By forfeiture. of rent. CHAP. V. the rent (y). This demand may be made by an agent properly authorized, who must show his authority if required so to do (z). Secondly, the demand must be of nonpayment the precise rent due (a). Thirdly, he must demand it precisely on the day when it is due and payable, to save the forfeiture. Thus, where the proviso is that, if the rent shall be behind and unpaid by the space of thirty days after the day of payment, it shall be lawful for the lessor to re-enter, the demand must be made on the thirtieth day (b). Fourthly, the demand must be made a convenient time before sunset. The person making it must be on the land time enough before sunset to count the money, and must remain there till the sun has set (c); the tenant has till the last hour of the day to pay the rent, and the demand should be made at the time when he is bound to pay (d). Fifthly, it must be made at the most notorious place upon the land; and if there be a dwellinghouse upon the land, the demand must be made at the front or fore door; but it is not necessary to enter the house, though the door be open (e). Sixthly, if a (y) Bro." Demaunde," 19; Kidwelly v. Brand, Plowd. 70 a, b; 1 Roll. Abr. 458. (2) Roe v. Davis, 7 East, 363; Doe v. Smith, 1 B. & B. 187; and see 4 Geo. 2, c. 28. (a) Fabian and Windsor's case, 1 Leon. 305; Cro. Eliz. 201, S. C.; Doe v. Paul, 3 C. & P. 613. (b) Co. Litt. 202; Hill v. Grange, Plowd. 172 b; Clun's case, 10 Rep. 129a; Kidwelly v. Brand, Plowd. 70 a, b; Cropp v. Hambledon, Cro. Eliz. 48; Wood and Chivers' case, 4 Leon. 180; Smith and Bustard's case, 1 Leon. 142; Kirby v. Green, 2 Lutw. 1139; Doe v. Wandlass, 7 T. R. 117. (c) Tinkler v. Prentice, 4 Taunt. 555. Brydges, 2 D. & R. (e) Co. Litt. 201 b; Maunde's case, 7 Rep. 28; Kidwelly v. Brand, Plowd. 70 a, b; Scot v. Scot, Cro. Eliz. 73; Wood and Chivers' case, 4 Leon. 180; Doe v. Wandlass, 7 T. R. 117. By forfeiture. of rent. place is appointed for the payment of the rent, the de- CHAP. V. mand must be made there (f). When all these requisites have been observed, the landlord will be entitled to re-enter. But if the tenant meet the landlord either on nonpayment or off the land at any time of the last day of payment, and tender the rent, it is sufficient to save the forfeiture, for the law leans against forfeitures. The same requisites are necessary to entitle a landlord to recover a nomine pœnæ; and therefore, where there is a proviso, that if the rent be in arrear for the space of thirty days next after the days of payment the lessee shall forfeit 10s. a day by way of penalty, there must be a demand of rent in the like manner as is above stated, in order to entitle the landlord to recover the penalty (g). distress. Forfeitures for non-payment of rent, if there be not No sufficient a sufficient distress upon the premises, are now regulated by the statute 4 Geo. 2, c. 28, s. 2, whereby it is enacted "that in all cases between landlord and tenant, as often as it shall happen that one half-year's rent shall be in arrear, and the landlord or lessor, to whom the same is due, hath right by law to re-enter for the nonpayment thereof, such landlord or lessor shall and may, without any formal demand or re-entry, serve a declaration in ejectment for the recovery of the demised premises, or in case the same cannot be legally served, or no tenant be in actual possession of the premises, then to affix the same upon the door of any demised messuage, or in case such ejectment shall not be for the recovery of any messuage, then upon some notorious place of the lands, tenements, or hereditaments, comprised in such declaration in ejectment, and such affixing shall be deemed legal service thereof, which service or affixing such declaration in ejectment shall stand in the place and stead of a demand and re-entry, and in case of judgment against the casual (f) Co. Litt. 202 a. (g) Co. Lit. 202 a; 1 Roll. Abr. 459 z, pl. 3; Grobham v. Thornborough, Hob. 82; Howell v. Sambach, Hob. 133. By forfeiture. of rent. CHAP. V. ejector, or nonsuit for not confessing lease, entry, and ouster, it shall be made appear to the Court where the said suit is depending, by affidavit, or be proved upon the nonpayment trial, in case the defendant appears, that half a year's rent was due before the said declaration was served, and that no sufficient distress was to be found upon the demised premises countervailing the arrears then due, and that the lessor or lessors in ejectment had power to re-enter; then and in every such case the lessor or lessors in ejectment shall recover judgment and execution, in the same manner as if the rent had been legally demanded, and a re-entry made; and in case the lessee, his assignee, or other person claiming or deriving under the said leases, shall suffer judgment to be recovered on such ejectment and execution thereon, without paying the rent and arrears, together with full costs, and without filing any bill for relief in equity, within six calendar months after such execution executed, then and in such case the said lessee, assignee, and all other persons claiming and deriving under the said lease, shall be barred and foreclosed from all relief or remedy in law or equity, other than by writ of error, for reversal of such judgment, in case the same shall be erroneous; and the said landlord or lessor shall from thenceforth hold the said demised premises discharged from such lease." Where there is a proviso of re-entry in case the rent be in arrear for a certain time being lawfully demanded, it has been held that under the above statute the demand stipulated for is unnecessary (h). Proof that no sufficient distress was found on the premises on some one day, after that on which the rent is payable to save the forfeiture, is primâ facie evidence, and sufficient to bring the case within the statute, unless the defendant (h) Doe v. Alexander, 2 M. & S. 525; Doe v. Wilson, 5 B. & A. 384, 394; but see Doe d. Darke v. Bowditch, 15 L. J. Q. B. 266, E. T. 1846. By forfeiture. of rent. shows that there was a sufficient distress (i). The words CHAP. V. "no sufficient distress" mean no sufficient distress which can be got at; and where the tenant had locked up the On outer door of the premises so that the landlord could nonpayment not get at them to distrain, it was held that he was entitled to recover (k). If more than half a year's rent be in arrear, and there be sufficient to satisfy half a year's rent, the case will not be within the statute (1). The statute does not extend to cases where there is a sufficient distress on the premises, and consequently in such cases the landlord must still proceed at common law as before the statute (m), unless the lease contains a proviso that no legal or formal demand shall be necessary (n). repair. Where there is a condition of re-entry on non-perfor- On nonmance of a covenant to repair, and the premises are allowed to go out of repair, the lessor may bring ejectment forthwith without any previous notice to repair, if such notice be not required by the terms of the lease (o). If there be a general covenant to repair, and also a covenant to repair within three months or other time after notice, the landlord is not bound to wait such three months or other time before he brings ejectment for breach of the general covenant and forfeiture thereon (p); but it would be otherwise if he has given the notice required by the specific covenant (g). The Court (i) Doe v. Fuchan, 15 East, 286. (k) Doe v. Dyson, M. & Malk. 77. (1) Doe d. Powell v. Roe, 9 Dowl. 548. (m) Doe v. Wandlass, 7 T. R. 117. (n) Doe v. Masters, 2 B. & C. 490. (0) Doe v. Morris, 11 Law J. Ex. 313; Doe d. Palk v. Marchetti, 1 B. & Ad. 715. (p) Roe v. Paine, 2 Cowp. 520; and see Doe d. Palk v. Marchetti, 1 B. & Ad. 715. (q) Doe v. Meux, 4 B. & C. 606; Doe d. De Reutzen v. Lewis, 5 A. & E. 277. By forfeiture. CHAP. V. has no power to stay proceedings, in ejectment for a forfeiture by not repairing, upon an undertaking to put the premises in repair (r). A proviso giving power of non-repair. re-entry, if the lessee should do anything in breach of any of the covenants, does not apply to a covenant to repair (s). For not insuring. For waste. Where there is a condition of re-entry upon breach of covenant to insure the demised premises, the lessor may maintain ejectment, if he is able to prove that the premises have not been insured (t). A covenant to insure and keep insured during the term, and to deposit the policy with the lessor, was held to mean that the lessee should always keep the premises insured by one policy or another; and if the premises are uninsured at any one time there would be a breach of such covenant, which would be a continuing breach for any length of time that they are uninsured (u). In a case where the lessee had covenanted to insure to a certain amount in the joint names of the lessor and himself, and the lessee did insure, but not to the amount mentioned in the covenant, and in his own name only, the Court held that the lessor could not recover as for a forfeiture, as he had retained the lease containing the covenant and had furnished the lessee with an abstract merely, in which no mention was made of the insurance being in the joint names of himself and the lessee (r). A condition of re-entry in case the lessee commits waste is construed to mean such waste as may be injurious to the reversion, unless there be some stipulation in the lease to the contrary. Thus, where a lease contained a (r) Doe v. Ashy, 10 A. & E. 71. (s) Doe d. Abdy v. Stevens, 3 B. & Ad. 299; Doe d. Spencer v. Godwin, 4 M. & S. 265. (t) Doe v. Whitehead, 8 A. & E. 571. |