years, and he lease for twenty years, the lease for the ten years shall in equity be good for ten years of the twenty (p). QUOD AB INITIO NON VALET IN TRACTU TEMPORIS NON CONVALESCIT. (Noy, Max., 9th ed., p. 16).—That which was originally void does not by lapse of time become valid. The above rule is one of very general importance in practice, in pleading, and in the application of legal principles to the occurrences of life (q). Importance practice and of rule in pleading. In practice the rule is, as already stated (r), that, when the proceeding adopted is altogether unwarranted, and different from that which, if any, ought to have been taken, then the proceeding is a nullity, and cannot be waived by any act of the party against whom it has been taken. So, it is equally clear, that pleading over cannot supply a defect in matter of substance (s), although in some cases an imperfection in the pleading will be aided or Aider by cured by verdict; and with respect to this latter proposition, the rule is thus laid down, that, where a matter is so essentially necessary to be proved, that, had it not been in evidence, the jury could not have given such a verdict, there the want of stating that matter in express terms in a declaration, provided it contains terms sufficiently general to comprehend it in fair and reasonable intend (p) Woodf. L. & T., 4th ed., 32. See Bartlett v. Rendle, 3 M. & S. 99; Doe d. Williams v. Matthews, 5 B. & Ad. 298. (9) See some instances of rule in the case of the surrender of a copyhold. Doe d. Tofield v. Tofield, 11 East, 246; 2 Bla. Com. 368: of a parish certificate, Rex v. Upton Gray, 10 B. & C. 807; Rex v. Whitchurch, (r) Ante, p. 60. (s) Ante, p. 59; Jackson v. Pesked, 1 M. & S. 234; Steph. Plead., 5th ed., 161. verdict. General application. Lease. ment, will be cured by a verdict; and where a general allegation must, in fair construction, so far require to be restricted that no judge and no jury could have properly treated it in an unrestrained sense, it may reasonably be presumed after verdict that it was so restrained at the trial (t). Instances in which the above rule applies will occur in different parts of this work, particularly in those which treat of the law of contracts. The following cases are cited in order to give a general view of its application in different and distinct branches of the law. If a bishop makes a lease of lands for four lives, which is contrary to the stat. 13 Eliz. c. 10, s. 3, and one of the lives falls in, and then the bishop dies, yet this lease will not bind his successor, for those things which have a bad beginning cannot be brought to a good end(u). So, if a man seised of lands in fee make a lease for twenty-one years, rendering rent to begin presently, and the same day he make a lease to another for the like term, the second lease is void; and if the first lessee surrender his term to the lessor, or commit any act of forfeiture of his lease, the second lessee shall not have his term, because the lessor at the making of the second lease had nothing in him but the reversion (x). Again, in the case of a lease for years, there is a distinction between a clause by which, on a breach of covenant, the lease is made absolutely void, and a clause which merely gives the lessor power to re-enter. In the former case, if the lessor make a legal demand of the rent, and the lessee neglect or refuse to pay, or if the lessee be guilty of any breach of the condition of re-entry, the lease is void and (t) Jackson v. Pesked, 1 M. & S. Woodf., L. & T., 4th ed., 13, 14. absolutely determined, and cannot be set up again by acceptance of rent due after the breach of the condition, or by any other act; but if, on the other hand, the clause be, that for non-payment of the rent it shall be lawful for the lessor to re-enter, the lease is only voidable, and may be affirmed by acceptance of rent accrued afterwards, or other act, provided the lessor had notice of the breach of condition at the time; and it is undoubted law, that, though an acceptance of rent or other act of waiver may make a voidable lease good, it cannot make valid a deed or a lease which was void ab initio (y). &c. Where a remainder is limited to A., the son of B., he Remainder, having no such son, and afterwards a son is born to him, whose name is A., during the continuance of the particular estate, yet the remainder is void (z). So, where uses are raised by a deed which is itself void, as in the instance of the conveyance of a freehold in futuro, the uses mentioned in the deed cannot arise (a); and when the estate to which a warranty is annexed is defeated, the warranty is also defeated (b); and when a spiritual corporation to which a church is appropriate is dissolved, the church is disappropriated (c). Again, by the rule of law a remainder ought to have a preceding estate to support it; and where the particular estate and the remainder depend upon one and the same title, there, if the particular estate fails, the remainder fails also (d). (y) Doe d. Bryan v. Bancks, 4 B. & Ald. 401; Co. Litt. 215. a.; Woodf. L. & T., 4th ed., 240. (z) Noy, Max., 9th ed., p. 17; 2 Bla. Com. 167. (a) Argument, Goodtitle v. Gibbs, 5 B. & C. 714. (b) Litt. s. 741, and Butler's note, (1); Co. Litt. 389. a.; but this may (c) Noy, Max., 9th ed., p. 20. Election petition. The following recent instance will also serve to illustrate this rule. The appointment of a committee to try the merits of a return to Parliament under stat. 9 Geo. 4, c. 22, ss. 18, 30, cannot legally take place if the petitioner be not present in person, or by his attorney or agent; and if such committee nevertheless be formed, and proceed to declare the petition frivolous and vexatious, the costs of opposing the petition cannot legally be taxed under s. 60 of that act; and if the Speaker, under such circumstances, directs a taxation, and certifies under the last-mentioned section, the Court, on application to put the certificate in force pursuant to sect. 63, will notice the irregularity of the proceedings on the petition, if brought before them on affidavit, and will refuse to enter up judgment (e). For, in this case, the whole of the proceedings take place coram non judice, the jurisdiction fails altogether, and with the jurisdiction the whole of the superstructure built upon it by the statute falls to the ground (f). In this and similar cases, therefore, the maxim applies, debile fundamentum fallit opus (g)— where the foundation fails, all goes to the ground; as where the cause of action fails, the action itself must of necessity fail (h). So, where a living becomes vacant by resignation or canonical deprivation, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is presumed to be cognizant, the law requires him to give notice thereof to the patron; otherwise he can take no advantage by way of lapse; neither in this case shall any lapse accrue to the metropolitan or to the crown, for the first step or beginning fails-quod non habet principium non habet (e) Bruyeres v. Halcomb, 3 A. & E. 381; cited 3 B. N. C. 160. (f) Judgment, Ranson v. Dundas, 3 B. N. C. 160. (9) Noy, Max., 9th ed., p. 12. (h) Wing. Max., 113, 114. finem (i), it being universally true, that neither the archbishop nor the Crown shall ever present by lapse, but where the immediate ordinary might have collated by lapse within the six months, and has exceeded his time (4). of rule. It may, however, be true in some few cases, that an act Qualification done contrary to law or practice may be found not to be null, according to the maxim, quod fieri non debet factum valet (1). Thus, it is said, that, if A. by deed indented let B. an acre of land in which A. has nothing, and A. purchase it afterwards, this may be a good lease (m). Again, the death of either party is, generally speaking, a countermand of a warrant of attorney; and therefore, upon motion to enter up judgment on an old warrant of attorney, if it appear to the Court that either party is dead, they will not grant the motion (n). Where, however, a motion in such a case was made after the death of the party, but on the day of the death, upon an affidavit of the preceding day, that the defendant was then alive, and judgment was entered up accordingly, the Court, on motion made to set aside such judgment, stated, that, if it had appeared at the time that the man was dead, they would not have granted the rule; but they held the above maxim to apply (o). It seems, however, that this decision cannot be supported, and would not under similar circumstances be followed (p). In connexion with these cases qualifying the general rule, may be mentioned a recent decision of considerable importance, which does not, however, strictly belong to the |