Opinion by
BeosNAN, J., Lewis, C. J.,concurring.
The petition for a rehearing in this case, presents a point now raised for the first time. It is urged that, by the Organic Act of the Territory of Nevada, all judicial power was vested in certain Courts therein designated; that the motion for new trial was not acted upon by any tribunal specified in the Act; that the order of Mr. Whitman, the referee, was not a judicial act, and as this Court can only exercise judicial power of an appellate character, that action in this case is beyond the scope of its power, that it cannot entertain appeals from the decisions of private individuals.
We recognize the principle that consent of parties cannot confer jurisdiction, as we do that which holds that a person cannot take advantage of his own wrong.
*56Final judgment was entered in tbe proper District Court on tbe report of tbe referee, Mr. Taylor, on tbe 9th. day of May, 1864.
By stipulation of parties a motion for new trial was made by appellants before Mr. W., and an order denying tbe motion was entered on tlie 11th day of July, 1864. On the following day tbe appellants gave notice of appeal to tbe Supreme Court of tbe Territory, and bled the usual bond. Thus it appears that at the time of the organization of our State, tbe action was pending in tbe Court of which this Court is successor; and by tbe provisions of tbe Constitution, that appeal was transferred to this Court upon tbe transition from a Territorial to a State Government.
Vide Art. XVII., Sec. 4, of the Constitution of Nevada. We think this point lias no merit.
In our former opinion it is stated that in adopting the common law of England in this country, it seems established doctrine, that it was adopted as amended or altered by English statutes in force at tbe time of the emigration of our colonial ancestors. Counsel thinks this is erroneous, and asks that it be reconsidered. "We have done so carefully, and 'find no reason for a change of opinion.
Chancellor Kent, after saying that tbe common law of England, so far as it is applicable to our situation and Government, has been adopted .as an entire system in several of tbe old States, adds: “ It has been assumed by tbe Courts of Justice or declared by statute, with tbe like modibcations, as tbe law of tbe land in every State. . It is also tbe established doctrine that English statutes, passed before tbe emigration of our ancestors, and applicable to our situation, and in amendment of tbe law, constitute a part of the common law of this country.” (1 Kent’s Com. 4Y3.)
Judge Storey (in 5 Peters, 241) says: “Those statutes, (English) passed before tbe emigration of our ancestors, being applicable to our situation, and in amendment of the law, constitute a part of our common law.
Bishop says:’ “A large proportion of the older English statutes are common law here, as by and by will be explained.” (Bishop’s Or. Law, See. 10), and further adds (Sec. 11), “ but, *57general statutes, amendatory therefore of the common law, came, and they constitute a part of the common law.
Sedgwick, in bis work on Common Law, after a full review of authorities, •writes: “ The great body of the Common Law of England, and of the statutes of that country as they existed in 1776, are then, so far as applicable to our condition, the basis óf our jurisprudence.” (Sedgwick -on Stat. and Const. Law, 18.) But counsel reply that this doctrine embraces only the original States. In the words of the petition: “ The thirteen original States of the Union were English Colonies, peopled by Englishmen, and consequently come within the rule em-, braced by the Court.” The authorities recognize no such limitation, and upon principle there ought to be none. When the Common Law of England, consisting in part of statutes, as we have shown, has been adopted in the United States, why may not Americans, like the adventurous emigrants of other nationalities, carry with them the common law of their country into the Territories acquired since the Revolution ?
And whenever that law, without exception, is declared, as it has been here, to be the rule of decision, why shall it not prevail? In Norris v. Harris (15 Cal. 258), Chief Justice Field, after stating that the Common Law of England was repeatedly presumed to exist in the original States, and in those carved out of them, adds: “A similar presumption must prevail as to the existence of the common law in those States which have been established in Territories acquired since the Revolution, where such Territory was not, at the time of its acquisition, occupied as an organized and civilized community, wheñ in fact the population of the new State upon the establishment of Government,, was formed of the. emigration from the original States.” This language possesses peculiar force in this State. Again, counsel say that the statute (32, Henry, Till.) is confined to the assignability of breaches of conditions in law, as contra-distinguished from conditions in deed. We have sought in vain for authorities to satisfy our-, selves of this distinction. Certainly, the language of the statute does not make any. It is most general and comprehensive in its terms, was enacted to remove restraint of feudal law, and should not in this age be circumscribed in its opera*58tion. It lias been acknowledged and pronounced to be a wise and just enactment.' It reads: “ All persons and bodies politic, their heirs, successors and assigns, etc., and also all other persons being grantees or assignees to the King, or to any other person or persons, and the heirs, executors, successors and assigns of every one of them, shall have the like advantage by entry, for non-payment of rent, for doing waste, or any forfeiture, etc.”
Lord Coke, in commenting upon this statute, states his opinion of it as follows:
, First — -That the statute is general, viz : That the grantee of the reversion of every common person, as well as of the King, shall take advantage of conditions.
Second — That this statute extends to grants made by the successors of the King, although the King only be named in the act.
Thi/rd — That where the statute speaks of grantees and assignees of the reversion, an assignee of a part of the estate of the revision, may take advantage of the condition. (Vid. 1, Cruise, title 13, ch. 2, secs. 55, 56.)
Chancellor Kent says in relation to it: “ The statute has been formerly re-enacted in some of the United States, and though the statute was made for the special purpose of relieving the King and his grantees, etc., yet the provision is so reasonable and just that it has doubtless been generally assumed and adopted as part of our American law.” (1 Kent, 127.)
It is however claimed, that notwithstanding a breach of condition, the estate can only be defeated by entry. This is •stereotyped through the books but often misapplied. An entry was not necessary upon a breach, except where the condition was annexed to a freehold estate. In such case there must be an entry or claim, for the purpose of determining the estate. But upon a breach of condition annexed to an estate for years, the estate ipso facto ceased the instant the condition was broken. (4 Kent, 133; 1 Cruise, tit. 13, ch. 2, secs. 42-45.) The estate claimed in this case was of a lower grade than an estate of freehold. The reason why an entry was requisite is, that as seizen passed by livery, the estate could revert only by an act of equal notoriety. The reason of the *59rule does not exist with us; and the reason ceasing, the rule itself ceases. Gesscmte roblone, cessat, ipsa lax.
But the members of the profession understand that the refinements and subtleties that marred and disfigured the law relating to real estate in England, have been dispelled by the experience and enlightenment of our day. At most, only a demand of possession before suit is necessary with us. That is the equivalent of an entry, and it was seasonably made in this instance.
Our attention has been particularly directed to a case in 12 Barb. 144, which is claimed to be an authority very much in favor of the appellants. The facts in that are very dissimilar to the facts in this case. In that, the plaintiff executed and delivered a deed of a strip of land in fee simple to a railroad company, conditioned that defendants should make and maintain fences, and complete the railroad by the first of January, 1843, in failure of which the deed should be void. The defendants did not finish the road until September, 1844. The plaintiff took no steps to enter for the breach of condition, nor did he assert his right to the possession in any manner, nor give any notice to the defendants until September, 1846 (nearly four years after the forfeiture), at which time he gave notice to quit. Suit was commenced in October, 1846. After the forfeiture, and a year before suit was brought, the plaintiff notified the defendant to put up the fences along the roadsides, which they did. lie also used the .road himself and rode in the cars long after the forfeiture, and without complaint or intimation of the breach of covenant to defendants, except as above stated.
The road cost twenty thousand dollars per mile in its construction, and would be useless if the plaintiff should succeed in his suit, which was ejectment. It was held that lie waived forfeiture, and could not recover the land; very properly, we think. In that case, so conclusive was the evidence of a waiver of the forfeiture, that any Court must wink very hard not to see it.
The Court use this language: “No stronger evidence could -.be exhibited — short of the execution and delivery of a new deed — of a design to waive a forfeiture, and confirm the grant, than the facts to which I have adverted.”
*60Aside from any other consideration, if we should conclude that there had been a waiver of the forfeiture to put up the mill within the prescribed time, there was still the continuing condition in the agreement before the Court, to keep the mine free from water; failing to do which, a breach of the condition daily recurred. To compare the case in Barber with the one before the Court, would be to confound things.
If we entertained any doubt,'however, as to the correctness . of our conclusions, -we would gladly grant a re-hearing in this case; but we do not.
In conclusion: The petition states that our former decision rather strains' a point to establish a forfeiture. The learned counsel who prepared it, we presume, does not expect any response to that most pregnant part of his argument.
A re-hearing is denied.