(n) McKenzie v. McLeod, 10 Bing. 385.

(o) Crusoe v. Bugby, 2 W. Bl. 766; s. c. 3 Wils. 234; Kinnersley v. Orpe, Dougl. 56; Church v. Brown, 15 Ves. 258, 265; Eten v. Luyster, 60 N. Y. 252; Shaw v. Famsworth, 108 Mass. 357, - But a covenant against underletting will restrain the alienation by assignment. Greenway v Adams, 12 Ves. 395. But see contra, Field v. Mills, 4 Vroom, 254 , Bemis v. Wilder, 100 Mass. 446.-Letting lodgings is not a breach of covenant not to underlet. Doe v. Laming, 4 Camp.

73. - And an assignment by operation of law is no breach of a covenant not to assign; as in a case of bankruptcy, or where the term is taken on execution by a creditor. Doe v. Carter, 8 T. R. 57. But it is otherwise if the assignment is the voluntary act of the tenant. Doe v. Carter, 8 T R. 57, 300; Doe v. Hawke, 2 East, 481. It would seem, therefore, that taking the benefit of an insolvent law would be a breach of the covenant. See Shee v. Hale, 13 Ves. 404. And if the lease is made subject to a condition that the premises shall be actually occupied by the lessee, the lease will of course determine whenever the condition is broken, whether it be by the voluntary act of the party or by operation of law. Doe v. Clarke, 8 East, 185.

(oo) Davis v. Morris, 36 N. Y. 569.

1 A tenant should provide for suspension of rent during the time premises are uninhabitable by fire or other casualty, Minot v. Joy, 118 Mass. 308; and it will apply to rent paid in advance, Rich v. Smith, 121 Mass. 328, but not to gradual decay, Hatch v Stamper, 42 Conn. 28; unless the result of fire, Cary v. Whiting, 118 Mass. 363. An oral stipulation is insufficient. Martin v. Berens, 67 Pa. 459; but see Phyfe v. Eimer, 45 N. Y. 102. The bursting of boiler is such a casualty. Phillips v. Sun, etc. Co. 10 R. I. 458. - K.

2 If consent to assign is not to be arbitrarily withheld, an unreasonable refusal gives the lessee such a right. Treloar v. Bigge, L. R 9 Ex. 151. - K.

assignment or underleasing, enter and expel the lessee or his assigns, and terminate the lease. If the Lessees be a copartnership, a change in the partners by withdrawal or addition is not a breach of the covenant not to underlet.(op) 1 In a recent English case the underlessee of a tenant who had covenanted not to carry on a certain trade, was restrained from carrrying on that trade. (oq)

A distinction formerly prevailed between a proviso declaring that the lease should be void on a specified event, and a proviso . enabling the lessor to determine it by re-entry; and it was held, that in the former case the lease became absolutely void on the event named, and was incapable of being restored by acceptance of rent, or other act of intended confirmation; while in the latter, some act, such as entry or claim, must have been performed by the lessor to manifest his intention to end the demise, which was voidable in the interval, and consequently confirmable. This distinction, however, is now exploded; and it is held that the lease is voidable only at the election of the lessor, but not of the lessee, though the proviso expressly declare that it shall be void. (p) 2 And any act will be a waiver of the forfeiture which is a distinct and voluntary recognition of the lease by the lessor, with a full knowledge of the forfeiture; as by taking rent, etc. (q) Whether a mere demand of * subsequent rent is a waiver is not so certain. (r) A waiver of the forfeiture for one breach does not prevent the lessor from insisting on the forfeiture for another. (s) The sub-lessee is not liable to the original lessor, there being no privity between them. But if the whole term and interest be assigned by the termor, the assignee - who is not a sub-lessee, as there is no reversion in the termor - is now liable to the original lessor for rent, by reason of his privity of estate. (t)

(op) Roosevelt v. Hopkins, 33 N. Y. 81.

(07) Clements v. Wells, Law Rep. 1 Eq. 403

(p) See Platt on Leases, vol. ii p. 327; 1 Smith, Lead. Cas. 19; and Taylor, Landlord and Tenant (7th ed.), § 492, where this point is fully considered, and cases cited.

(q) Roe v. Harrison, 2 T. R. 425; Doe v. Birch, 1 M. & W. 402; Doe v. Rees, 4 Bing. N. C. 384; Arnsby v. Woodward, 6 B. & C. 509; Harvie v. Oswel, Cro. E.

572; Goodright v. Davids, 2 Cowp. 808; Garnham v. Finney, 40 Mo. 449, But see Importer's Ins. Co. v. Christie. 5 Rob. 169

(r) Doe v. Birch, 1 M. & W 406; Walrond v. Hawkins, L. R. 10 C. P 342; Murray v. Barway, 56 N. Y. 337; Clifford v. Reilly, Ir R. 4 C. L. 218.

(s) Doe 0. Bliss, 4 Taunt. 735; Doe v. Woodbridge, 9 B. & C. 376.

(t) Stevenson v. Lambard, 2 East, .575. See also ante, p. *231, and note (s).

1 See Varley v. Coppard, L. R. 7 C. P. 505, to the effect that an express assignment, on dissolution, by a partner to his copartner was a breach

2 But where a lease is to terminate on a sale by the lessor, it becomes absolutely void thereby. Morton v. Weir, 70 N. Y. 247. See Rogers v. Snow, 118 Mass. 118.

Where the letting is in the alternative, as for two, four, or eight years, the tenant may determine the tenancy at either of these periods by a proper notice, unless it be expressly agreed otherwise. (u)

A tenant may not dispute his landlord's title; for he is estopped from changing, by his own act, the character and effect of his tenure. (v) And wherever a tenant disclaims his tenure, or denies his landlord's title, or claims adversely to him, or attorns to another as having title against him, he forfeits his estate. But where the lease was obtained by the fraud of the landlord, the tenant may now defend against an action brought on the lease, by impeaching the landlord's title. (w) It has been held, however, that this fraud must be practised directly against the tenant; and is not enough that the landlord's title is fraudulent as against other parties, - against the creditors of the actual owner, for example. The landlord may enter at once, and bring ejectment for the forfeiture. But this is a disclaimer * of the lease by the landlord, who cannot thereafter take any advantage from the tenancy. (x) But a disclaimer by a tenant will work a forfeiture only when it amounts to a renunciation of his character as a tenant, which may be either by setting up a title in another or claiming title in himself. (y) A refusal to pay rent, together with a request for further information as to the landlord's title, or a delay until conflicting claims are settled, seem not to be sufficient to work a forfeiture.(z) And while a tenant may not dispute his landlord's title, he may show that it has terminated; (zz)l and eviction under paramount title is a defence to the tenant. (za) Nor is a tenant estopped from denying his landlord's title after he has surrendered his possession. (zb) And he must make this surrender before he can assert rights against the landlord, acquired by the tenant after his tenancy began. (2c)