or insolvent, or his term or interest in the premises should be taken in execution for any debt (m). Being voidable only, and not void, by reason of the breach of this condition, the forfeiture might be waived by the lessor. It appears to me, that, by the receipt of the rent reserved in the lease down to Christmas, 1887, the lessor has acknowledged the lessee to be still his tenant, and thereby waived the antecedent forfeiture. If the relation of landlord and tenant or lessor and lessee subsisted between the parties down to the period mentioned, has anything occurred since to give the former a right to re-enter? It is contended that the debts due from the lessee at the time he obtained his discharge under the insolvent debtors act, not being extinguished or released by the insolvent's personal discharge, the fact of their remaining unsatisfied constitutes a continuing "insolvency" within the meaning of the proviso. If that were so, the mere fact of a single debt remaining unpaid, without any proof of pressure on the part of the creditor, or inability on the part of the debtor, would constitute a state of insolvency. That never could be the meaning of this condition. The cases cited do not appear to me to govern the present: no general inability in the defendant to pay his debts was here proved. I therefore think there is no ground for disturbing the verdict. Soğu ayil 11-- -,A, PARK, J. concurred." J avitinos si worn 53 (m) See Daken v. Cope, 1 Russ. 170; Arnsby v. Woodward, 6 B. & C. 519, 9 D. & R. 506. 1838. DOE d. GATEHOUSE V. REES. 1838. DOE d. GATEHOUSE 0. REES. doubtedly was a breach of the condition, of which the lessor might then have taken advantage. He did not, however, do so, but received rent down to Christmas, 1837, and thus waived the forfeiture. That is admitted: but then it is said, that, inasmuch as the debts due from the insolvent at the time of his discharge still remain unsatisfied, he was insolvent, within the meaning of the condition, between Christmas, 1837, and the day of the demise laid in the declaration, viz. the 26th January, 1838. The onus of proving the lessee's insolvency lay upon the lessor of the plaintiff. The only proof offered was, that a certain debt was due from the insolvent to the Messrs. Gatehouse at the time of his discharge; and that that debt remained unsatisfied. No evidence was given as to the then state of his effects. Some evidence was given of a new debt; but no pressure was shewn: therefore no argument of insolvency could be founded on that. COLTMAN, J.-This being an ejectment for a forfeiture, it was incumbent on the lessor of the plaintiff strictly to make out his case (n). I think the evidence offered was not sufficient to shew the lessee to be insolvent within the meaning of the condition. His discharge under the insolvent debtors act in January, 1836, was properly admitted to be out of the question. And the mere circumstance of his beer account being in arrear, and his neglect to pay on demand, clearly was not sufficient to establish a forfeiture. (n) Provisos for re-entry in leases are to be construed like other contracts; not with the Rule refused. strictness of conditions at common law-Doe d. Davis v. Elsam, M. & M. 189. HALL v. SWIFT. THIS was an action on the case for an alleged obstruction of a watercourse, tried before Alderson, B., at the last Assizes at Stafford. The declaration stated that the plaintiff, before and at the time of the committing of the grievances by the defendant thereinafter mentioned, was, and from thence hitherto had been and still was seised in his demesne as of fee of and in certain lands and premises, with the appurtenances, situate in the county of Stafford; and by reason thereof, long before and at the time of the committing of the grievances thereinafter mentioned, of right ought to have had and enjoyed, and still of right ought to have and enjoy the benefit and advantage of the water of a certain stream or water-course, which during all that time of right ought to have run and flowed, and still of right ought to run and flow unto and into the said lands and premises of the plaintiff, for the supplying the same with water, and for irrigating and watering of the said lands and premises, and for the benefit and improvement of the soil thereof, and for the use of the plaintiff in his trade and business of a currier, and otherwise, and of the cattle of the plaintiff depasturing in the said lands and premises: averment that the defendant wrongfully obstructed and diverted the stream above the premises of the plaintiff, to his injury. The defendant pleaded-first, not guilty-secondly, a denial of the plaintiff's right to the use of the water. The facts were these:-The defendant was the owner of a field called Wasteds, which was separated by a hedge. from a lane called Spout Lane; the land on the other side of the lane belonging to the plaintiff. The stream in question flowed from springs rising in Wasteds through a drain or under-ground course to a spout in the hedge, 1838. HALL V. SWIFT. and thence across Spout Lane to the plaintiff's land. The stream had formerly run a few yards down the lane before it crossed to the plaintiff's land; but, in the year 1835, the plaintiff had altered it so as to make it run straight from the spout in the hedge to his premises. The alleged obstruction (which was in the field called Wasteds) was proved to have gradually increased, until the supply was altogether stopped. The only positive obstruction by the act of the defendant that appeared, was, that, upon two or three occasions, he had directed. his servants to place a turf at the embouchure of the drain, for the purposes of irrigating his field. The ultimate stoppage being occasioned by the intrusion of the roots of a tree growing upon the defendant's land, whose fibres grew into and filled up the channel. It was also proved that about forty years ago the water had ceased to flow in the channel in question, and had only commenced flowing again about nineteen years since. On the part of the defendant, it was contended, that⠀ the evidence did not support the right claimed, by reason of the recent alteration in the course of the stream; and that the antient right had been lost by desuetude. The learned judge left it to the jury to say whether or not the plaintiff or those under whom he claimed had had ・ twenty years' enjoyment, and whether or not the defendant had obstructed him in it. The jury found for the plaintiff, with nominal damages. Maule, on a former day, moved for a new trial, on the grounds urged at the trial.-He submitted that the alteration in the course of the stream in 1835 destroyed the prescriptive right claimed in the declaration; that the interruption of the antient right, which was proved to have continued down to a period considerably within twenty years of the commencement of the action, amounted to a destruction or abandonment of that right; and that the 1 jury were not warranted in ascribing the obstruction complained of to the act of the defendant. TINDAL, C. J.—I am clearly of opinion that there is no pretence for the first objection. The declaration states that the plaintiff was seised of certain lands and premises, and by reason thereof of right ought to have had and enjoyed, and still of right ought to have and enjoy the benefit and advantage of the water of a certain stream or watercouse, which of right ought to have run and flowed, and still of right ought to run and flow unto and into the said lands and premises of the plaintiff, for the supplying the same with water, and for the irrigating and watering of the said lands and premises, and for the benefit and improvement of the soil thereof, &c. It appeared from the evidence, that the stream had its rise in land of defendant's, whence it flowed by an underground channel to a lane dividing the defendant's land from the plaintiff's that formerly the stream meandered a little down the lane before it flowed into the plaintiff's land; and that, in the year 1835, the plaintiff, in order to render its enjoyment more commodious to himself, a little varied the course by making a straight cut direct from the opening or spout under the defendant's hedge across the lane to his own premises. And this, it has been contended, negatives the right claimed in the declaration.' I agree, that, if the course of the water had been set out or described by metes and bounds, a variance between the statement and the proof might have been fatal. But here the right is described generally. If such an objection as this were allowed to prevail, any right, however antient, might be lost by the most minute alteration in the mode of enjoyment: the making straight a crooked bank or foot-path would have this result. No authority has been cited, nor am I aware of any principle of law or common sense upon which such an argument can base |