But where a lease of crown lands granted by A., B., and C., the three Commissioners of Woods and Forests, provided that if the lessors, as such commissioners, or the commissioners for the time being, should at any time be desirous of determining the demise, and of such their desire should cause one calendar month's notice in writing under their hands to be given to the lessee, then the lease should be void, it was held, that a notice signed by two only of the commissioners for the time being was, by virtue of the act of 10 Geo. 4. c. 50. s. 92 (ƒ), sufficient to put an end to the demise (g).

Whenever the power of determining the lease is given to the lessee, it is advisable, for the lessor's security, to make the exercise of it conditional on the lessee's previous payment of rent, and performance of covenants; as the fear of being burthened with a continuance of the term is generally a powerful inducement to a faithful discharge of his duties. In the case of Porter v. Shephard (h), where the lease contained a proviso, that in case the lessee should be minded at the end of the first three or five years of the term to quit, and yield up the premises, and of such his mind should give six months' notice, then and in such case, and from and after the expiration of the said first three or five years, and payment of all rents and arrears of rent and duties on the tenant's part to be paid, and performance of the covenants contained on the part of the lessee, until the expiration of the said three or five years, the indenture and every clause therein should cease and be utterly void, the Court of King's Bench, affirming the judgment of the Common Pleas, decided, upon the plain and obvious intention of the parties, and without reference to any adjudged case, that the lessee's payment of rent and performance of covenants constituted a condition precedent to his right to determine the tenancy.

A general power of this description given to the lessor or

(f) See ante, vol. 1, p. 188.

(9) Coombes v. Dutton, 5 Mees. & Wel. 469.

(h) Porter v. Shephard, 6 Term Rep. 665.

lessee will not enable either to determine it as to part only of the premises; a special power being necessary for that purpose (i).

In the case of Doe dem. Wilson v. Abel (k), a lease was made for twenty-one years, and the lessee covenanted, that if the lessor should be desirous at any time during the term to take all or any part of the land demised for building thereon, and for yards and gardens to such buildings, it should be lawful for her or her assigns to enter upon all or any part or parts of the said land to make such buildings as she or they should think proper, and to do all such acts as should be necessary, without interruption by the lessee, provided that the lessor should give six months' notice of such intention, and provided that the lessor should allow the lessee for every acre taken the yearly rent of 81. 8s., and so in proportion for any greater or less quantity than an acre; and with a further proviso that the lease should be void for non-performance of covenants. The lessor, having concluded with a third person the terms of a building contract, but no contract having been actually signed, gave six months' notice of her intention to take the whole of the land for building, and, at the expiration of that time, her agent, unaccompanied by any surveyor, builder, workmen, or building materials, demanded possession, which being refused, an ejectment was brought. It was contended on the part of the defendant, that, as the lessor did not come on the premises to build, but only to demand possession, there was no breach of covenant; but the court was of opinion, that the meaning of the stipulation was, that the lessor might give notice of her intention, and resume all or any part of the land for the purpose of building, without waiting until she was ready to enter with materials and workmen in short, that it was not merely a covenant that the lessor might come upon the land in order to build

(i) Roe dem. Rodd v. Archer, 14 East, 245.

(k) Doe dem. Wilson v. Abel, 2 Mau.

& Selw. 541. Russell v. Coggins, 8 Ves. 34. Doe dem. Willson v. Phillips, 2 Bing. 13; S. C. 9 Mo. 46.

upon it, but that she might take it back for the purpose of building. This was a case at law.

In equity, however, where the lessor's intentions with regard to building can be more rigorously scrutinized, the lessee may find protection against an ejectment, unless the land be clearly wanted for the purposes of building; and it appears that it is not sufficient for the landlord to demand possession, stating, that he wishes to have the land for building, having entered into a treaty; though a specific allegation of his having entered into an agreement would alter the case (1).

An agreement was entered into in the following terms :"A. W. agrees to let all those pieces of land, &c., and T. R. agrees to take the above-mentioned pieces of land, for the term of twenty-one years, by paying to A. W., or his heirs, executors, administrators, or assigns, a yearly rent of 301., clear of all taxes or abatement whatever; and it is also further agreed and clearly understood, that in case the said A. W. or his heirs, executors, and assigns, should want any part of the said land to build or otherwise, or cause to be built, then the said T. R., or his heirs, executors, or his assigns, shall and will give up that part or parts of the said land as shall be requested by the said A. W., by his making an abatement in proportion to the rent charged, and also to pay for so much of the fence, at a fair valuation, as he shall have occasion, from time to time, to take away, by his giving or leaving six months' notice of what he intends to do;" but there was no proviso for re-entry on T. R.'s refusal to give up possession on request. An ejectment having been brought against the tenant, it was contended on his part, that the engagement to give up possession when the lessor should require it for the purposes of building, was not a condition operating in defeazance of the estate, but a mere covenant, for the breach of which the remedy was by an action for damages, or an application to Chancery, but not by ejectment; Best, J., being of this opinion, the plaintiff was non-suited, and the

court of Common Pleas refused a rule to set the nonsuit aside (m).

And in a later case (n), where a lease was granted, saving and reserving to the lessor liberty to resume the whole or any part of that part of the demised premises called

allowing to the lessee 30s. an acre per annum for so much as should be resumed, during the remainder of the term, it was held, in conformity with Doe v. Phillips, that this clause, being a covenant, and not a condition, did not give the lessor a right of re-entry, so as to enable him to maintain ejectment.

In the case of Doe v. Archer (0), a lease was made of a farm called Town Barton, consisting of the mansion-house, and several closes of land, and also of the Shippen Barton, containing various closes of land, for twenty-one years; subject to a proviso giving liberty to either party to determine the lease at the end of fourteen years, on giving to the other at least two years' previous notice of such intention. The lessor gave notice thus: "Mr. S. Archer: Agreeable to the terms of the covenant between us, I hereby give you due notice to deliver up possession of Town Barton, &c., on the expiration of the 14th year of your term;" and it was held sufficient to determine the lease as to all the premises; Lord Ellenborough, C. J., observing, that the notice to quit the Town Barton, where the mansion was, meant the Town Barton, cum sociis, especially with reference to the lease which only gave a power to determine the tenancy as to the whole of what was let together.

But where a lessee, having a power to determine his lease for twenty-one years, by giving six calendar months' notice immediately preceding the expiration of the first fourteen years, which fourteen years would determine at Michaelmas, 1837, gave six months' notice preceding Midsummer-day, 1837, to quit the premises on Midsummer-day, 1837, agree

(m) Doe dem. Willson v. Phillips, 3 Irish Law Rep. 168. Jack dem. 2 Bing. 13; S. C. 9 Mo. 46. Croker v. Orpen, 6 Irish Law Rep. 351.

(n) Lessee Archbishop of Dublin v. Eaton, Arms, Mac. & Og. 66; S. C.

(0) Doe dem. Rodd v. Archer, 14 East, 245.

ably to the covenants of the lease, it was held, that the notice was insufficient, being inconsistent with the proviso contained in the lease; and, therefore, that the tenant was liable to pay a quarter's rent due at Christmas, 1837 (p).

Here may be added, that where a lessee of mines covenanted that, in case the lessor should at any time before the expiration or sooner determination of the lease, give to the lessee notice in writing of his desire to take, at a valuation, all or any part of the moveable machinery, going gear, stock in trade, implements, utensils, articles, and things, in or about the mines, the lessee would, on the expiration or determination of the lease, deliver to the lessor, all or such part of the said moveable machinery, &c., as should be specified in the notice, and, thereupon, the lessor should pay to the lessee the fair value of the articles so delivered, such value to be settled by arbitration; the covenant was held to be so injurious and oppressive to the lessee, that the court refused to interfere to give effect to it by way of specific performance, or to grant an injunction against the lessee's selling or removing the articles (g).

SECTION II.-BY FORFEITURE; AND HEREIN OF WAIVER.

The lessee's estate may also be determined before its regular expiration by forfeiture, which may occur, I. Under the ordinary proviso for the lessor's re-entry on the lessee's non-payment of rent or non-performance of covenants; II. In certain cases, by the lessee's tortious alienation; III. By his disclaimer.

I. Under the proviso for re-entry.

This branch of our subject has already been in a measure discussed in that portion of the work which treats of the formal and essential parts of a lease (r), where we had occasion to notice the nature, construction, and effect of such a

(p) Cadby v. Martinez, 11 Adol. & Ell. 720; S. C. 3 Per. & Dav. 386.

(q) Talbot v. Ford, 13 Sim. 173. (") Ante, p. 317 of this volume.