Remsen v. Conklin

Spencer, Ch. J. delivered the opinion of the Court. There is a distinction running through the books between a proceeding by the lessor, with'a view to a forfeiture of the estate of the tenant, or to impose a penalty on him, and a proceeding to recover the rent in an action of covenant, or by distress. In the two former cases, there must be a strict demand of the rent on the very day it is payable. In the latter cases, there need not to be a previous- demand, although the rent be payable on demand. But in such case, the rent must be payable on the land ; and then it would be a good defence for the tenant, that he was ready on the land to pay, had the lessor been there to receive it. There is another distinction ; if the rent be payable at a place off the land, with a clause, that if the rent be behind, being lawfully demanded at the place off the land, and a distress is given, the lessor cannot distrain without a previous demand. Bac. Abr. Rent, (I.) I am inclined to the opinion, that as the rent was in this case payable at such place in the city of Albany as the lessor should, from time to time, appoint, and this being for the benefit of the landlord, and to the prejudice of the tenant, that it became the duty of the landlords, if they would have the rent payable there, to make the appointment, and give notice to the defendant; and in case this appointment was not made and notice given, the consequence would be, that the defendant would be absolved from delivering the wheat in Albani/ ; butstili he would be bound to deliver it on the land, for rent issuing out of land, where no place is appointed, is payable on the land ; (1 Inst. ¿10, 211. Bac. Abr. Tender, (C.) and' hence, it became necessary for the defendant to plead a tender, or a readiness to deliver the [451] wheat upon the land, bad. The plea not having stated this, is Judgment for the plaintiff, with leave to the defendant to amend, on payment of costs.