Curia, per Woodworth, J. (after stating the facts.)
The question to bo decided is, whether the plaintiff, after having distrained, can, under the statute, maintain this action.
It is material to enquire, whether as respects the point under consideration, the statutes, (1 R. L. 440, and 2 Geo. 2, ch. 28,) have changed the common law doctrine, as understood before the passing of those acts. Where there is [454] a condition of re-entry, reserved for non-payment of rent, to entitle a party to re-enter, the common law requires that a demand be made of the precise amount of rent due, on the day it is payable, at the most notorious place upon the land, and convenient time before sunset. (1 Saund. 287, n. 16, and the authorities there cited.) If all these steps were regularly pursued, and the landlord recovered, he still continued always liable to an uncertainty of possession, from its remaining in the power of the tenant to olfer a compensation at any time, in order to found an application for relief in equity. The intention of the statute was to obviate the niceties before specified; and to limit and confine the tenant to six calendar months after execution executed, to make application for relief. (1 Burr. 619. 1 Saund. 287, n. 16.) As to every other point, not provided for by the statute, the law remains the same as before the passing of the act. Whatever might be urged as sufficient to defeat the action, where the re-entry is under proceedings at the common law, must necessarily be so, when they are under the statute. The estate granted in this case, was upon condition : and might be defeated if the condition was not performed. (Co. Lit. 201, b.) A re-entry for condition broken, can only be supported on the ground that the tenant’s right is forfeited at law ; but the right of forfeiture may be waived by the landlord; and whenever this is done, it follows that the action is gone. When a forfeiture has accrued upon a clause of reentry for rent in arrear, the forfeiture will be waived, if the landlord do any act after the forfeiture, which amounts to an acknowledgment of a subsisting tenancy ; as if he receives rent due at a subsequent quarter, or distrain for that, in respect of which the forfeiture accrued. In the case of a distress, the reason is given by Lord Coke. “ If the lessor distrains for the same rents, for which the demand was made, he hath thereby affirmed the lease, for after the lease determined, he cannot distrain for the rent? (3 Rep. Pennant’s case, 64. Adams on Eject. 160. Co: Lit. 211, b. 3 Salk. 3. Woodf. 496. 1 Saund. 287, n. 16.) This seems to be tie established common law doctrine, and is decisive as to the case before us. If the plaintiff here is [455] entitled to recover, it must be on the ground of forfeiture, that the rent has not been paid according to the condition. If the tenancy still exist, there can be no foundation for the action. In this case, there was no sufficient distress, and more than six months rent in arrear. By the terms of the lease it was voidable, at the election of the plaintiff. He elected to distrain, which he could not do at the common law, if the lease was determined. This shows that he intended to waive the forfeiture; at least so the law considers it. After this the remedy by re-entry, so far as respects the rents previously accrued, could not be enforced.
The doctrine thus laid down is supported in all the subsequent cases. Thus, in 1 H. Bl. 311, it was held that a distress taken for rent, accrued after the expiration of a notice to quit, is a waiver of the notice. Lord Loughborough observed, that the taking a distress, was an express confirmation of the tenancy. On the same principle, it is held that the receipt of rent, as such, after-the expiration of a notice to quit, is a waiver. (6 D. & E. 220.)
The fact that an insufficient distress was taken, cannot vary the principle ; for the tenancy is equally affirmed, whether the landlord finds goods and chattels to satisfy all the rent due, or a part only. It is the act of distraining that shows the intent to waive the forfeiture; not the amount that is recovered under that proceeding.
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Curia, per Woodworth, J. (after stating the facts.)
The question to bo decided is, whether the plaintiff, after having distrained, can, under the statute, maintain this action.
It is material to enquire, whether as respects the point under consideration, the statutes, (1 R. L. 440, and 2 Geo. 2, ch. 28,) have changed the common law doctrine, as understood before the passing of those acts. Where there is [454] a condition of re-entry, reserved for non-payment of rent, to entitle a party to re-enter, the common law requires that a demand be made of the precise amount of rent due, on the day it is payable, at the most notorious place upon the land, and convenient time before sunset. (1 Saund. 287, n. 16, and the authorities there cited.) If all these steps were regularly pursued, and the landlord recovered, he still continued always liable to an uncertainty of possession, from its remaining in the power of the tenant to olfer a compensation at any time, in order to found an application for relief in equity. The intention of the statute was to obviate the niceties before specified; and to limit and confine the tenant to six calendar months after execution executed, to make application for relief. (1 Burr. 619. 1 Saund. 287, n. 16.) As to every other point, not provided for by the statute, the law remains the same as before the passing of the act. Whatever might be urged as sufficient to defeat the action, where the re-entry is under proceedings at the common law, must necessarily be so, when they are under the statute. The estate granted in this case, was upon condition : and might be defeated if the condition was not performed. (Co. Lit. 201, b.) A re-entry for condition broken, can only be supported on the ground that the tenant’s right is forfeited at law ; but the right of forfeiture may be waived by the landlord; and whenever this is done, it follows that the action is gone. When a forfeiture has accrued upon a clause of reentry for rent in arrear, the forfeiture will be waived, if the landlord do any act after the forfeiture, which amounts to an acknowledgment of a subsisting tenancy ; as if he receives rent due at a subsequent quarter, or distrain for that, in respect of which the forfeiture accrued. In the case of a distress, the reason is given by Lord Coke. “ If the lessor distrains for the same rents, for which the demand was made, he hath thereby affirmed the lease, for after the lease determined, he cannot distrain for the rent? (3 Rep. Pennant’s case, 64. Adams on Eject. 160. Co: Lit. 211, b. 3 Salk. 3. Woodf. 496. 1 Saund. 287, n. 16.) This seems to be tie established common law doctrine, and is decisive as to the case before us. If the plaintiff here is [455] entitled to recover, it must be on the ground of forfeiture, that the rent has not been paid according to the condition. If the tenancy still exist, there can be no foundation for the action. In this case, there was no sufficient distress, and more than six months rent in arrear. By the terms of the lease it was voidable, at the election of the plaintiff. He elected to distrain, which he could not do at the common law, if the lease was determined. This shows that he intended to waive the forfeiture; at least so the law considers it. After this the remedy by re-entry, so far as respects the rents previously accrued, could not be enforced.
The doctrine thus laid down is supported in all the subsequent cases. Thus, in 1 H. Bl. 311, it was held that a distress taken for rent, accrued after the expiration of a notice to quit, is a waiver of the notice. Lord Loughborough observed, that the taking a distress, was an express confirmation of the tenancy. On the same principle, it is held that the receipt of rent, as such, after-the expiration of a notice to quit, is a waiver. (6 D. & E. 220.)
The fact that an insufficient distress was taken, cannot vary the principle ; for the tenancy is equally affirmed, whether the landlord finds goods and chattels to satisfy all the rent due, or a part only. It is the act of distraining that shows the intent to waive the forfeiture; not the amount that is recovered under that proceeding.
I have not discovered any thing that seems to hold a different language, except the remarks in Adams on Eject. 161. He observes cautiously, that a landlord will not waive his right of re-entry for a forfeiture, incurred by non-payment of rent, by taking an insufficient distress for that rent. The case of Goodwright v. Cordwent, (6 D. & E. 220) is cited. The point there decided was, that if a landlord receives rent, due after the expiration of a notice to quit, it is a waiver of that notice. But Gibbs, arguendo, referred to Brewer ex dem. Lord Onslow v. Eaton, E. 23 G. 3. B. R., where, as he alleged, it was held that the lessor of the plaintiff had not waived his re-entry on a forfeiture incurred by non-payment i f rent, by taking an insufficient distress for that rent; and ' ''.at Lord Mansfield said, “ it is like the receipt of rent after [456] the demise, about which there was so long a puzzle. Tha* is now finally settled to be no objection. It is receiving what the landlord might recover in an action for the mesne profits.” I have not been able to find the report of this case. It seems to me, however, that if the action was to recover on the ground of a forfeiture, incurred for non-payment of rent, it is opposed to the whole current of authority on this subject; for it is not like the case of receiving rent aftei a forfeiture which accrued previously, and may be received without a waiver, because the landlord can recover it on the covenant to pay; but it is like the receipt of rent, as such, accrued subsequent to, and received after the forfeiture, which implies an affirmance of the lease; inasmuch as rent cannot accrue on an estate that is forfeited. The landlord, it is true, may recover damages in an action for the mesne profits, after the re-entry, by reason of the forfeiture, is perfected ; but in that case the defendant is considered a trespasser. In Cheney v. Batten, (Cowp. 243,) it was held that the mere acceptance of rent by a landlord, for occupation subsequent to the time when the tenant ought to have quit-ted, according to the notice given to him for that purpose, is not, of itself, a waiver of the notice. Admitting this to be the law, where the tenant holds over, and has received a notice to quit, it does not prove that the same principle is to be applied, when the right of re-entry is founded on a forfeiture, which is in derogation of an existing estate. The distinction is taken by Aston, justice, in the case last cited, who observes, that where an ejectment has been brought on the statute 4 Geo. 2, for the forfeiture of a lease, there, acceptance of rent by the landlord has been held a waiver of the forfeiture: which might well be ; for it is a penalty, and by accepting the rent, the party waived the penalty; but in the case of a notice, it was only a waiver of the right to double rent, and did not necessarily imply a consent that the tenancy should continue. The case of Roe v. Harrison, (2 D. & E. 425,) supports this distinction. , It was an action to recover on the ground of forfeiture for assigning without leave in writing, which the proviso required. It was there held, that receiving rent after the forfeiture was no waiver [457] unless the forfeiture were Imown at the time.- Ashurst, justice, says, and the other judges concurred, that the receipt by the landlord of rent subsequent to the forfeiture, was indeed an acknowledgment of the tenancy, when he knows the act of forfeiture at the time ; and in Goodright v. Cordwent, (6 D. & E. 186,) the case from Cowper was overruled; for there, even in the case of a notice to quit, it was held, that if the landlord receive rent, due after the expiration of the notice, it is a waiver of that notice. Lord Kenyon, who delivered the opinion of the court, in reference to the cases of Doe ex dem. Cheney v. Batten, and Brewer, ex dem. Onslow, v. Eaton, says, “ I cannot assent to the doctrine laid down in these cases, that the receipt of rent, accruing after the expiration of the notice to quit, is not a waiver of it; for, according to that doctrine, the same person might stand in the relation of tenant and trespasser to his landlord at the same time. From this review, I think the case cited by Gibbs cannot be received as law; for whatever may be the effect of receiving rent after a notice to quit, making a distress after forfeiture, as has been shown, is a waiver ; for it cannot rightfully be made, unless the lease is affirmed. The one is an unequivocal act of affirmance. The receipt of rent is not, in all cases, a waiver. Lord Coke, in 3 Rep. 64, has stated the rule with precision: “If a man makes a lease for years, rendering rent, on condition that if the rent be behind, to re-enter, in that case, if the lessor demands, and it is not paid, and afterwards he accepts the rent at a day after [that is, rent that accrued subsequent to the demand] he hath dispensed with the condition; but although in such a case, he accepts the rent due at the day the demand was made, yet he may re-enter; for as well before as after his re-entry he may have an action of debt for the rent, on the contract between the lessor and lessee.”
- After a patient examination of the authorities, and attentive consideration of this cause, I am of opinion, that the motion to set aside the non-suit be denied.
Motion denied.