Jones v. Reed

15 N.H. 68 | Superior Court of New Hampshire | 1844

Gilchrist, J.

By the terms of the lease to Bodge, the rent is to be demanded upon the demised premises; and the question raised upon the facts stated is, whether a demand was made at a proper time to cause a forfeiture of the lease.

In the case of Cranley vs. Kingswell, Hobart 207, it is said, “ but where a penalty or reentry is joined to the thing, there you cannot take advantage of the pain or forfeiture without a demand at the very time prefixed.” Grobham vs. Thornborough, Hob. 82. The demand ought to be made precisely at the day, a convenient time before sunset. Maund’s Case, 7 Co. 28. This rule of the common law lias been adhered to by the more modern decisions. Dor vs. Wandlass, 7 T. R. 117. in pronouncing the judgment of the court in the case of Jackson vs. Harrison, 17 Johns. 70, Mr. Justice VanNess said, "this is a proceeding at common law, and the claim of the plaintiff being stricti juris, all the niceties required by the common law must be complied with. There must be a demand of the rent on the last day, a convenient time before sunset.” In that case the demand was in the afternoon, at the house of the lessee; and it was held that upon such a demand the right to reenter did not accrue. It is said by the court, " the agent says he made the demand ‘ in the afternoon.’ Now this may have been immediately after 12 o’clock, and a demand at so early an hour would not be good. The last time of the demand of the rent,’ says Lord Coke, is such a convenient time before the sun setting of the last day of payment, as the money may be numbered and received.’ This may appear to be unnecessarily rigorous, and a 'sacrifice of substance to form; but when it is considered that the consequence ox a proceeding of this kind is the forfeiture of the tenant’s whole interest under the lease, every necessary form which the law has prescribed must be most scrupulously observed.” Remsen vs. Conklin, 18 Johns. 450 ; McMurphy vs. Minot, 4 N. H. Rep. 251; Sperry vs. Sperry, 8 Ditto 477.

These rules thus recognized show that all the demands for rent prior to that on the 17th of February, 1843, were insufficient for the purpose of creating a forfeiture of the lease. Supposing the demand on that day to have been sufficient, still the forfeiture is saved by the provision in the lease, to the effect that it shall not happen until after the rent shall have been unpaid for the space of a year, and after a reentry by the trustees or their agent. All the rent due on the lease from Dodge having been tendered by Reed in the course of the year, there is no ground on which the lease can bo considered as forfeited. There must, therefore, be

Judgment for the tenant.