Jackson ex dem. Van Rensselaer v. Collins

Kent, Ch. J. delivered the opinion of the court. The defendant contends that as the suit is for a forfeiture of the lease,, for the non-payment of rent, the lessor of the plaintiff was bound to have shown upon the trial, either that no sufficient distress was to be found upon the premises, to entitle him to recover under the act of the 21st of February, 1788, s. 23. (and which was copied from the statute of 4 Geo. II. c. 28.) or that they were bound to show a regular demand of the rent with all the nicety and precision required by the rules of the common law. (See these rules collected in 1 Sound. 287. n. 16.) In Roe, ex dem. West, v. Davis, (7 East, 363.) Lord Ellcnborough held it not to be indispensable in an ejectment under the statute to prove that no sufficient distress was to be found. But this, though perhaps the most liberal, was not the hitherto received construction of the act; for in the cases of Doe, ex dem. Hitchings, v. Lewis, (1 Burr. 614.) Goodright v. Castor, (Doug. 485, 486.) and of Doe, ex dem. Forster, v. Wandless, (7 Term Rep. 117.) the court of K. B. consider it as a given point, that the plaintiff must prove either a demand or no sufficient distress; and in Jackson v. Wilson, in this court, (3 Johns. Cases, 295.) the same doctrine was recognised. Nor can we discern, on a careful examination of the statute, sufficient ground for adopting the new, and rejecting the long settled previous construction. The counsel for the plaintiff contend, however, that admitting the general rule, a regular demand was not requisite in this case, as the defendant, on being applied to for the rent, not only refused to pay, but disclaimed holding under any lease from the Van Rensselaer family, and asserted that he held under a warranty deed; and it was further shown in confirmation of his disloyalty, that for the better part of the premises he had agreed, [5] by covenant, to accept a deed from a stranger. The defendant having thus disaffirmed and denied the title of the lessor, and the relationship of landlord and tenant, there is great weight in the objection that he ought not to be allowed to set up the want of a technical demand of the rent. The disclaimer proves that such an act had become unnecessary and useless. The demand was given for the benefit of the lessee, and was required for his protection under his lease, but, as was said by the court in Dormer’s Case, (5 Co. 40. 46.) the act might be dispensed with by his consent, and the disclaimer is at least equal in effect to an express waiver on the part of the tenant of the requisite demand. If he denies the holding altogether, it would be vain and idle to require the landlord to go on and make a regular demand at the precise time, and of the precise sum due. The disclaimer by parol might not have been sufficient in this case to amount of itself to a forfeiture of the lease. That is not the point in the case. But it is sufficient to excuse the plaintiff from the necessity of a regular, formal demand of the rent, in like manner as the act or declaration of the opposite party-will, in many cases, supersede the necessity of a formal tender, and in like manner as such a disclaimer will excuse the omission of a notice to quit. The plaintiff is accordingly entitled to recover to the whole extent of the lands contained in the lease- judgment for the plaintiff N. B. In the case of Jackson, ex dem. Van Rensselaer, v. Defriest, which was argued at the same term, the court alscs gave judgment for the plaintiff, as depending on the same principies as the above case?