on account, but that the plaintiff, in accepting it, did not expressly waive any right which he then had (if he then had any) to prosecute and maintain his suit, but, on the contrary, then expressly declared that he did not waive any such right.

The plaintiff claimed, upon the facts so found by the court, that the law was so that the defendant håd, within the legal intent and meaning of the lease, "neglected" to pay the rent on the first day of April, and that, consequently, the lease did on the same day expire and terminate; but the defendant contended that upon the facts the law was so, that he did not, within such legal intent and meaning, "neglect" to pay the rent. Upon this question of law the court sustained the claim of the plaintiff, and held that, upon the facts so found, the defendant had "neglected" to pay the rent, and that consequently the lease did, on the 1st day of April, 1859, expire and terminate.

The plaintiff in error assigned as errors-1st. That the justice held that the right to insist on the forfeiture for non-payment of the rent due on the 1st of April, 1859, had not been waived by the subsequent acceptance of the rent on the 4th of April, 1859; and 2d. That the justice held that the lease was determined on the 1st of April, 1859, by the non-payment of the rent due on that day, when no demand had been made for the rent.

Doolittle and Bronson, for the plaintiff in error.

C. R. Ingersoll, for defendant.

The opinion of the Court was delivered by

STORRS, C. J.-We do not find it necessary to decide whether, by the acceptance of rent which fell due before the alleged determination of the lease, the lessor waived his right to repossess himself of his estate. The current of authority is against such a doctrine, although the opposite view of the law is not wholly unsupported. Coon vs. Brickett, 2 N. Hamp. 163. It is generally maintained that an entry for condition broken ought not at all to affect the right to receive payment of a pre-existing debt, or the acceptance of payment of such a debt to affect the right of entry.

Nor do we determine whether the effect of such an acceptance can be qualified by a landlord's declaration, at the time of the acceptance, that he does not thereby mean to waive any right. High authority sanctions the idea that the acceptance of rent accruing after condition broken, is in law a waiver of the forfeiture, and not evidence of such waiver merely. It has also been said by judges of great eminence, that the right of the party who pays money to control its application, constrains the lessor who receives rent, tendered as such, to waive his claim of forfeiture.

The only point which we propose to settle as the law of the present case, is that upon the facts stated there was no legal determination of the lessee's estate.

Our statute of summary process recognises no other termination of leases than such as is effected by force of the contract itself. It supersedes none of the common law remedies of the landlord, except in respect of the notice to quit and the form of procedure by action. It follows, that the question whether the tenant's rights have ceased must be settled according to a common law interpretation of the instrument of demise. In some States, precise legal consequences are annexed by statute to the non-payment of rent, and the lessee is arbitrarily divested of his estate. Our statutes contain no such provision.

The lease in evidence was for three years, ending on the first day of April, 1861. It contained a covenant of quiet enjoyment for the full term, with a qualification thus expressed." he [the lessee] keeping all the covenants on his part." One of these covenants was for the payment of a quarterly rent upon certain quarter days named. In a subsequent part of the instrument is a proviso of the following tenor: "Provided, however, that if the lessee neglects to pay the rent, &c., then this lease shall thereupon, by virtue of this express stipulation therein, expire and terminate, and the party of the first part may, at any time thereafter, re-enter said premises, and the same have and possess as of his former estate." Again, the parties agree that so long as the lessee's occupation continues, (referring to a holding over by consent,) the written agreement shall be evidence "of the conditions, stipulations and agreements under

which he occupies." It will be observed that the draughtsman of the contract designs to make use of technical language; and we have, in the first place, the clearest expression of a condition annexed to the covenant for the tenant's peaceable enjoyment of estate. Next, we have the correct commencement of a condition -"provided however"-in the very stipulation which is said to terminate the lease, and we have, at the close of the stipulation, a re-entry clause-the apt formula to indicate how a forfeiture is to be enforced: Best, C. J., in Willson vs. Phillips, 2 Bing. 13. Last of all, we have an explicit reference to the "conditions" of the instrument by that very name. It was the clear intent of the parties, whatever they may have supposed to be the legal consequences in detail of such a stipulation, to attach to the demise a condition for the lessor's benefit, upon the breach of which he was authorized to compel the tenant to submit to a forfeiture of his tenancy.

The legal interpretation of the instrument agrees with this manifest intent. There is no peculiar significance to the words "shall expire and terminate." They mean just as much, and just as little, as would the more common phrase, "shall become void," if inserted at the same place. Indeed, it appears that both terms were em ployed together in a lease, the construction of which was the subject of determination in the case of Jackson vs. Harrison, 17 Johns. 66. It was there provided, that in case the rent should not be paid "it should be lawful for the lessor to re-enter," &c., and that "the lease and estate thereby granted should cease, determine, and become utterly void, if the lessor should elect so to consider it.” It is well understood, that such expressions as these in leases for years do not designate the non-payment of rent as an event, like a death or a marriage, at the date of which an estate shall cease at all events. If so, it would be in the power of the tenant, whenever his leasehold property became unprofitable or onerous, to relieve himself at any pay-day of his duty to retain it, by simply violating his own covenants. Such a construction would be a plain perversion of the intent of the parties. Accordingly, such stipulations are now universally taken to be for the advantage of the landlord.

"Void" means "voidable at his election:" Jones vs. Carter, la Mees. & Wels. 718. "Expire and terminate" is also an elliptical phrase, meaning "expire and terminate at the lessor's option." This principle of construction leaves us nothing to do with a distinction, which is said to prevail between freehold interests and leases for years, requiring in one case, and not requiring in the other, an entry or claim to divest an estate wholly void by the breach of a condition. In cases like the present, the estate is not wholly void by reason of a breach. Its avoidance is contingent upon the acts of the reversioner. Compare Shep. Touch., pages 139 and 184; see, also, Doe vs. Bancks, 4 B. & Ald. 401. To ascertain the law of the case in hand we must fill up the ellipsis. The lease is to expire and terminate after non-payment, at the option of the lessor, who may then re-enter and annul the tenancy.

This rendering of the contract makes the duration of the lease contingent on the exercise by the lessor of his right to terminate it. To denote how this is to be done, the instrument, fairly read, implies that a re-entry shall take place; the usual technical mode prescribed in such contracts, indicating, in the case of estates less than freehold, not necessarily a literal entry, but some proceeding that should in a significant and decisive manner declare the forfeiture of the lease and assert the landlord's rights.

If a tenant's right is thus voidable only, the option to avoid must be exercised under the contract and according to legal usage. The re-entry clause, at all events, creates a necessity for some positive act of the landlord, to determine his tenant's estate. In construing a lease which authorized the lessor, upon the lessee's neglect to perform his covenants, to enter without further demand and notice, and to dispossess the latter, the Supreme Court of Massachusetts held that, inasmuch as a condition and not a limitation was created by the words employed, the estate of the tenant was not avoided by the neglect, and could only be terminated by re-entry: Fifty Associates vs. Howland, 11 Met. 99. Since the present case was decided, we have learned that this doctrine was involved in a decision of the Queen's Bench, Bishop vs. Trustees of Bedford Charity, 28 L. Jour. 215, which was afterwards reviewed in the Exchequer

Chamber. The doctrine itself does not appear to have been disputed. The defendants, owners of certain premises, were charged with being also in possession of them, and therefore liable for an injury suffered through their negligent condition. They had been leased for thirty years, subject to a right of re-entry for the nonpayment of rent. The lessee failed to pay, went into bankruptcy, and left the occupancy of the premises to his weekly lodgers, who, as such, had of course no estate in them. From these persons the defendants, before the accident, had collected rent, and after it, by a decree of the Court of Insolvency, obtained a surrender of the lease itself. To establish possession in the defendants, the judges of the Exchequer Chamber held that it must appear that they had by re-entry avoided their tenant's lease; that the receipt of rent from the weekly lodgers was no proof of re-entry, as it was consistent with the continued existence of the lessee's tenancy; and that, as no demand was proved, the defendants had not asserted in fact their rights under the re-entry clause, and therefore could not be said to be in possession of their property at the time of the injury.

Where a lease is thus voidable, the landlord's option to avoid it should be exercised at the proper point of time, and in the proper place; and, above all, should be brought home to the tenant's knowledge through some unequivocal act, in order to certify to him that he is absolved from the further performance of a lessee's duties. "Where," to quote Baron Parke, "the terms of a lease provide that it shall be avoided by re-entry, either in the case of a freehold lease or a chattel interest, an entry, or what is tantamount thereto, is indispensable."

Assuming, then, that it devolves on the lessor to take active measures to enforce his right of avoidance, we cannot doubt that no such forfeiture should be suffered, as for a breach of duty, unless the performance of the duty is first demanded or requested. This principle is illustrated in a striking manner by the case of Merrifield vs. Cobleigh, 4 Cush. 182, where the controversy related to a freehold estate. "Whenever," so ran the covenant, "the grantee shall neglect or refuse to support" a certain fence, "this

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