a provifo, that upon nonpayment within 40 days after the day of payment, the leafe fhould ceafe and be void. The rent was not paid within 40 days after Mich. 9 Eliz.; but, afterwards, the queen's receiver accepted it, and made an acquittance, as if it had been paid at the day, and received the rent regularly afterwards until 30 Eliz., when the queen granted the land to Sir Thomas Heneage. The nonpayment of the rent in 9 Eliz. within the 40 days was found by office, upon which Sir T. Heneage entered. The cafe was argued feveral times in the Exchequer, and all the Barons agreed, 1ft, That the leafe became void immediately upon the nonpayment of the rent, for the words were, that, upon nonpayment, the lease fhould ceafe and be void; fo that the land was difcharged of the contract, and the patentee was no longer a termor, nor, as Manwood faid, a tenant at will or at fufferance. 2d, That the acceptance of rent afterwards could not

Poph. R. 53. make a void leafe good. A writ of error was brought before the Lord Keeper of the Great Seal, and the Lord Treafurer, where the judgment was affirmed ; and that upon this reafon, for the provifo fhall be taken to be a limitation to determine the estate, and not a condition to undo the eftate, which cannot be defeated in cafe of a condition, but by entry.

II: ft. 2116.

67. But where the provifo is, that upon nonpay ment of the rent, &c. the leffor fhall re-enter, there, if the leffor accepts rent, after the breach of the con dition, he cannot afterwards take advantage of it, unlefs he was ignorant of fuch breach; in which cafe, acceptance

acceptance of rent will not bar him from entering and avoiding the leafe.

§ 68. John Pennant made a leafe for ten years, referving rent, in which was a condition, that if the leffee aliened the lands without the affent of the leffor, it fhould be lawful for the leffor or his heirs to re-enter. The lefsee aliened without licence, for which the leffor entered. The leffee faid, that before the re-entry, the leffor accepted rent which became due after the alienation; to which, the leffor replied, that, before the receipt of the rent, he had no notice of the alienation.

It was adjudged for the plaintiff.

§ 69. But where the leffor has notice of the breach of a condition, and afterwards accepts of rent, it will operate as a waiver of the forfeiture, and a confirmation of the leafe.

§ 70. In a leafe for twenty-one years, there was a covenant that the leffee should not underlet, affign, or transfer the premises, without the affent of the leffor; with a power of re-entry in cafe the leffee did not observe the covenants. The leffee underlet part of the premises, but with the knowledge of the leffor, who accepted rent accrued after fuch underletting.

Lord Mansfield." This cafe is extremely clear; <to conftrue this acceptance of rent due fince the

"condition

"condition broken, a waiver of the forfeiture, is to "conftrue it according to the intention of the parties. "Upon the breach of the condition, the landlord "had a right to enter; he had full notice of the "breach, and does not take advantage of it, but "accepts rent fubfequently accrued; that fhews he meant the leafe fhould continue. Cafes of for "feiture are not favoured in law; and where the for feiture is once waived, the court will not affift it.

TITLE XXXII.

DE E D.

CHAP. VIII.

Of an Exchange, Partition, Releafe, and Confirmation,

A

change.

N exchange is a mutual grant of equal interefts, Of an Exthe one in confideration of the other. This mode of conveyance was formerly much in ufe, as appears from the many deeds of exchange which Mr. Madox has inferted in his Formulare.

§ 2. Lord Coke fays, there are five circumstances neceffary to the validity of an exchange; 1ft, The eftates given must be equal in quantity of intereft, though not in value; as fee fimple, for fee fimple; an estate for life, for an eftate for life, &c. 2d, The word exchange, excambium, must be used, as it cannot be fupplied by any other word, or by any circumlo cution. 3d, There must be an execution of the exchange by entry or claim, in the lifetime of the parties,

1 Inft. 50 b.

Lit. f. 62.

Implies a
Warranty.
Bullard's
Cafe,
4 Rep. 121.

parties, for by the exchange they have no freehold in
deed or in law in them until it is executed by entry;
and therefore if one of them dies before entry, the
exchange is void for the heir cannot enter and take
it as a purchaser, because he is named only to take by
way
of limitation of estate in course of * defcent.
4th, If the things exchanged lay in grant, it must have
been by deed. And now by the ftatute 29 Cha. 2. c. 3.
a writing is neceffary, if the exchange is of freeholds,
or of terms for years, being more than three years.
5th, If the lands exchanged lay in feveral counties there
must have been a deed indented.

§ 3. An exchange is one of thofe conveyances to the completion of which livery of feifin is not neceffary; for the entry of each upon the land acquired by the exchange is fufficient evidence of the alteration of poffeffion.

§ 4. It was refolved in 1 Jac. 1ft, That in every exchange the word excambium implies in itself tacitè a condition, and alfo a warranty, the one to give reentry, and the other voucher and recompence, and all in refpect of the reciprocal confideration, the one land being given in exchange for the other. But it is a special warranty; for upon the voucher by force of it, he fhall not recover other land in value, but that only which was by him given in exchange. For inaf

*If an exchange be made by leafe and releafe, this inconvenience is prevented as the ftatute of ufes executes the poffeffion without entry, and all incidents annexed to an exchange at common law will be preferved.

much