proper evidence of the payment of the purchase money, yet as in two later cases (a) it has been held to be immaterial, this opinion of the learned authors seems to be incorrect.

(a) See ante, pp. 9 & 21.

CHAPTER XXIX.

OF THE PRESUMPTION OF WAIVER AND ACQUIESCENCE IN ABSTRACTS OF TITLE.

Ir a person have a right or interest, and he choose not to enforce it for a considerable time, the presumption will arise that he has either waived it, or has consented to be deprived of its enjoyment. The particular instances in which this presumption will be made, must now be discussed; and it will be proper therefore to divide this chapter into the following sections: I. Presumption of waiver of forfeiture.-II. Presumption of waiver of rights and privileges.-III. Presumption of waiver of equitable claims by next of kin.-IV. Presumption of waiver of equitable claims by creditors.-V. Presumption of waiver of equitable claims under settlements.-VI. Presumption of waiver between trustee and cestui que trust.-VII. Presumption of waiver of equities of redemption.--VIII. General rules as to presumption of

waiver.

I. PRESUMPTION OF WAIVER OF FORFEITURE.

If an entry be made for a forfeiture, and it is not, upon the face of it, irregular, it will be presumed to be regular. (a)

But if the person entitled neglects to enter for the forfeiture for a considerable time, he will be presumed to have waived his right.

The only case directly deciding this point, of which I am aware, is that of Malone v. Malone, shortly reported in a note in Ball and Beattie, (b) where a lease having been granted in 1771, for three lives, by Edmund Malone to A. Malone, and an arrear of rent being due in 1779, an ejectment was brought by E. Malone against A. Malone, on which judgment was had in Hilary Term, 1780. A. Malone then died, and on the 21st of October following the habere was executed; but the sheriff's return was not filed till the 28th of March, 1800. The tenant was not then, in fact, disturbed, but continued in the enjoyment of the lands till 1800, when he was dispossessed under a writ of habere, grounded on an ejectment brought in 1799 by E. Malone. In 1804, an ejectment was brought by the heir at law of A. Malone against E. Malone, to recover the possession taken in 1800. Evidence was given by the plaintiff of the recognition of the tenancy under the lease of 1771, by E. Malone, after the year 1779; and the Chief Justice (Downes) was of opinion, that the evidence was admissible to show that the forfeiture had been waived. A bill of exception was taken to this opinion, which was overruled by the Common

(a) Doe d. Tarrant v. Hellier, 3 T. R. 170, 171.

(b) p. 32.

Pleas; and the decision of that court was in 1806 affirmed by the Court of Error.

This case, therefore, is an authority for establishing the period of twenty years as one which will raise a presumption of waiver of a right of forfeiture. This opinion is further confirmed by an important dictum of another very learned judge on this point.

In Doe d. Tarrant v. Hellier, (a) Lord Kenyon thus alludes to this subject. "Some acts done by the lord shall operate as a waiver; they do not operate as a new grant, but admit the tenant to be in of his old title. In Milfax v. Baker, (b) it was held that the lord, by admitting a copyholder after a forfeiture, dispenses with the forfeiture. The case of admission is only one instance; but things of the same nature will have the same effect, and will show that the lord dispenses with the forfeiture, and meant that the tenant should still continue in his tenancy. Now, in this case, the lord suffered near thirty years to elapse without taking advantage of the forfeiture, and by several solemn acts in his court, recognized Sir S. Hellier as his tenant. It was first presented that he died seised; then the lord required his heir to come in and be admitted as his tenant. These are as solemn acts of recognition as the admittance of the copyholder in the case in Levinz; and I do not think that I am straining that case in saying that any act equally solemn on the part of the lord, is sufficient to preclude him from taking advantage of the forfeiture. Another ground has just occurred to me as an answer to the supposed forfeiture, by levying the fine, upon which I only hazard an opinion. I do not see why

(a) 3 T. R. 171.

(b) 1 Lev. 26.

the Statute of Limitations, which operates as a bar to other rights of entry after twenty years, should not bar the lord in this case. It seems to me, that he should have availed himself of his right of entry within twenty years. However, on this ground, I give no positive opinion." The other three judges did not mention this point in their judgment, but decided the case on other grounds,

II. PRESUMPTION OF WAIVER OF RIGHTS AND

PRIVILEGES.

If a privilege to appropriate and embank mud-lands and lands overflowed by the sea, be not exercised for one hundred and fifty years, but free passage be given over it to all persons, it will be presumed to be abandoned. (a) But if there be a reservation of mines and minerals, with the privilege of working them, the non-exercise of the privilege will not, it seems, raise the presumption of an abandonment of the right. (b) If an election of one of two benefits, given by different instruments or titles, is necessary, and the person who is to make it has ample opportunities of doing so, and neglects them for a considerable and unnecessary length of time, he will be presumed to have made his election. The time, however, which will raise this presumption must depend upon the particular circumstances of the case.

In the Duke of Northumberland v. Lord Egremont, (c)

(a) Attorney-General v. Richards,

2 Anst. 615. S. S. 1 Dow. 316. nom. Parmeter v. Attorney-General, stated ante, p. 421.

(b) Seaman v. Vawdrey, 16 Ves.

390. 392. ante, p. 346. Adair v. Shaftoe, 19 Ves. 156. cit.

(c) 2 Amb. 540; more fully in 1 Eden. 489.