treated as a trespasser, whereby both the mortgagor's title, as well as his own rightful possession under him, have been determined (p). In short, he may rely on any fact, which either amounts to an eviction by title paramount (q), or shows that the title of his landlord has expired (r).

§ 84. As to what constitutes a letting into possession, some doubt exists. In one case, where a party was in possession of premises without leave obtained from any one, and a person came

(1) Doe v. Powell, 1 A. & E. 531. In that case, defendant claimed under a conveyance from a certain company bearing date 1824, and the court allowed him to dispute the title of the company to convey the same premises to the lessor of the plaintiff in 1818.

(m) Doe v. Barton, 11 A. & E. 312, per Lord Denman ; Hopcraft v. Keys, 9 Bing. 613. (0) Doe v. Barton, 11 A. & E. 314. (p) Id. p. 315. Whether the mortgagee, by giving notice to the tenant to pay rent to him, treats the mortgagor as a trespasser, is a point on which considerable doubt has been felt, id. (9) Gouldsworth v. Knights, 11 M. & W. 344.

(r) Downs v. Cooper, 2 Q. B. 256. In that case, A. demised premises to B., and during the term C. claimed the property. The matter was referred, and the arbitrator awarded in C.'s favour. A. thereupon delivered up the title deeds to C., and permitted him to tell B. to pay the rent in future to him C. B. did so, but A. afterwards distrained for the same rent. On replevin, avowry, and plea in bar stating the above facts, held that A.'s title had expired; that his conduct was an admission of that fact, and that B. was not estopped from alleging it; and per Lord Denman, that A., having induced B. to pay rent to C., was estopped from setting up his relation of landlord against B. See also Doe v. Watson, 2 Stark. R. 230; Claridge v. Mackenzie, 4 M. & Gr. 152; overruling Balls v. Westwood, 2 Camp. 11; Doe v. Seaton, 2 C. M. & R. 728.

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ESTOPPEL IN PAIS-LANDLORD AND TENANT.

to him and said, "You have no right to the premises," upon which he acquiesced, and took a lease from this person, the court held that the relation of landlord and tenant was sufficiently created to debar the one from disputing the title of the other (s). But in a subsequent case, where a tenant, being already in possession of premises under a demise from a termor, had, at the expiration of the termor's right, when his own title also expired, entered into a parol agreement with another party, to hold the premises under him; but it appeared that he had done so in ignorance of the real facts of the case, and under the supposition that this party was entitled to the premises; it was held that the agreement was not equivalent to a first letting into possession (t). This question may, in certain cases, become highly important, because neither a parol agreement by a tenant to hold premises of a party, by whom he was not let into possession (u), nor an attornment (x), nor an actual payment of rent to such party, will in themselves operate as estoppels; but the tenant may still show that he has acted in ignorance, or under a misapprehension of the real circumstances (y), or, in the case of payment of rent, that some other party was entitled to receive it (z).

(s) Doe v. Mills, 2 A. & E. 20, per Patteson, J. See also Dolby v. Iles., 11 A. & E. 335.

"The

(t) Claridge v. Mackenzie, 4 M. & Gr. 143; 4 Scott, N. R. 796, S.C. witness speaks of a new agreement having been entered into between the plaintiff and the defendant, that the former should continue in possession as tenant to the latter; but there was no new possession given by the defendant; she was in no way prejudiced; she could not have turned the plaintiff out of possession; and before their agreement, if she had brought her ejectment, the plaintiff might have shown that she had no title, and that the title was in some one else. It is not like the case of a person letting another into possession of vacant premises; it is in fact a remaining in possession of premises, which had been formerly occupied by the tenant." Per Tindal, C. J., 4 M. & Gr. 152. (u) Id.

(x) Doe v. Brown, 7 A. & E. 447.

(y) Gregory v. Doidge, 3 Bing. 474; 11 B. Moore, 394, S.C.; Gravenor v. Woodhouse, 1 Bing. 38; 7 B. Moore, 289, S.C.; Rogers v. Pitcher, 6 Taunt. 202; 1 Marsh. 541, S.C.; Doe v. Barton, 11 A. & E. 313; 3 P. & D. 194, S.C.; Hall v. Butler, 10 A. & E. 206, per Patteson, J.

(2) Cooper v. Blandy, 1 Bing. N. C. 49, 50; Doe v. Francis, 2 M. & Rob. 57; in which case payment of rent being the only evidence of tenancy, Patteson, J., allowed the defendant to show, that the lessor of the plaintiff had acted as the agent of third parties.

CONCLUSIVE PRESUMPTIONS-INFANTS.

91

§ 85. In addition to the instances of estoppels already given, there are two classes of admissions, which are sometimes arranged under this head, namely, admissions in judicio, which have been solemnly made in the course of judicial proceedings, either expressly, and as a substitute for proof of the fact, or tacitly by pleading; and admissions extra judicium, which have been acted upon, or have been made, either to influence the conduct of others, or to derive some advantage to the party, and which cannot afterwards be denied without a breach of good faith. This subject will hereafter be considered under the more appropriate title of Admissions.

§ 86. Conclusive presumptions of law are also made with respect to infants. Thus, an infant under the age of seven years is conclusively presumed to be incapable of committing any felony for want of discretion (a); and under fourteen, a male infant is presumed incapable, on the ground of impotency, of committing a rape as a principal in the first degree (b), or even of committing an assault with intent to perpetrate that crime (c). So, a female under the age of ten years is presumed incapable of consenting to sexual intercourse (d). An infant under the age of twenty-one years is presumed to be so far incapable of managing his own affairs, that he cannot in general aliene his land, or execute a deed, or bind himself by any contract unless it be for necessaries (e); neither, since the first of January, 1838, has he had any power to make a will, whether it purport to dispose of real or

(a) 4 Bl. Com. 23; 1 Hale 27.

(b) 1 Hale 630; 1 Russ. C. & M. 676. This presumption is not affected by the act of 9 Geo. 4, c. 31, §§ 16 & 17; R. v. Groombridge, 7 C. & P. 582, per Gaselee, J., and Lord Abinger; and it applies to the offence of carnally abusing a girl under 10 years of age; R. v. Jordan, 9 C. & P. 118, per Williams, J. But if the boy have a mischievous discretion, he may be a principal in the second degree, 1 Hale, 630; and if indicted for a rape, he may be convicted of an assault under 1 Vict. c. 85, § 11; R. v. Brimilow, 2 Moo. C. C. 122; 9 C. & P. 366, S.C.

(c) R. v. Eldershaw, 3 C. & P. 396, per Vaughan, B.; R. v. Philips, 8 C. & P. 736, per Patteson, J.

(d) 1 Russ. C. & M. 693, 694; 9 Geo. 4, c. 31, § 17. Between the ages of ten and twelve the consent of the girl only reduces the man's crime from felony to misdemeanour, id.

(e) 1 Bl. Com. 465, 466; Co. Lit. 78 b.

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personal estate (f); though, before that date, boys of fourteen years, and girls of twelve, might have disposed of personalty by will, provided they were proved to have been of sufficient discretion (g).

§ 87. Again, the law in certain cases recognises a conclusive presumption in favour of legitimacy. Thus, where the husband and wife have cohabited together and no impotency is proved, the issue is conclusively presumed to be legitimate, though the wife is shown to have been, at the same time, guilty of infidelity (h); and even where the parents are living separate, a strong presumption of legitimacy still arises, which can only be rebutted, either by proving a divorce a mensâ et thoro, or by cogent and almost irresistible proof of non-access (i). The fact that a woman is living in notorious adultery is not, in itself, sufficient to repel this presumption (j). But where the parents are divorced a mensâ et thoro, their children born during the separation, are, primâ facie, illegitimate (k).

§ 88. Conclusive presumptions are not unknown to the law of nations. Thus, if a neutral vessel be found carrying despatches of the enemy between different parts of the enemy's dominions, their effect is presumed to be hostile (1), at least if they have been fraudulently concealed. The spoliation of papers by the captured party, has been regarded, in all the states of Continental Europe, as conclusive proof of guilt; but in England and America it is open to explanation, unless the cause labours under heavy suspicions, or there is a vehement presumption of bad faith or gross prevarication (m). Still, though the lenity of our code does not found an absolute presumption juris et de jure, it only

(f) 7 Will. 4 & 1 Vict. c. 26, §§ 7, 34. (g) 1 Will. on Ex. 13, 14. (h) Cope v. Cope, 1 M. & Rob. 269, 276; 5 C. & P. 604, S.C.; Morris v. Davies, 3 C. & P. 215, 427; 5 Cl. & Fin. 163, S.C.; Banbury Peerage case, in Appendix n. (E) to Le Marchant's Gardner's Peerage case; 2 Selw. N. P. 759, 760, & 1 Sim. & St. 153, S.C.; R. v. Luffe, 8 East, 193.

(i) Id.

(j) R. v. Mansfield, 1 Q. B. 444, 450, 451; 1 Gale & Dav. 7, S.C. In this case Lord Denman questions the case of Cope v. Cope, as reported in 5 C. & P. 604. (k) St. George v. St. Margaret, 1 Salk. 123.

(7) The Atalanta, 6 Rob. Adm. 440, 454.

(m) The Pizarro, 2 Wheat. 227, 241, 242, n. e; The Hunter, 1 Dods. Adm. 480. See post, § 94.