Enforcing forfeiture. By whom lease may be determined under proviso for re-entry. Forfeiture under proviso. premises will forfeit his estate for breach of a covenant relating to the other part (p). After a grant of the reversion neither the lessor nor the assignee can take advantage of a forfeiture incurred before the grant (q); nor can the lessor enforce the forfeiture against a purchaser of the lease whom he has advised, after the cause of forfeiture, to purchase; unless under special circumstances, as where the purchaser was already interested in the lease as incumbrancer, and the lessor's advice was simply that he should "take to" the premises (r). (ii) Where there is an Express Proviso for Re-entry. The construction of a proviso for re-entry by the lessor on non-performance by the lessee of the covenants of the lease, and that upon such non-performance the term shall cease and become void, is that the lease shall be voidable (s), and voidable only at the option of the lessor; for the lessee who has been guilty of a wrongful act cannot avail himself of the wrongful act to insist that thereby the lease has become void to all intents and purposes (t), and the tenancy will therefore continue until some act is done by the lessor showing his intention to determine (u). And it is the same where the condition is incorporated in favour of the Crown by statute (x). A proviso for re-entry in case of breach or non-performance of covenants or stipulations applies to a provision against assignment though not strictly in the form of a covenant (y). Where the lessor is entitled to re-enter "as if the indenture had never been made," he is not debarred from suing on the covenant for rent accrued before the forfeiture (z). It has been doubted (p) Darlington v. Hamilton (1854), Kay, 550; Creswell v. Davidson (1887), 56 L. T. 811. (q) Fenn v. Smart (1810), 12 East, 444. (r) Doe v. Eykins (1824), 1 C. & P. 154. (8) Bowser v. Colby (1841), 1 Hare, 109. (t) Judgment of Bayley, J., in Doe v. Bancks (1821), 4 B. & A. p. 406; Reid v. Parsons (1817), 2 Chit. 247; Rede v. Farr (1817), 6 M. & S. 121; Arnsby v. Woodward (1827), 6 B. & C. 519; Dakin v. Cope (1827), 2 Russ. 170; Doe v. Birch (1836), 1 M. & W. 402; Jones v. Carter (1846), 15 M. & W. p. 725; Toleman v. Portbury (1871), L. R. 6 Q. B. p. 250; Re Tickle (1886), 3 Morr. 126. Formerly a condition that the lease should be void was construed literally: Pennant's Case (1596), 3 Rep. 64 b. See 1 Sm. L. C. 11th ed. 42. (u) See judgment of Denman, C.J., in Roberts v. Davey (1833), 4 B. & Ad. p. 671. (x) Davenport v. Reg. (1877), 3 App. Cas. 115. (y) Brooks v. Drysdale (1877), 3 C. P. D. 52. (z) Hartshorne v. Watson (1838), 4 Bing. N. C. 178. Cf. Blore v. Giulini, [1903] 1 K. B. 356. whether non-insurance is a cause of forfeiture if under the lease the lessor is entitled to insure upon default, and to distrain for the premium (a). forfeiture. It is for the lessor to prove that the forfeiture has been Proof of incurred. Hence, in forfeiture for breach of a covenant to insure, the omission to insure must be proved by the plaintiff. It is not sufficient that the lessee fails to produce the policy (b). The Court will not grant discovery of documents or give leave to administer interrogatories for the purpose of establishing a forfeiture (c). during hold ing over. A proviso for re-entry can operate only during the existence Forfeiture of the term; hence it cannot be exercised so as to deprive a tenant, who is holding over, of his right to emblements (d). But if the tenant by paying rent while he is holding over becomes a yearly tenant, the proviso for re-entry on non-payment of rent attaches to this yearly tenancy (e). A proviso for re-entry on breach of covenant contained in an agreement for lease was formerly held to apply to the yearly tenancy created by possession and payment of rent under the agreement (f); and such a proviso is now, it is conceived, enforceable in the case of an agreement for a lease to which the doctrine of Walsh v. Lonsdale (g) applies. rent. Before advantage can be taken of a proviso for re-entry for Demand of non-payment of rent, a formal demand of rent must be made (h); unless such demand has been either expressly dispensed with in the proviso or condition (i), or one half-year's rent is in arrear and no sufficient distress can be found on the premises (k). The demand must be of the sum due for rent for the last term of payment (1), and must be made at a convenient time before sunset (a) Doe v. Sutton (1841), 9 C. & P. 706. (b) Doe v. Whitehead (1838), 8 A. & E. 571. See Doe v. Robson (1826), 2 C. & P. 245. (c) E. of Mexborough v. Whitwood Urban District Council, [1897] 2 Q. B. 111; overruling Seaward v. Dennington (1896), 44 W. R. 696. (d) Johns v. Whitley (1770), 3 Wils. 127, p. 140. (e) Thomas v. Packer (1857), 1 H. & N. 669. (f) Doe v. Amey (1840), 12 A. & E. 476; Doe v. Breach (1806), 6 Esp. 106. L.T. (g) (1882), 21 Ch. D. 9; supra, p. 81. (h) Doe v. Robson (1826), 2 C. & P. 245; Hill v. Kempshall (1849), 7 C.B. 975. See Jackson v. Northampton Tramways Co. (1886), 55 L. T. 91. (i) Doe v. Masters (1824), 2 B. & C. 490. (k) 15 & 16 Vict. c. 76, s. 210, (1) See Doe v. Paul (1829), 3 C. & K K 15 & 16 Vict. c. 76, s. 210. Where one half-year's rent is in arrear and landlord has right to re instead of formal demand, serve on the last day of payment (m), and continued till sunset (n). The demand must be made upon the land: if there is a house on the premises, at the front door of such house (o); or if the premises consist of lands and woods upon the lands (p); or if they consist of woods only, at the gate of the wood, or at some highway leading through it, or other most notorious place (q). It is not material whether the tenant is there or not (o). The demand may, in the absence of the lessee, be made upon an undertenant or other stranger to the lessor (r). If tender of the rent is made to him who is to receive it upon any part of the land, at any time on the last day of payment, the tender will save the condition (q). Under certain circumstances the demand of the rent may be dispensed with, the 210th section of the Common Law Procedure Act, 1852, providing as follows: "In all cases between landlord and tenant, as often as it shall happen that one half-year's rent shall be in arrear (s), and the landlord or lessor, to whom the same is due, hath right by law to re-enter for the non-payment thereof (t), such landlord or lessor shall and may, without any formal demand or re-entry, enter, he may, serve a writ in ejectment for the recovery of the demised premises, . . . which service in ejectment shall stand in the place and stead of a demand and re-entry; and in case of writ in eject judgment against the defendant for non-appearance, if it shall be made appear to the Court where the said action is depending, by affidavit (u), or be proved upon the trial in case the defendant. appears, that half-a-year's rent was due before the said writ was served, and that no sufficient distress was to be found (x) on the demised premises countervailing the arrears then due, and that the lessor had power to re-enter, then and in every such case ment. (m) Co. Litt. 202 a; Doe v. Paul, supra. See Acocks V. Phillips (1860), 5 H. & N. 183. (n) See Wood and Chivers' Case (0) Co. Litt. 201 b. (r) See Doe v. Brydges (1822), 2 (8) There is not a half-year's rent in arrear if, though originally the arrears were greater than this, they have been made less by distraint: Cotesworth v. Spokes (1861), 10 C. B. N. S. 103. (t) The time prescribed before reentry must have elapsed: Doe v. Roe (1849), 7 C. B. 134. (u) See Cross v. Jordan (1852), 8 Ex. 149. (x) Doe v. Franks (1847), 2 C. & K. 678. If the tenant has locked up the demised premises, it may be held proved that no sufficient distress is "to be found" there. See Hammond v. Mather (1862), 3 F. & F. 151; Doe v. Dyson (1827), M. & M. 77; Doe v. Roe (1847), 5 D. & L. 272. the lessor shall recover judgment and execution, in the same manner as if the rent in arrear had been legally demanded, and a re-entry made." The above enactment, in the cases to which it applies, dis- Re-entry. penses both with demand and also with re-entry. The question whether, in general, re-entry was necessary before bringing ejectment on a forfeiture for breach of covenant was avoided under the old practice by the circumstance that the defendant, the lessee, by entering into the consent rule, confessed the lessor's entry. Consequently an actual re-entry was not necessary (y). Under the present practice the supposed re-entry does not take place, but the right of the lessor is not thereby affected, and he can still bring an action to recover possession without previously entering on the land (2). For the purpose of taking advantage of the forfeiture, bringing the action is equivalent to actual entry (a). The commencement of proceedings, consequently, is a final election by the lessor to determine the term, and, even though no judgment is obtained, he cannot afterwards treat the tenancy as subsisting, so as to sue for rent due, or covenants broken, subsequently to such commencement (b). There is a final determination of a tenancy under a lease when the lessor by some final and positive act which cannot be retracted-for instance, by issue of a writ for recovery of possession and service of it upon the tenant in occupationtreats a breach of covenant by the lessee as constituting a forfeiture (c). A reletting of the premises by the lessor to an undertenant of the lessee is a sufficient re-entry to avoid the lease (d). Where a lease to a company contains a power of re-entry upon Entry upon the company being wound up, the landlord's right to re-enter winding-up. accrues on the making of a winding-up order, and is not deferred until the conclusion of the winding-up (e). (iii) Waiver of Forfeiture. A forfeiture is waived if the lessor elects not to take advantage of it, and shows his election either expressly, by a statement to M. & W. 718. (y) Goodright v. Cator (1780), 2 Dougl. 477. (2) Ware v. Booth (1894), 10T. L.R. 446. The question was left undecided in Ex parte Dyke (1882), 22 Ch. D. 410. (a) Grimwood v. Moss (1872), L. R. 7 C. P. 360, per Willes, J., at p. 364. (b) Jones V. Carter (1846), 15 (c) Serjeant v. Nash, Field & Co., C. A., [1903] 2 K. B. 304, at pp. 310, 313, approving Grimwood v. Moss, supra. (d) Baylis v. Le Gros (1858), 4 C. B. N. S. 537. (e) General Share, &c., Co. v. Wetley Brick Co. (1882), 20 Ch. D. 260. Acts amount that effect to the lessee, or impliedly, by acknowledging the continuance of the tenancy (ƒ). And if the lessor, after a cause of forfeiture has come to his knowledge, does anything whereby he recognizes the relation of landlord and tenant as still subsisting, he is precluded from saying that he did not do the act with the intention of waiving the forfeiture (g). Direct notice of the cause of forfeiture to the lessor is perhaps not necessary if such cause is equally within the cognizance of himself and the lessee (h), but in general both knowledge on the part of the lessor (i), and a positive act affirming the tenancy (k), are necessary to constitute a waiver. Mere acquiescence, as by standing by and seeing the lessee making alterations which are in breach of covenant (1), is not sufficient (m). A tenancy is affirmed, and-assuming knowledge on the part ing to waiver of the lessor-the forfeiture is waived, under the following circumstances: 1. Receipt of rent. (1) Acceptance by the landlord from the tenant of rent which has accrued due since the cause of forfeiture (n). The rule applies to a Crown lease (o), and to receipt of rent from an undertenant (p), or from any other person, in satisfaction of rent (q). Payment into the lessor's banking account has been held to be a waiver, where such payment was usual, although the lessor had instructed the bank not to receive it, no step having been taken to inform the lessee or to return the rent (r). And the acceptance of subsequent rent bars a forfeiture for condition broken, as well as a forfeiture depending upon an (f) Ward v. Day (1864), 5 B. & S. p. 362. See Ex parte Newitt (1881), 16 Ch. D. 522. (g) Toleman v. Portbury (1871), L. R. 6 Q. B. 245, p. 248. And see this case as to setting up two inconsistent grounds of forfeiture. (h) Harvey v. Oswald (1597), Cro. Eliz. 553, 572. (i) Pennant's Case (1596), 3 Rep. (k) Green's Case (1582), Cro. Eliz. 3. C. B. N. S. 769. 3 (m) Per Heath, J., in Doe v. Allen (1810), 3 Taunt. p. 81. (n) Goodright v. Davids (1778), Cowp. 803; Pennant's Case (1596), 3 Rep. 64 b, note (B); Arnsby v. Wood ward (1827), 6 B. & C. 519; Doe v. Rees (1838), 4 Bing. N. C. 384; Doe v. Pritchard (1833), 5 B. & Ad. 765; Miles v. Tobin (1868), 17 L. T. 432; Pellatt v. Boosey (1862), 31 L. J. C. P. 281. See Whitchcot v. For (1617), Cro. Jac. 398. As to the distinction in Pennant's Case (1596), 3 Rep. 64 b, between leases which are void and those which are voidable on breach of condition, see 1 Sm. L. C. 11th ed. 42; supra, p. 496. (6) Bridges v. Longman (1857), 24 |