the rent in arrear had been legally demanded, and a re-entry made; and in case the lessee shall suffer judgment to be recovered on such judgment, and execution executed thereon, without paying the rent and costs, and without filing any bill for relief in equity, within six calendar months after such execution executed; then such lessee, and all other persons claiming a delivery under the said lease, shall be barred from all relief or remedy in law or equity, other than by writ of error, for reversal of the judgment, and the landlord shall hold the premises discharged from the lease, provided that the right of any mortgagee of such lease, who shall not be in possession, shall not be barred, so as such mortgagee shall, within six calendar months after judgment and execution, pay all rent in arrear, and all costs and damages sustained by the lessor, and perform all the covenants and agreements of the lease.

It is further provided, that, in case the lessor shall, within the time aforesaid, file a bill for relief in equity, he shall not have or continue any injunction against the proceedings at law, unless he shall within forty days next after a full answer shall be filed by the lessor of the plaintiff, bring into court such sum of money as the lessor shall, in his answer swear to be due and in arrear, over and above all just allowances and costs, there to remain till the hearing of the cause, or to be paid out to the lessor on good security, subject to the decree of the court, and in case such bill shall be filed within the above named time, and after execution is executed, the lessor of the plaintiff shall be accountable only for so much, and no more, as he shall really and bona fide make of the demised premises from the time of their entering into possession; and if what shall be so made by the lessor happen to be less than the rent reserved, then the lessee, before he shall be restored to his possession, shall pay such lessor what money so by them made, fell short of the reserved rent, for the time such lessor held the lands.

And another section of the statute provides, that if the tenant shall, before the trial of the ejectment, pay or tender to the lessor or his attorney, or pay into court, all the rent and arrears and costs, then all further proceedings shall cease; and if such lessor shall, upon any bill, be relieved in equity, he shall hold the demised lands, according to the lease, without any new lease being made. (4 Geo. II, ch. 28.)*

The statute of 4 George II, chapter 28, has been amended, or rather modified, by an act passed in 1852, but not to such extent as to render the decisions under the

The provisions of this statute have been held to be general in their operation, and extend to all cases where there is six months' rent in arrear, and a right of re-entry in the landlord; except the provision which dispenses with the formalities required by the common law upon a clause of re-entry for non-payment of rent, applies only to cases where six months' rent is in arrear, and there is no sufficient distress upon the premises to satisfy the rent in arrear. (Vide Roe v. Davis, 7 East's R. 363.)

Mr. Adams gathers from the authorities that the legislature had four different objects in view in the enactment of this statute. First, to abolish the idle form of a demand. of rent, where no sufficient distress can be found upon the premises to answer that demand; secondly, in cases of beneficial leases which may have been mortgaged, to protect the mortgagees against the fraud or negligence of their mortgagors; thirdly, to render the possession of the landlord secure, after he has recovered the lands; and fourthly, to take from the court the discretionary power they formerly exercised, of staying the proceedings, at any stage of the case, upon payment of the rent in arrear, and costs. The first of these objects, he says, is affected by permitting the landlord to bring his ejectment without previously demanding the rent; the second, by permitting a mortgagor, not in possession, to recover back the premises at any time within six months after execution executed, by paying all the rent in arrear, damages, and costs of the lessor, and performing all the covenants of the lease; the third, by limiting the time for the lessee or his assigns to make an application to a court of equity for relief to six calendar months after execution executed; and fourth, by limiting the application of the lessor to stay proceedings, upon payment of the rent in arrear and costs to the time anterior to the trial, and making it compulsory upon the court to grant the application when properly made.

The marginal note in one case construes the doctrine of the court to be," that the mortgagor of a lease has the same title to relief, against an ejectment for non-payment of rent, and upon the same terms, as the lessor against whom the recovery is had." (Doe

statute of 4 George II, chapter 28, out of place, or to supersede the necessity of giving the result of these decisions in this connection. The essential provisions of the act of 1852 will be found at a subsequent point in this chapter.

v. Roe, 3 Taunt. R. 402.) But, as has been well intimated in a foot note in Adams on Ejectment, this marginal note in Taunton fails to express fully the policy of the statute in the particular referred to, because, by the provisions of the statute, a lessee can only have relief against an ejectment for a forfeiture, upon paying the arrears of rent and costs of suit into court before trial, whereas a mortgagee may obtain relief upon paying the arrears, costs and damages at any time within six months after execution executed. The statute speaks for itself in very plain terms, and the marginal note in Taunton by no means enunciates the real design and scope of the provision.

The statute, it will be observed, dispenses with a demand for rent in these cases only where there is no sufficient distress upon the premises as well as six months' rent in arrear. It follows, therefore, that it is still necessary for the lessee to comply with all the formalities of the common law, before he can proceed upon a clause of re-entry for non-payment of rent, if a sufficient distress can be found. Indeed, this has been expressly so adjudicated by the courts. (Vide Doe v. Wandloss, 7 Term R. 117. Doe v. Robson, 2 Carr. & Pa. R. 245. Doe v. Horseley, 1 Adolph. & Ell. R. 766. Smith v. Spooner, 3 Taunt. R. 251.)

It has been held, that an insertion in the proviso of the lease, that the right of re-entry shall accrue upon the rent being lawfully demanded, will not render a demand necessary if there be no sufficient distress, for the reason that it is only stating in express words that which is in substance contained, from the principles of the common law, in every proviso of this nature; although Lord Ellenborough, C. J., expressed the opinion, that, where the words "being lawfully demanded" were inserted in a proviso for re-entry, they were to be considered as a stipulation between the parties that the rent should be in fact demanded (though not with the strictness of the common law) before ejectment brought. But the other judges did not concur in this opinion, and the decision of the court was as above stated. (Doe v. Alexander, 2 Moore & Scott's R. 525.)

The landlord cannot proceed in ejectment to recover premises as forfeited by the tenant, if there is, on any part of them, property that may be distrained sufficient to satisfy the rent; or at least, this must be the rule in ordinary cases. It was so held by the supreme court of the state of New York, when the same policy

existed there as in England, in a case where it appeared that the tenants of a large tract of land, demised to them, made a partition among themselves thirty years before the action was brought, and ever since had held and enjoyed the portion allotted to each in severalty, the landlord, not having been a party to the partition, the court held, could not proceed by action of ejectment for the recovery of a subdivision of such tract, on the ground of a want of sufficient distress on such subdivision, it appearing that on the residue of the tract there was sufficient property to countervail the rent. (Jackson v. Wyckoff, 5 Wend. R. 53.) Had the landlord been a party to the proceedings in partition, or in any other way become barred by it, it is fair to presume, that the decision would have been different. Marcy, J., in his opinion, observed: "The landlord, it is true, is not contesting the partition or denying its obligatory force on him, but the question is to be determined by the same rules of law as if he was; for if it is not reciprocally binding upon the landlord and tenants, the former ought not to be permitted to affirm its validity to work a forfeiture of a part of the trust, and still be at liberty, as respects other parts of it, to impeach its validity. I see nothing in the case which impairs his right to enter upon the premises in question, on any other subdivision of the tract, and distrain, if he found sufficient property thereon, for all the arrears of rent due on the whole; and if this right remains to him, he cannot be permitted to affirm the partition for the purpose of forfeiting the tenant's title to the part now in question."

It has been held by the English courts, that in order to dispense with the demand for rent, it is necessary that full evidence should be given that no sufficient distress was to be found upon the premises, by showing that strict search has been made in every part of the premises. (Rees v. King, cited 2 Ball & Beatty's R. 514.) The rule will be different, however, if the landlord can show that he was prevented by the tenant from entering to distrain, the words "no sufficient distress" having been ruled by Lord Tenterden to mean, 66 no sufficient distress which can be got at." (Doe v. Dyson, 1 Mood. & Malk. R. 77.) And it has been further decided, that, when upward of six months' rent is in arrear, the demand will not be dispensed with, if there be a sufficient distress to counteract the arrear of six months, though insufficient to meet the whole amount due. (Doe v. Roe, 9 Dowling's Practice Court R. 548.)

The general rule clearly is, that a demand is necessary before a landlord can re-enter for non-payment of rent, unless six months' rent is in arrear, and there is not a sufficient distress on the premises; or unless the necessity of a demand is waived by the tenant by express agreement. (Goodright v. Cator, 2 Doug. R. 483, 486.) The supreme court of the state of New York decided, in an early case, that the plaintiff, if he proceed under the statute for the non-payment of rent, must show that there was no sufficient distress on the premises; or, if he proceed at common law, he must prove a demand of the rent. But if the tenant deny the title of the lessor, and disclaim by parol to hold under him, this is a waiver of the necessity of the demand. (Jackson v. Collins, 11 Johns. R. 1.) And in a case decided by the New York court of appeals, the doctrine was laid down, that where the remedy for breach of covenant to pay, or for non-payment of rent, is by way of re-entry by a common person, there is but a single exception to the rule of the common law, that there must be an actual demand made of the rent previous to the entry; and that occurs where the parties have stipulated in the lease that a re-entry may be made for a default of payment of rent without a demand of it. It was declared by the court that in all other cases where this remedy by re-entry for the nonpayment of rent, or for a breach of the covenant to pay rent, is reserved by the lease, and the landlord pursues it under the provisions of the common law, it is indispensable to his right to re-enter, that he should, either in person, or by his agent or attorney duly authorized; previously, on the very day upon which the rent becomes due and payable, at a convenient time before sunset, in which the money may be counted before night, make an actual demand of the exact amount of the rent due, at the particular place at which the rent may be made payable by the terms of the lease; or if there be no place stipulated in the lease, then at the most notorious place upon the land demised, which, if there be a dwelling house, is the front door thereof. (Van Rensselaer v. Jewett, 2 N. Y. R. 141.) Where a lease contains a proviso, that, if the rent is in arrear so many days, the lessee might re-enter, "although no legal or formal demand should be made," the courts hold that no actual re-entry or demand of rent is necessary, in order to bring and maintain an ejectment. In such case, the demand of the rent is dispensed with by the terms of the proviso, and all that is requisite is, that the rent has been in arrear the requisite number of days. (Harris