39. If a leffor or landlord wish to take advantage of a reentry for non-payment of rent, the perfon who demands the fame must be careful not to demand a penny more or lefs than what is due: He muft alfo fhew the certainty of the rent, and when due, or such demand is not good; nor will a re-entry be given, unless the demand be precisely and diftinctly followed. V. Tender and Acceptance of Rent. 1 2 Leon. 71. 3 Lev. 104. mined in Hilary Term 30 Geo. 40. A TENDER is an offer to pay a debt, or to perform a 5 Bac. Abr. 1. duty; and if refused, may be pleaded in bar of any action for not payment or non-performance; but it is not enough for the person who intends to make a tender, to fay "I am ready to pay the debt," or "to perform the duty;" for he must make an actual offer to pay the one or perform the other. A tender fhould be in the current coin of the kingdom; although a tender in bank notes is good, if not fpecially objected to on that account at the time (a): It fhould (a) So deteralso be of the whole rent due, without any deduction of taxes or affeffments, or any other charge whatfoever: But by the land-tax act (6) the tenants are required to pay. fuch fums of money as fhall be rated on the premiffes, and to deduct fo much of the fame out of their rents as the landlord ought to have paid; who is directed to allow the fame upon the receipt of the rent; fo that the land-tax receipts may now be tendered in part payment. The landlord of a term, if he accept the rent fo tendered, fhould fee that the money is not bad, or deficient in weight, for if he accept it, he thereby bars himself from any remedy by re-entry. 3 in the Cafe of Wright v. Read. (6) 30 Geo. 2. c. 3.1 15. 41. ACCEPTANCE is a taking in good part, and as it Termes de la were an agreeing to fome act done before, which might Ley. p. 6. have been undone and avoided if fuch acceptance had not been made: Thus although a leafe may be made voidable by the latches or default of the leffee, in not paying his rent according to the covenants therein contained, yet it can only be rendered void by the act of the leffor, that is by his entry; but if the leffor after fuch non-payment at the day, and before re-entry, accept the rent, that which was before voidable becomes by fuch acceptance a good leafe. So alfo Co. Lit. 211. if a leffor once accept rent from the aflignec of the term, knowing of the affignment, he cannot afterward bring an action of debt against the leffee for rent due after the allignment; the leffor, however, or his affignee, may bring an Cro. Eliz. 553. 572. 1 Roll. Abr. 475. Cro. Jac. 398. Doe on the de. mife of Cheney Hilary 15 Geo. v. Batten. 3. Cowp. 243. By Afton and ibid. p. 247. Goodright on the demise of Walter David. Eafter 18 Geo. 3. Cowp. 803. Roe v. Harri action of covenant against the first leffee on his covenant for payment of rent. 42. A leafe, with a provifo that in cafe of non-payment of the rent the leffor or landlord may re-enter, in this cafe, if the leffor or landlord diftrain, he loses his right of reentry; but he may accept the rent of the leffee or tenant, and yet re-enter: But if he receive the fucceeding quarter's rent, he cannot then re-enter; for this act of the lesfor or landlord purges the leffee or tenant of his breach, and re-establishes his lease. 43. On a leafe conditioned that the leffee or tenant shall do no wafte, if he commit wafte, and the leffor or landlord afterwards accept the rent, he waives his right of re-entry. If it had been conditioned that if he committed wafte his estate should cease, in that case, if the leffee or tenant commit wafte, no acceptance of the rent afterwards will make the leafe good. 44. The mere acceptance of rent by a landlord, for occupation fubfequent to time when notice to quit expired, is not of itself a waiver on the part of a landlord of such notice, but it is to be left to the jury, quo animo, the rent was received. 45. Acceptance of single rent is a waiver of the double rent given by the ftatute 4 Geo. 2. c. 28.; and acceptance of rent after the forfeiture of the leafe, by the fame statute, feems to have been held a waiver of such forfeiture, for it is a penalty. 46. If a leffee covenant not to underlet, without the confent of the leffor, under hand and feal, with power of reentry, in a cafe of a breach; acceptance by the leffor of the rent due after the condition broken, with full notice, is a waiver of the forfeiture. 47. The leffor's receiving rent after the leafe has become fon Eafter Term forfeited, is no waiver, unless the forfeiture were known to him at the time. 28 Geo. 3. 2 Term Rep. 425. VI. Of Non-payment of Rent. 48. On the non-payment of rent at the day it is due, the law hath furnifhed LANDLORDS with feveral methods of recovering it, according to the circumstances of each cafe. The moft ufual methods are, ift. By difirefs, of which we fhall treat in the enfuing chapter. 2d. By action of debt, for breach of the express contract. 2 49. DEBT I Sid. 401. Co. 49. 4 49. DEBT lies, by the common law, for arrears of rent Co. Lit. 47• reserved on a leafe for years or at will: So alfo it lies after entry for a forfeiture on condition broken, to recover the rent due before : So alfo if the leafe be with a nomine pœnæ, Co. Lit. 162. it lies to recover the penalty. By 32 Hen. 8. c. 37. debt 1 Roll. Abr. lies by an executor or adminiftrator of any perfon feised of 595. a rent-service, rent-charge, rent-feck, or fee-farm rent, in fee, in tail, or for life of another, against him that ought to pay the fame, his executor or administrator. By 8 Ann c. 14. any perfon having any rent due on any leafe for lives, may bring debt for the fame, although the leafe for life be continuing, in the fame manner as if due on a lease for years, which they could not do at common law: And by 8 Ann. c. 14. and 5 Geo. 3. c. 17. action of debt may now 636. be brought at any time to recover even a freehold rent on a leafe for life, &c. Thefe actions lie, though the tenant 3 Bl. Com. never entered on the premiffes; but they cannot be brought 232. in the court of conscience in London, nor in the court of requefts for the Tower hamlets: Alfo by 11 Geo. 2. c. 19. where the demife is by parol, or written agreement, and not by deed, the landlord may recover in an action on the cafe a reasonable fatisfaction for the use and occupation of the premiffes fo held and enjoyed (a). 50. Bankruptcy is a plea to an action of debt on the reddendum of a leafe; But quare, whether it is to an action of covenant for rent. VII. Of Notice to quit. 2 Com. Dig. Dougl. 245. (4) See the a poft p. 8. f. 12. Term Rep. 36. 91. Runnington's 2 Bl. Com. 51. ALL DEMISES, where no certain term is mentioned, Mr. Serjeant are held to be tenancies from year to year, which neither Treatife on party can determine without reasonable notice to the other. ejectments. This notice in most cafes is fix months preceding that part of P. 23. the year when the tenancy commenced, and therefore it hath been holden that half a year's notice to quit poffeffion must be given to fuch tenant before the landlord can maintain an ejectment; and it must be balf a year's notice, for fix months notice is not fufficient (b). 1 52. But if the tenant has attorned to fome other perfon, or done fome act disclaiming to hold as tenant, or where the poffeffion of the tenant is adverse, in these cafes no notice is neceffary: And the fame law will apply to the executor of fuch tenant. F 4 53. But 147. B. R. Hilary Throgmorton Fofter v. Cowp. 622. 3 Wilf. 25. Bury Affifes. 1775 1 Term Rep. J62. Whatley v. Hawkin's Mich 14 Geo. 3. and Heech v Hale. Dougl. 21 to Birch v. 1 Term Rep. Determined in Meffenger v. (a) Confirmed Gulliver on the demife of Tai lier v. Burr. Eafter 6 Geo. 3. x Bl. Rep. 596. 53. But after the expiration of A LEASE for a certain term, the tenant continuing in poffeffion is deemed a trespaffer, and therefore an ejectment may be brought without any notice to quit; for the leafe ending on a precife day, or at a particular period, both parties are equally apprized of the determination of the term; and it is of course at an end, unless the parties come to a fresh agreement. 54. So a mortgagee need not give any notice to quit, if he mean only to get into the receipt of the rents and profits, even though the mortgage be fubfequent to the leafe; but in fuch cafe he will not be fuffered to turn the tenant out of poffeffion. 55. But where a tenancy from year to year commences previous to the premiffes being mortgaged, or to a grant of the reverfion, the mortgagee or grantee must give the tenant fix months notice to quit before the end of the year. 56. A notice in the alternative is fufficiently valid to found an ejectment upon, viz. to quit at the end of fix months or pay double rent-so also, a second notice to quit at the expiration of the lease delivered to the tenant after the expiration of a first notice to quit on a fubfequent day, or pay double rent, has been held to be no waiver of the first notice or of the double rent which has accrued under it. 57. At a meeting of eleven of the judges (among whom were Lord MANSFIELD and Lord Chief Juftice DE GREY, a conference was had on the motion of Mr. Juftice GOULD what notice was neceflary to be given to a leffee at will to quit poffeffion before a leffor at will could have title to bring an ejectment, and recover poffeffion; and it was their unanimous opinion, that in all cafes of leafes at will of farms of land to hold from year to year, and fo for as long time as both parties fhall please, that before the landlord can have title to bring ejectment against the tenant at will, he must give the tenant half-a-year's notice to quit poffeffion of the farm: And they held the like law as to houfes (a) let at will, unless there be fome ufage or cuftom, in the place or district where the houfe is fituate to give a forter or other kind of notice to quit. 58. On a demife from year to year commencing on the 10th of October, the tenant died on the 27th of August following. The landlord gave notice on the 9th of September to the executor to quit the premiffes at the end of the term. The court court held clearly that, in a common cafe it would not be fufficient notice; and Lord Mansfield strongly inclined that as regular notice had not been given the executor might, in this cafe hold the farm another year. 59. Where one in remainder, after the expiration of an eftate for life gave notice to the tenant to quit on a certain day, and afterwards accepted half a year's rent, fuch acceptance, being only evidence of a holding from year to year, is rebutted by the previous notice to quit, and therefore fuch notice remains good, although it was not half a year's notice, ending on the day the tenancy commenced. but 60. A tenant from year to year may prove, in an action of ejectment, that the time the term commenced was different from the time to quit mentioned in the notice; a notice to quit at Lady-day fhall be admitted as prima facie evidence of a holding from Lady-day to Lady-day (a), until the contrary be fhewn; and fo from any other of the feaft days, or other commencement of a demife. Murgatroyd's Duncome's Lord Mansfield (a) Vide ante and 2 Bl. Rep. 1224. Penruddock vi Harris, before Mr. Baron Eyre at Dorchefter Affizes, 1784. 61. A perfon took a houfe under a parol demife on the Right v. Dar11th May, 1781, the rent to commence from Midfummer Term 26 Geo. ley, Eafter following. On the 26th March, 1785, the tenant was 3. ferved with a notice to quit on the 29th September following. The question was, Whether the rule which requires half a year's notice to be given to a tenant at will, alfo requires that fuch notice fhould expire at the end of the year; and the court held that it must so expire with the end of the year. 62. The cafe of lodgings depends upon the particular con- Term Rep. tract under which they are taken, and is an exception to the 163. general rule: The agreement may be for a month, or less time, and then a much fhorter notice to quit would be fufficient, where the tenant has held over the time agreed upon. 63. Where an infant becomes intitled to the reverfion of Baker v. an estate leafed from year to year, he cannot eject the te- White. 2 Term nant without giving the fame notice as the original leffor Rep. 159. must have given. 64. By the custom of London a tenant at will under the Bac. Abr. 689. yearly rent of forty fhillings fhall not be turned out without a quarter's warning; and a tenant paying above forty fhillings yearly is not to be turned out unlefs half a year's warning be given: and in all cafes when the rent is made payable half yearly there must be half a year's notice to quit. |