C. L. P. Act,

1852.

IF a landlord desires to recover possession of demised Common Law. premises on the ground of a forfeiture for non-payment of rent, he can proceed either under the common law, or under the provisions of s. 210 of the Common Law Procedure Act, 1852 (a). He can in all cases proceed at common law, and must so proceed in cases which do not come within the provisions of the statute (a).

In no case can a landlord recover possession for non- Condition, or payment of rent unless the payment of rent has been made proviso for

re entry

a condition (b), or unless there is a proviso (b) giving the necessary. landlord a right to re-enter for such non-payment, and either determine the demise (c), or hold until the arrears are satisfied (d).

(a) 15 & 16 Vict. c. 76.

(b) Ante, pp. 54—55.

(c) Hill v. Kempshall, 7 C. B.

(d) Doe v. Horsley, 1 A. & E. 766; Doe v. Bowditch, 8 Q. B. 973.

Default in payment.

Tender of

rent at Common Law.

Tender of rent under C. L. P.

Act, 1852.

If the condition or proviso allows a specified number of days for payment of the rent after the day upon which it becomes due, no forfeiture can accrue for its non-payment until those days have elapsed (e). If the rent is reserved, "payable quarterly, and always if required in advance," the rent is always due in advance, and becomes payable upon demand at any time during the quarter, and is, therefore, in arrear as soon as it has been demanded (ƒ). By the Common Law a tenant can pay his rent at any time before the expiration of the last day allowed for payment (g). If he, or anyone on his behalf, pays or tenders the rent to the landlord, or to his authorised agent, at any time (h) before the expiration of such last day either on or off the demised premises, no forfeiture will accrue (i); but the tenant must seek out his landlord, wherever he may be "inter quattuor maria," in order to pay his rent (k). Payment or tender at any time subsequent to such last day will not prevent a forfeiture at common law if the landlord has proceeded in the manner required by the common law (). If, however, the landlord seeks to proceed under the statute (m), payment or tender of the rent at any time before the action is commenced prevents a forfeiture (n). Whether the proceedings be at common law, or under the statute, all

proceedings are stayed on payment or tender of all rent and costs at any time before trial (0).

rent.

Law.

When the proceedings are at common law there must Demand of be a demand by the landlord, or his duly authorised agent, of the precise rent due and payable to save the forfeiture, on the exact day on which it so becomes payable, at the proper place of payment, and at a convenient time before sunset, and at sunset (p). If, however, the lease provides Common that the landlord may re-enter, although no formal demand shall have been made, or if the right to reenter (q) is only a right to enter and hold until the arrears have been satisfied (r), the formalities of the common law need not be complied with, and no demand at all need be made. The words "being demanded," in a proviso for re-entry, dispense with the necessity for a strict common law demand, but not for a demand of some kind (8); but the words "without resorting to any legal process" do not dispense with a strict demand (t).

The landlord may make the demand in person, or by How made. his duly authorised agent. An agent is usually authorised By agent. by power of attorney, and he must have his authority with him ready to produce to the tenant if required (u); but he need not produce it unless requested to do so (u). Perhaps it would be sufficient if the agent was authorised

(0) C. L. P. Act, 1852, s. 212; see p. 118; Roe v. Davis, 7 East, 363, 366.

(p) 1 Wms. Saund. (Ed. 6) 287, note (16) and (m); Hill v. Kempshall, 7 C. B. 975; Molineux v. Molineux, Cro. Jac. 144.

(a) Umphyrey v. Dameon, 1 Bulstr. 181; Dormer's case, 5 Co. Rep. 40 a; Goodright v. Cator, 2 Doug. 477, 486; Doe v. Masters, 2 B. & C. 490.

(r) Doe v. Horsley, 1 A. & E. 766; Doe v. Bowditch, 8 Q. B. 973; but see Hassell v. Gowthwaite, Willes, 500, 507.

(s) Phillips v. Bridge, L. R. 9 C. P. 48.

(t) Barry v. Glover, 10 Ir. C. L. R. 113.

(u) Roe v. Davis, 7 East, 363; Toms v. Wilson, 32 L. J. Q. B. 33, 382.

What must

only by having a receipt for the rent signed by the landlord and duly stamped; especially if he be the known servant of the landlord, or his steward or agent who usually receives his rents.

The precise sum then becoming due and payable must be demanded. be demanded, and not one penny more or less, otherwise the demand will be altogether bad. So, if the rent be payable quarterly, half-yearly, or yearly, only the rent becoming due for the last of such periods should be demanded, and not the previous arrears, because it is only in respect of the rent becoming due for the last period that a forfeiture will accrue, the previous arrears not having been demanded on a proper day for that purpose (y).

When demand
must be
made.

Where.

The rent must be demanded upon the very day upon which it becomes due and payable, if no extra days are allowed by the lease to save a forfeiture (2). If such extra days are allowed, it must be demanded upon the last of such days (a). A demand upon any other day before or after the right day is insufficient (b).

The demand must be made at the proper place. When the rent is made payable at a particular place, either on or off the premises, it must be demanded there (c). In the absence of any special provision the demand must be made upon the land (d), at the most notorious place

thereon; if there be a dwelling-house it must be made there, at the front door, though there is no necessity to enter the house (e); if the premises are only a wood, or land without buildings, it must be made at a gate, or on a highway running through, or other notorious place; if one place be as notorious as another the landlord may choose which he pleases (f). The demand must always be made, though neither the tenant nor anyone on his behalf is present (g), and is good in such a case, though made upon a sub-tenant, and not generally (g).

The demand must be made at a proper hour of the day, that is, at a convenient hour before sunset and at sunset (h): it may be made at any time before sunset provided it be continued until sunset (h); it must commence a sufficient time before sunset to allow the money to be counted and paid (h), or, if made by an agent, to allow the tenant to enquire into his authority (i). The court will not take judicial notice of the time of sunset on any particular day, but it must be proved by evidence (k).

Time for making

demand.

Act, 1852.

By s. 210 of the C. L. P. Act, 1852 (l), a landlord Proceedings may proceed to recover possession of the premises under C. L. P. from his tenant under its provisions when he has by law a right to re-enter, and one half-year's rent is in arrear, and there is no sufficient distress to be found upon the premises countervailing the arrears then due (l).

This enactment is only applicable to cases between

(e) Co. Lit. 201 b.

(f) Co. Lit. 202 a.

(g) Doe v. Brydges, 2 D. & R. 29; Co. Lit. 201 b.

(h) 1 Wms.Saund. (Ed. 6) 287 ; Co. Lit. 202 a; Plowd. 172 a; Acocks v. Phillips, 5 H. & N. 183; Thomson v. Field, Cro. Jac. 499;

Doe v. Paul, 3 C. & P. 613.

(i) Toms v. Wilson, L. J. 32 Q. B. 33, 382.

(k) Collier v. Nokes, 2 C. & K. 1012.

See p. 235.

(1) 15 & 16 Vict. c. 76, s. 210. See note (ƒ), p. 277.