CHAPTER X. OF THE PROCEEDINGS TO RECOVER POSSESSION. See No. 106. SECTION I. When the proceedings may be taken. 345. In case the Rent-Charge be in arrear for forty days. The section giving the remedy by Entry requires the Rent-Charge to be in arrear for the space of forty days. This proceeding, therefore, may be taken on the 11th February for Rent-Charge due the 1st of the preceding month of January; on the 12th May for Rent-Charge due the 1st April; on the 11th August for Rent-Charge due the 1st July; and on the 11th November for Rent-Charge due the 1st October. 346. It does not appear requisite that any previous notice of intention to distrain should be given. Proceedings have been taken to recover possession without such notice, yet in the cases where applications have been made to the court, or to a judge to set aside the proceedings, no question has been raised on this point. 347. A demand of Rent-Charge is only a formal means to recover that which is due, and therefore it may be demanded after it is behind, at any time, whether the tenant be present or no; for remedies for rights are ever favourably extended; for this is not like a demand of rent upon condition, because that is penal, and overthroweth the whole estate.-Co. Litt. 153 b. 348. And where a Rent-Charge was granted, with power to the grantee, in case the Rent-Charge should be in arrear for a certain space of time, to enter and enjoy the lands charged, and to receive the rents for his own use until satisfaction of the arrears, it was held that the grantee may, upon the rent becoming arrear, maintain ejectment against the terre tenant, without proof of a previous demand of the RentCharge. Doe v. Horsley, 1 A. & E. 766. 349. The notice, however, being in effect a demand of the Rent-Charge, (although no formal demand is necessary,) and as it may probably lead to the payment of it, and the difficulty of service having been removed by the Act of the 5 & 6 Vict. it may be advisable to serve or affix it on the premises. 350. But, at all events, where there is any doubt as to there being a sufficient distress, the notice should be given, and the broker go to distrain. 351. No sufficient distress. The Act 2 W. & M. sess. 1, c. 5, s. 2, directs the goods and chattels to be sold towards satisfaction of the rent and the charges of the distress, appraisement, and sale (No. 229). Therefore, if the effects on the premises would not satisfy the Rent-Charge, with these charges, they are insufficient as a distress. 352. Between landlord and tenant, under the stat. 4 Geo. II. c. 20, it was held that every part of the G premises must be searched (Rees v. King, cited 2 B. & B. 514; Forest, 19); unless the tenant prevented the landlord from having access to the premises, as by locking the doors; for a distress which cannot be made without a trespass is no available distress within the Act.-Per Tenterden, C. J.; Doe v. Dyson, M. & M. 77. 353. And Mr. Baron Alderson, Mr. Justice Wightman, and Mr. Justice Cresswell, have issued orders for writs to assess arrears of Rent-Charge in Camberwell and Kennington, where admission to the premises for the purpose of distraining has been refused by the occupiers, and they keeping their gates fastened.-Re Camberwell Rent-Charge, Allotments 590, 679, 682, Re Kennington Rent-Charge Allotments 208, 901, 938, 939, 953. 354. Between landlord and tenant, it was held, that evidence that there was no sufficient distress on the premises on a certain day between the day when the rent became due and the service of the declaration in ejectment, was sufficient prima facie evidence of there being no sufficient distress.-Doe v. Fuchau, 15 East, 286. 355. In the case of the Camberwell Rent-Charge, Allotment 606, Hilary Term, 1843, Q. B., where it appeared that the owner of the Rent-Charge had permitted the arrears to run for four half-years, and that during each half-year, and up to a period after the twenty-one days from the fourth half-year becoming due, there had been a sufficient distress; it was held that the owner of the Rent-Charge was not bound to distrain every half-year, or immediately after the expiration of the twenty-one days, but that the statute was satisfied by there being no sufficient distress when the owner of the Rent-Charge went to distrain, and the Court discharged the rule to set aside the proceedings with costs.-7 Jur. 128. 12 Law J. N. S. 155. 4 Ad. & E. N. S. 151. 3 Gale & D. 365. 356. It will, however, be observed, that the 84th section, as to Quakers, is very strong,-that no writ is to issue unless the Rent-Charge be in arrear for forty days, without the person entitled thereto being able to find goods on the premises or elsewhere. The true construction of this clause, however, seems to be, that if the owner of the Rent-Charge is unable to find goods at the time he determines on making the distress, it is sufficient. Otherwise he must give notice of distress on the 11th day after the Rent-Charge becomes due, and from the 21st to the 40th day watch and seek for effects, which, as observed by Mr. Justice Patteson, in the case just alluded to, could never have been the intention of the legislature ;-and also otherwise it would be necessary to oppress the Quakers by half-yearly distresses. The present participle, "being," and not the past, "having been," favours the interpretation here contended for. 357. A distinction, however, must be made between there being in fact sufficient property in value upon the premises, and there being in law a sufficient distress. Not only may the property be privileged from distress, but the expense and loss in converting it into money are to be considered. A on it field of grass, for instance, may of itself be sufficient to satisfy the arrears, but to place one man by day, and another by night, until it is fit to be cut, (which would be necessary if there be no covered building on the field,) may render it, after paying the expenses, insufficient. 358. In the case of the Camberwell Rent-Charge, Allotments 232, 236, and 241, 242, application was made to set aside writs to assess the arrears of RentCharge, on the ground that there was property to a considerable amount on the premises. The allotments were nursery-grounds and market-gardens, and the property consisted not only of shrubs and flowers, but also of cabbages, lettuces, and the like vegetables. The application, however, was afterwards abandoned, prior to the hearing before the Judge, the Counsel who made it having discovered that such effects were either not the subjects of distress, or that if distrainable, the keeping possession until ripe, and the gathering of the produce with the appraisement and sale, would be attended with greater expense than the same would realize on sale. But it is conceived that a growing crop of cabbages, or lettuces, or the like vegetables, is not a product within the statute 11 Geo. II., No. 233. 359. It has already been observed, (Nos. 352, 353,) that to constitute a sufficient distress, it must be such as the distrainer can obtain without committing a trespass, or otherwise infringing the law. 360. On the premises liable to the payment thereof. These words apply to the premises primarily charged, and do not necessarily include allotments in the parish |