inserted in the Appendix, and another of the lease of a way-leave. Licences. It is important to keep in mind that a lease which gives an exclusive interest must be distinguished from a mere licence. Thus a grant that it shall be lawful for a man, his heirs and assigns, at all times to enter upon the lands to search and dig for coal, is only a licence, and conveys no interest so as to enable the grantee to exclude the grantor from getting coal.* And where the owner of the fee granted by indenture to A. and his partners liberty to dig for metals throughout certain lands, with specified powers of working, excepting to the grantor certain liberties for driving adits, &c., for the term of twenty-one years; and in the indenture were contained covenants by the lessee for the payment of a royalty, and other covenants, and a proviso for re-entry on nonperformance, it was held that this deed was a mere licence.t Distinction between Lease and Agreement.-Some of the leading cases on the subject of the present chapter are the following. It is often a matter of dispute whether an instrument is an agreement for a lease or an actual lease. The case of Doe d. Morgan and others v. Morgan and Powell (14 Law Journ. C.P. 5) contains the doctrine on this point in very clear language. The instrument then in question ran as follows: "M. T. D. hereby agrees, for himself, his administrators, and executors, to let and grant a lease to M. W. and W. of the coal, iron mine, &c., *Cheetham v. Williamson, 4 East, 469. + Doe dem. Hanley v. Wood, 2 B. & Ald. 724. under the property there mentioned, at 9d. per ton for coal, &c., for the term of seventy years from the 2nd of February, and that so much royalties as will amount to £50 a year be worked or paid for during the term, which rent is to commence in a year from the time a pit is sunk through the four-foot coal, with power to work the said minerals; and to deposit rubbish and making a wharf as is usually granted in such leases of a similar nature; and by M. T. D. power was given to the lessees, on giving six months' notice, to quit the same, &c. &c., the lessees bound themselves to commence sinking a pit before the 24th of June next; and the said M. T. D. engages to sign a lease on the said terms, as soon as it can be prepared." Chief Justice Tindal said that "the Courts are to judge of the intention of the parties in construing an instrument of this nature, and for this purpose they are to look at the instrument itself, and at the subject matter of the intended demise; but I am not prepared to say they can look further. In discovering the intention of the parties to this instrument, it is important to consider first, whether it contains any words of actual demise; and secondly, whether possession was actually given at the time of the instrument being made." Mr. Justice Erle said: "In order to discover the intention of the parties, we are to look at the words of the instrument, and the state of the premises. Looking at the premises, they are of a nature which peculiarly require a more formal instrument. Looking at the instrument, both parties would suffer if this were construed to be a lease. There would be no certainty of any rent ever being payable to the land lord, and there would be no means of access to the mineral demised to the tenants. It would be essential to the tenants to have the right of depositing rubbish, and of a wharf, but this instrument would not operate to pass such a right. There is also no time stipulated for taking possession, for though the tenants are to commence sinking a pit before the 24th of June, yet if before that time the lessor had prepared a lease, and the lessees found he had no title, the lessees would be discharged from their stipulation. Upon these grounds and others, I think this instrument is an agreement only." The allusion to the right of laying rubbish, and making a wharf, not being passed by this instrument, is founded upon the rule, that these rights are in the nature of easements, and that easements, being incorporeal hereditaments, can only be effectually passed by deed. In the case of Doe dem. Wood and another v. Clark (14 Law Journ. Q. B. 233), Mr. Justice Pattison said: "In order to constitute any particular instrument a lease, and not an agreement for a future lease, we must be able, looking at it, to say confidently, when the interest of the tenant is to commence." Re-entry. If there be a power of re-entry after a notice to be given to the persons who work the mines, the form of that notice must be strictly followed. Thus, in the case of Musket v. Hill (5 Bing. N.C. 694), there was a proviso in a licence that if the grantee (after notice to work the mines effectually, according to the laws of good mining) should fail to keep six miners at work, and that if notice in writing should be given of the grantor's intention to avoid the licence because of such failure, then, after a month, it should be lawful for the grantor to re-enter, &c.; and the grantor gave notice to the grantee that unless he kept six miners at work he would re-enter after a month,-it was held that such notice did not avoid the licence. Where there was a proviso, determining the lease, if the tenant should at any time cease working two years, and he did cease for two years; and the lessor afterwards received rent,-it was held that the lease was only voidable at the option of the lessor, and that he might put an end to the lease upon any cessation to work commencing two years before the day specified in the declaration.* In another caset a licence had been granted to the defendant to enter upon certain lands to dig for ore, for a term of twenty-one years. There was a proviso that if he ceased to work the mines for six months, or broke any other of the covenants in the licence, then the indenture should cease, determine, and be utterly void, and of no effect. It was held that the word void was to be construed to mean voidable, and that some act of the lessor to show his intention and determination to put an end to the licence, and enforce the forfeiture, was necessary for that purpose. Acceptance of Rent after Forfeiture.-The general rule is that a forfeiture of a lease is waived by the landlord distraining, or suing for, or accepting rent after the occurrence of the fact which constitutes the forfeiture, provided the fact was known to the lessor * Doe d. Bryan v. Banks, 4 B. & Ald. 491. at the time; but the subsequent receipt of rent due prior to the forfeiture is no waiver. Waiver. But if a lessor elects to waive his power to forfeit the lease on one occasion, he may, of course, take advantage of another opportunity to do so, if a subsequent act of forfeiture occurs. And if the covenant is a continuing one (such as a covenant to insure and continue insured certain premises), a breach subsequent to the waiver will entitle the lessor to re-enter. If a lessor perceives a continued act of forfeiture, there is no waiver without some distinct act on his part; but if he permits the tenant to lay out money in improvements it will be a question for the jury to say whether such evidence would amount to proof of his sanction and concurrence. So, where a landlord finding the premises out of repair, gave the tenant three months' notice to repair according to his covenant, it was held in the case of Doe d. Morecroft v. Meux (4 B. & C. 606), that he could not maintain ejectment for a forfeiture until three months had elapsed, and also that the notice was a waiver of the breach of the covenant to repair. Re-entry. We proceed to consider how the landlord may exercise his right to put an end to the lease after an act of forfeiture. If the act of forfeiture be the non-payment of rent, an actual demand of the rent must be made previously to commencing an action of ejectment (now called an action for the recovery of land) for the exact amount due, and on the very day when it becomes payable, and with other formalities which it is difficult to fulfil accurately. But if the |