deed shall be void." The court held that, until there was a de mand upon the grantee to repair the decayed fence, there was no breach of the condition. Yet literally, at the point of time when the grantee passively neglected that duty, his title failed. In the case before us no demand was made for the rent. The conversation of April 1st, 1859, however it was or ought to have been understood, is not claimed to have amounted, even by implication, to such a demand.

To prevent future litigation, and to enable parties to make contracts adapted to the view which we take of the law, we go a step beyond the requirements of the case to speak of the formalities necessary to terminate a lease voidable on the non-payment of rent. We confess that we know of no new rules with which to instruct our judgment in this matter, and naturally adhere to the settled doctrines of the common law.

The case of Jackson vs. Harrison was decided by a learned court, and has not been overruled by any of the higher tribunals of the State of New York. The lease in question was for seven years, and provided, as has been stated, for an avoidance and re-entry upon non-payment of rent. The, court held that an entry was essential to the forfeiture claimed, and that none could be made without showing a demand of the rent due, upon the last day of payment, on the premises, and at a convenient hour before sunset. "The plaintiff," says Van Ness, J., "equally fails in showing a right of entry, by reason that the defendant did not pay the United States tax, because the indispensably necessary step of making a demand of the defendant within the period required by law in order to create a forfeiture, was not taken." This decision seems to be a true exposition of the common law.

A late New Hampshire case, McQuesten vs. Morgan, 34 N. Hamp. 400, in its result, accords with our present conclusion, and involves facts of the same general character.

There is error in the proceedings of the magistrate, and we advise that his judgment be reversed.

In this opinion HINMAN, J., concurred.

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ELLSWORTH and SANFORD, JS., were of opinion that our statutes respecting leases had done away with the technical rules of the common law as to getting possession of leased premises, and dissented from the opinion of the Chief Justice.

(1) It has been in general held that the receipt of rent accruing after a breach of covenant by a tenant, which by the provisions of his lease creates a forfeiture of the term, is a waiver by the landlord of his right of re-entry, if he was at the time aware of the forfeiture, but otherwise not, because the act is an affirmance of the existence of the tenancy, and an election by the landlord to treat the lease as still subsisting. Jackson vs. Brownson, 7 Johnson, 227; Camp vs. Pulver, 5 Barbour, 91; Clarke vs. Cummings, Id. 339; Koeler vs. Davis, 5 Duer, 507: Jackson vs. Sheldon, 5 Cowen, 448; McKeldore vs. Darracott, 13 Gratt. 278; Dendy vs. Nicholl, 4 C. B., N. S. 376; Price vs. Werwood, 4 Hurls. & Norm. 511. In Croft vs. Lumley, 5 Ell. & Bl. 648; 6 H. Lds. Cases, 672; Ell., Bl. & Ell. 1069, Am. ed., the question was much discussed. There a lessee tendered rent which had accrued subsequently to breaches of covenant, as rent, but the lessor took it as compensation for occupation, expressly reserving the right of re-entry; it was held by the Queen's Bench to be nevertheless a waiver of the forfeiture. The judgment was affirmed in the Exchequer Chamber, and in the House of Lords on another ground. But in the latter tribunal it was held by a majority of the Judges consulted, Crompton, J., dissenting, that by force of the maxim solutio accipitur in modum solventis, the receipt of the rent operated as a waiver of the forfeiture in respect to such breaches as were known at the time. Erle, J., went farther, and held it to be a waiver also as respects even unknown

Judgment reversed.

breaches, which did not differ in circumstances from those which were known; and Watson, B., held it to be a waiver of all previous breaches. On the other hand, it was the opinion of Crompton, J., that the receipt of the rent was not necessarily a waiver, but that the question was, whether it was in fact received with the intention to waive the forfeiture, and in this Lord Wensleydale appeared to agree.

For the converse reason, the mere receipt of rent due before the forfeiture, will not be a waiver. Jackson vs. Allen, 3 Cow. 220; Hunter vs. Ousterhouldt, 11 Barbour, 33; Stuyvesant vs. Davis, 9 Paige, 427; Bleeker vs. Smith, 13 Wend. 533; though the opposite was held in Coon vs. Bricket, 2 New Hamp. 163. Nor even if after a forfeiture will it operate to relieve from the consequences of subsequent continuance of the original forfeiture. Jackson vs. Allen, 3 Cowen, 220; Bleecker vs. Smith, 13 Wend. 533. But where the landlord distrains for rent due before the forfeiture, with the knowledge of it, it will be a waiver; because that is an act which could only be lawfully done during the continuance of the tenancy. Jackson vs. Sheldon, 5 Bowen, 448; Stuyvesant vs. Davis, 9 Paige, 427; but see McKeldore vs. Darracott, 13 Grattan, 278. On the other hand, after the landlord has taken steps by ejectment to enforce his right of entry, he cannot obtain any relief in equity or at law, which would assume the existence of the tenancy, as by an injunction to prevent the collection of rent by the tenant from sub-tenants; Stuyvesant vs. Davis, 9

Paige, 427; or an action to compel the payment of subsequent rent or the performance of the covenants of the lease. Jones vs. Carter, 15 M. & W. 718.

(2) There is no doubt, as is stated in the foregoing opinion, that weight of authority is that, under the usual clause of forfeiture, the breach of a condition in a lease does not make it absolutely void, but only voidable at the election of the landlord; and that re-entry, or what is equivalent thereto, must be resorted to by him, to enforce the election. In addition to the cases cited in the foregoing opinion, Doe vs. Banks, 4 B. & A. 401; Rede vs. Farr, 6 M. & S. 121; Doe vs. Meux, 4 B. & C. 606; Doe vs. Birch, 1 M. & W. 406; Doe vs. Lewis, 5 A. & E. 277; Clarke vs. Jones, 1 Denio, 577; Phillips vs. Chesson, 12 Ired. 194. But in Pennsylvania, this appears not to be the law; and the breach of condition is held to avoid the lease absolutely: Kenrick vs. Smith, 7 Watts & Serg. 47; Shaeffer vs. Shaeffer, 1 Wright, 527; Davis vs. Moss, 2 Id. 346. But it deserves notice, that the question did not distinctly arise in either of these


The first was substantially that of a vendee under articles, so that the landlord had still the legal title. In the second he had present possession for a limited estate; and the third was that of a mining lease, in which the landlord

had a general possession of the land subject to the mining right.

(3) The established rule at common law has always been, that where a right of re-entry is claimed on the ground of a forfeiture for non-payment of rent, there must be proof of a demand of the precise sum due, on the most notorious part of the demised premises, at a convenient time before sunset on the day when the rent is due. Co. Litt. 202 a; 1 Williams & Saunders, 287; Clun's Case, 10 Rep. 129 a; Cropp vs. Hambleton, Co., Eliz. 48; Wood & Chevor's Case, 4 Leonard, 180; Tinkler vs. Prentice, 4 Taunt. 549; Acocks vs. Phillips, 5 Hurlst. & Norm. 183; and this has been generally followed in the United States. Conner vs. Bradley, 1 How. U. S. 217; 17 Pet. 267; Jackson vs. Harrison, 17 Johns. 70; Remsen vs. Concklin, 18 Id. 450; Jackson vs. Kepp, 3 Wend. 230; Van Rensselaer vs. Jewell, 2 Comst. 147; McCormick vs. Connell, 6 Serg. & R. 153; Stover vs. Whitman, 6 Binn. 419; Gage vs. Smith, 14 Maine, 466; James rr. Reed, 15 New Hamp. 68; Jewett vs. Berry, 20 Id. 46; McQuester vs. Mergher, 34 Id. 400; Chapman vs. Wright, 20 Illinois, 120; Eichart vs. Bargus, 12 B. Monroe, 464; Mackuben vs. Whitecraft, 4 Harr. & John. 135; Yale vs. Crewson, 6 Ind. 65; Phillips vs. Doe, 3 Ind. 132; Gaskill vs. Tramer, 3 Calif. 334.

H. W.

In the New York Court of Appeals.


1. A. made his promissory note in the city of New York, payable generally. He resided at the time in New York, as well as the endorser. Before the note fell due, he removed to New Jersey, where he resided at its maturity. Held, that it was not necessary for the holder, in order to charge the endorser, to present the note for payment at the maker's former place of residence in New York.

1 We are indebted to the courtesy of Judge Davies for the following opinion, for which he will accept our thanks.-EDS. A. L. REG.

2. The cases of Anderson vs. Drake, 14 Johnson, 114, and Taylor vs. Snyder, 3 Denio, 145, commented upon, and the case of Wheeler vs. Field, 6 Metcalf, 290, overruled.

The opinion of the Court was delivered by

DAVIES, J.-This is an action upon a promissory note, made by one George Varden, payable to the order of the defendant, and by him indorsed. The note was dated at New York, where the maker resided at the time, and the indorser resided in the same city. The note was dated May 3d, 1855, and had three months to run. About the middle of June following, the maker removed to the State of New Jersey, and continued to reside there until Sept. 24, 1855. The note fell due August 6th, and was protested, and notice of protest duly given to the defendant. From the facts found, it appears that the notary, on the day the note fell due, made inquiries for the maker at the Post Office in the City of New York, and, to ascertain his residence, examined the City Directory, but the maker's residence, on such inquiry, could not be found. The Judge, upon those facts, found, as a question of law, that the removal of the maker from the State of New York into the State of New Jersey, and his continued residence there up to the maturity of the note, dispensed with the necessity of the demand upon him. The judgment was affirmed at the General Term, and the defendant appeals to this Court.

The only question presented for consideration is, whether the change of residence of the maker, from the State of New York to the State of New Jersey, intermediate the date of the note and its maturity, dispensed with the necessity of presenting the note at the last place of residence of the maker in this State, and demanding payment thereof there. It is not contended that the holder was bound to seek out the maker or his place of residence in the State to which he had removed, for the purpose of presenting the note and demanding payment. But it is urged that the holder should have sought the last place of residence of the maker in this State, and made the presentation and demand there. The Supreme Court of this State in Anderson vs. Drake, 14 Johns. 114, say they had then (in 1817,) in a late case not reported, decided, when the

drawer of a note had removed to Canada, the note being dated and drawn in Albany, though not made payable at any particular place in that city, that a demand in Albany was sufficient to charge the indorser. It is not stated where the demand in that case was made in Albany, and it is not seen, upon the facts stated, how it could have been made, nor is any reason given for making it. It was decided in Anderson vs. Drake, supra, that when a note is not made payable at any particular place, and the maker has a known and permanent residence within the State, the holder is bound to make a demand at such residence in order to charge the indorser. The general rule is, that the holder of a note who seeks to charge the indorser, must demand payment of the note, at its maturity, of the maker, at his place of business or residence. If the note is payable at a particular place, the demand must be made at the appointed place. The holder must use all reasonable and proper diligence to find the maker, when no particular place of payment is appointed in the note. And the case of Anderson vs. Drake, supra, established the rule, that when a change of residence of the maker took place between the making of the note and its maturity, and no place was appointed in the note for its payment, the demand of payment must be made of the maker at his place of residence at the maturity of the note, provided such residence was within this State. Taylor vs. Snyder, 3 Denio, 145, was an action upon a note dated at Troy, in this State, the maker residing in Florida at the time of making the note, and at its maturity. No intermediate change of residence took place. The payment of the note was demanded of the defendant, the indorser thereon, at Troy, and on refusal, was protested, and notice given. Beardsley, J., reviews, ably and elaborately, all the cases where the presentment of the note for payment has been excused, and classifies the exceptions to the general rule, requiring presentment and demand to charge the indorser, and shows they all rest on peculiar reasons. He says: "In one, the maker has absconded; in another, he is temporarily absent, and has no domicil or place of business within the State; in a third, his residence, if any, cannot be ascertained; while in the fourth, he has removed out of the State, and taken up his residence in another

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