formed. If the only method of forfeiture mentioned in the contract, is a re-entry by the owner, there can be no completed forfeiture without such re-entry; 2 and to be able to claim the right, the owner must not have acquiesced in, or contributed to the breach which was to work a forfeiture. But where a lease contains a clause of forfeiture for breach of any covenant, but does not hold the lessor to a re-entry, in order to claim such forfeiture, a demand and re-entry, although generally essential, is not the only mode by which the lessor can enforce the forfeiture.4

For

§ 246. Party entitled to must declare election.feiture does not, generally, result, ipso facto, from the acts constituting the breach of the condition of the right

1 Coleman v. Clemens, 23 Cal. 248; Clarke v. Hart, 6 H. L. Cas. 633; Stewart v. Anglo-Cal. G. M. Co., 21 L. J.Q. B. 393; Morrison's Min. Dig. pp. 113-114.

2 Tiedeman R. P., § 277. And the entry must be with the intention of working a forfeiture. Andrews v. Senter, 32 Me. 394; Rollins v. Riley, 44 N. H. 13 Bowen v. Bowen, 18 Conn. 535. There must also be some act on lessor's part showing his election to claim the forfeiture. Roberts v. Davey, 4 B. & Ad. 664; Doe v. Bankes, 4 B. & Ald. 401; Mor. Min. Dig., p. 111.

3 Grave v. Donaldson, 15 Penn. 128. If default is mutual, forfeiture cannot be enforced. Doe v. Morris, 2 Taunt. 52; Mor. Min. Dig., p. 113.

4 An action of ejectment will generally have the same effect as a re-entry. 2 Washb. on R. P. 13; Tiede. R. P., § 277 p., 185; Kelway v. Seymour, 29 N. J. L. 329; Fonda v. Loga, 46 Barb. 123; Green v. Pettingill, 47 N. H. 375; Searns v. Harris, 8 Allen, 598. And see generally as to what acts will amount to a claim of the right of forfeiture by the land owner, Blanchard & Weeks, Ld. Cas., p. 439. "A breach of condition of the lease, an abandonment of possession, an entry and occupation of the surface by other tenants of the lessor, a written lease by the lessor of a part of the mine to others notices sent to parties who had in former years worked the mine, that the lessor had entered for breach of condition, and to determine the lease; all these things may tend to establish a virtual re-entry by the lessor." Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80; B. & W. L. C., supra.

or title; 1 if the right of forfeiture was not exercised, a forfeiture would not result,2 and for this reason it is held to be necessary for the party entitled to the forfeiture to manifest his election to take advantage of his right, or he will be deemed to have waived the same.3 After breach of a condition authorizing a forfciture, however, in the absence of evidence of a waiver of same, it would not be presumed that the forfeiture was waived, and an entry into possession on the part of the party entitled to the forfeiture would be evidence of his election to take advantage of the right.5

§ 247. Same Notice must be definite. Where the law or contract authorizing the forfeiture, does not provide for notice of the election to declare, no notice would be neces

1 Oreamund v. Uncle Sam G. &. S. M. Co., 1 Nev. 215. Does not result from mere words authorizing. Gale v. Oil Run Pet. Co., 6 W. Va. 200.

2 In re East Kongsberg Co., Biggs Case, L. R. 1 Eq. 309. "In order to work a forfeiture, there must be some person, natural or artificial, who is entitled to receive the benefit of the forfeiture when it accrues." Wiseman v. McNulty, 25 Cal. 230; M. M. D. 111.

3 Roberts v. Davy, 4 B. & Ad. 664; s. c. 1 Nev. & Mon. 443.

4 McKnight v. Kreutz, 51 Pa. St. 232; s. c. 53 Pa. St. 319.

5 "A coal lease required the lessee to make monthly returns, under oath, and to pay the rent monthly; and to take out 72,000 bushels per annum; with privilege of re-entry in case of breach. A breach of these covenants being proved, and the lessors having resumed possession, it should have been presumed that possession had been resumed under the clause to that effect in the lease, and in the absence of proof to the contrary, it was error to submit to the jury whether they had waived their right to determine the lease." McKnight v. Kreutz, 51 Pa. St. 232; s. c. 53 Id. 319. "The neglect to enforce a forfeiture during more than two years, while in the meantime lessees were not working the mine, was not a waiver of the right to insist upon forfeiture." Id.; M. M. D. 112. Where lease is void, unless oil well is bored in a year or stipulated sum paid to lessor, he will be held to have elected to avoid lease by executing a second lease to same tract. Kenton Gas Co. v. Dorney, 17 Ohio C. C. 101.

sary, but any act on the part of the person entitled to the forfeiture, going to show his election to claim such right, would be competent to show his claim.2 But as the right to exercise a forfeiture is strictly construed, all conditions precedent must be performed before a party can claim, and where the law or contract provides that the election to declare must be by notice to the adverse party, no forfeiture will result, unless notice is given,3 and it must be a notice in the manner contemplated; 4 and any ambiguous or uncertain declaration of the intention to take advantage of the forfeiture would be held insufficient.5

1 Stewart v. Anglo Cal. G. M. Co., 21 L. J. Q. B. 393.

2 McKnight v. Kreutz, 51 Pa. St. 232; s. c. 53 idem, 319

3 Westcott v. Minn. Min. Co., 23 Mich. 145. Failure to give notice was held to prevent forfeiture in South Penn. Oil Co. v. Stone (Tenn. Ch. App.), 57 S. W. Rep. 374 (1901).

4 Notice of forfeiture of the interest of a co-owner of a mining claim held insufficient. Haynes v. Briscoe (Colo.), 67 Pac. Rep. 156 (1902). "Where there was a right of forfeiture of shares, on giving ten clear days notice, held that a notice to forfeit on Monday, the ninth,' was insufficient, the ninth day of the month falling, in fact, upon a Friday." Watson v. Eales, 23 Beav. 294; 26 L. J. Ch. 361; M. M. D. 113. "A., B. and C. joined in a mining adventure on the cost-book principle, as recognized in Devonshire and Cornwall. A. fell into arrears with his calls. Notice was given him of a meeting to declare his shares forfeited. The meeting was held, but instead of his shares being declared forfeited, a resolution was passed granting him an extension of time. No payment was made, and no further notice was given; but a fortnight after the extended time had expired the shares were declared forfeited: Held, that such declaration of forfeiture was invalid." Clarke v. Hart, 6 H. L. Cas. 633. See Hart v. Clarke, 6 De G. M. & G. 232; 19 Beav. 349; M. M. D. 114.

5 Beatty v. Gregory, 17 Iowa, 109; Doe v. Banks, 4 B. & Ald. 401. If lessor does not, in a reasonable time, give notice of the forfeiture, he is held to have waived same. Alleghany Co. v. Oil Co., 86 N. Y. 638; Thompson v. Christie, 138 Pa. St. 230; Carnegie Gas Co. v. Phila. Co., 158 Pa. St. 317; Guffy v. Hukill, 34 W. Va. 49; Thomas v. Hukill, 34 W. Va. 385; 20 Am. & Eng. Enc. Law, 2 Ed. 738.

§ 248. How forfeitures are pleaded. - A forfeiture cannot, ordinarily, be pleaded generally, but the specific facts constituting the forfeiture, the condition and the breach, should be definitely set forth.1 For instance, in making a relocation of a claim on public land, that has been forfeited for a failure to perform the required amount of work and labor on the claim, the same acts are required by the subsequent locator that were necessary to complete the original location of the claim, and where there is a dispute between the party from whom the labor was due and the subsequent relocator of the same, if the latter tries to show a forfeiture in the original claimant, he must set out definitely in his pleadings the specific acts of the original locator that constitute the forfeiture.? And this rule prevails as well in the forfeiture of a claim on private lands as in claims on the public mining land, and for the breach of a condition in a contract, the same as a covenant, or stipulation in a lease. In all of these cases the forfeiture of the defendant's rights constitutes the foundation of the plaintiff's rights, and in accordance with the rule of pleading requiring the party plaintiff in a suit to first make out his cause in court, it is incumbent on the party seeking to enforce a forfeiture, to specially plead the same, together with the facts constituting the forfeiture and the burden of proof is upon him to show that there

1 Dutch Flat W. Co. v. Moony, 12 Cal. 534. See contra, Bell v. Brown, 20 Cal. 871, where it was held it could be proved under the general issue. But see Morenhout v. Wilson, 52 Cal. 263, where Bell v. Brown is criticised.

2 Wade's Am. Min. Laws, pp. 56-57, Morenhout v. Wilson, supra. "An answer to a complaint in ejectment for mining claims which alleges forfeiture by non-compliance with mining customs, etc., is insufficient in not setting forth the customs alleged to have been violated and so to have produced the forfeiture." Dutch Flat W. Co. v. Moony, 12 Cal. 534; M. M. D. 111.

was an actual breach, or failure to perform the condition working the forfeiture, by the party against whom the forfeiture is sought to be enforced.1

§ 249. Arising from breach of contract. Forfeitures are regarded with such disfavor by the courts, that either a statute or a contract, looking to a forfeiture, will be construed strictly.2 The courts lean to that which is beneficial and just as between the parties, and discourage whatever is unjust or inequitable. In interpreting a contract, they would ordinarily construe a clause as a promise or covenant, rather than as a condition working a forfeiture, and where the clause is accepted as a condition, it will be interpreted strictly and not construed to intend more than the exact words used would imply.4 In a mining contract, a clause looking to a forfeiture can be controlled or varied by a custom or rule of the mining camp contrary to the provision of the contract, and evidence would be admissible to prove the existence of the custom or rule, and thus change the liability of the promisor.5 Where one promises, for instance, that he will sink a shaft until he strikes a solid rock, or forfeit all his interest in

1 "A party who insists upon forfeiture or abandonment to build up a right in himself to the thing, franchise or easement forfeited or abandoned, is, upon first principles, bound to establish the fact or facts upon which his asserted claim or right depends." Oreamount v. Uncle Sam G. & S. Min. Co., 1 Nev. 215; Mór. Min. Dig., p. 112.

2 Coleman v. Clemens, 23 Cal. 248; also Van Schmidt v. Huntington, 1 Cal. 70.

3 Bishop on Con., § 408; Wier v. Simmons, 55 Wis. 637; Duryee v. New York, 96 N. Y. 477.

4 Bishop on Con., supra; Shep. Touch. 133. A failure to comply with mining rules, where the operations are under the "register system," authorizes a re-entry at once by the landowner. Fisher v. During, 53 Mo. App. 548; Rochester v. Mining Co., 86 Mo. App. 447. 5 Yale's Min. Claims, Ch. 8; B. & W. L. C., p. 120.