O' Callaghan v Marchioness Thomond
| Jurisdiction | England & Wales |
| Judgment Date | 04 July 1810 |
| Date | 04 July 1810 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 33
Common Pleas Division
3 TAUNT. St RALHEAD V. AARAHAMS 3$ payment of rent to constitute a waiver ; that is only exempli any other evidence of waiver is equivalent, It ought to have been left to the jury, whether the Plaintiff's lessor bad made his election to determine the lease or to confirm it ; for the lease is not made absolutely void, but only rendered voidable by the breach of covenant ; and the lessor must elect whether be will enter or not. However, noth in the evidence shews that, during this long period, the rent was not accepted ; an the jury ought to have presumed that it was. The Plaintiff might easily have proved that the lessor never received this rent, and might have shown the reasons why he did not. [Heath J. The Plaintiff is not bound to prove a negative,' It ought to have been left to the jury, whether the Plaintiff had not, at some one moment, assented to these acts. MANSFIELD C. J. I do not know how it is possible to help this Defendant. The lessor havi let to Dore, with a covenant not to exercise certain trades, Dore underlets to the C efendant, and the Defendant trades contrary to the covenant the Plaintiff lives next door, and must be taken to have known the alterations in the state of the premises. Supposing no money to have been laid out in improvements, and of that there is no evidence, the suffering him to go on, is an indulgence to the tenant after a time the lessor brings an ejectment, and what you ought to prove is, that he consented to the change now you have not abewn that he has since, either directly or indirectly, received any rent; and if be had, it is probable he gave Dore a receipt, and Dore would have produced it to uphold the beneficial lease. HEATH J. Was of the same opinion. Forfeitures of lease stand on the same ground with forfeitures of copy-(81]hold; and there are a great many cases in the old books, where it is held, that a mere knowledge and acquiescence in an act constituting a forfeiture, does not amount to a waiver there must be some act affirming the tenancy. LA.WRENCS J. The rule must be discharged. Rule discharged. HALKEAD it, ABRAHAMS. July 3, 1810. After nonsuit for a variance, in an undefended action on a replevin-bond, the Court permitted the record to be amended, and a new trial to be had. This was an action on a replevin bond. Upon the trial of the cause at the Lincoln spring assizes 1810, before Bayley J., the Defendant did not appear, and the learned judge, on comparing the record of the declaration with the bond produced in evidence, discovered a fatal variance, three dozen of chairs being mentioned in the bond, and four dozen in the declaration, upon which the...
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