1804.

JACKSON

V.

SAUNDERS.

demise. And although in the present case the tenure is not complicated, yet I must have regard to such cases, in consi. dering what is to be the effect of a demand under the statute, and what is to be a reasonable time afterwards for compliance with that demand. The effect of the demand is, to inform the tenant that the life is dropt, if he does not know it before; and to apprize him that it is expected he will use due diligence in paying the fine and accepting a new lease. Then Due diligence is what is due diligence? it is, payment as soon as circumstances will reasonably permit. For instance; if a demand be made on a tenant when resident in a foreign country or at a distance from his own home, the time within which it would be possible for him to comply would be very different from what it would be if he were on the spot: a variety of qualifying circumstances may make that due diligence in one case, which is not so in another.

payment as soon

as circumstan

ces will reason ably permit.

The 6th of October is the day on which I must consider Mr. Jackson to have been informed that due diligence was immediately to be used by him. He had had two years previ ous notice that the fine was due and that his landlord expected payment and required him to renew; he had promised to pay long before, and he had broken his word: the consequence seems to me to be, that he was bound by the indulgence that had been before shewn to him, to use his utmost diligence from the moment the formal demand was made. Qught he not immediately to have written to his agent that he had not the money, but that he must procure it forthwith, to pay Mr. Saunders? Did he do any thing like this? all we know is, that early in the following November, Mr. Peter Jackson says he found in his office a draft of a lease, which evidently had been prepared some time before, as it proceeded on the supposition of two lives only having dropt; but having found this draft, he does no thing in consequence. Then Michaelmas term elapses,

during which it is clear from the evidence, that Jackson gave no direction to his agent in consequence of the notice of the 6th of October. On the 15th of January, 1801, the ejectment is served: even then there is no application, no tender of the money. There was time enough for Jackson to have procured the money in the interval between the 6th October and the 15th of January, and he ought to have procured it; it was only at the rate of half a year's rent reserved on the original lease, for each life, with the usual charge of interest and septennial fines, and he could have had no difficulty in raising it, if due diligence had been used.

On the 20th February, 1801, an intimation is given that the money is ready; but it does not appear to have been produced. However, I will take for granted that it was ready: it is tendered on the 20th March, 1801; I cannot take any thing which previously passed as an actual tender amounting to payment; I can take the letter of the 20th February only as evidence that the money was then in a state of preparation: probably it was prepared in bills; and if the bills were good, and no objection made on that account by Mr. Saunders, it would be too much perhaps to say that that would not have been sufficient: however, that was not the case. But suppose it had been; is the space of time which had been suffered to elapse between the 6th of October and the 20th of February, a reasonable time after the 6th of October? I think not. Jackson not only did not, in my opinion, use due diligence, but did not use common diligence; did not use the fair diligence which in honest dealing between man and man ought to have been used. He plainly meant to delay the payment as long as by any means he could delay it, perhaps fancying he should still obtain the same indulgence which Mr. Saunders had offered him from March, 1799, when he was first called upon to renew, till the

1804.

JACKSON

ข.

SAUNDERS.

6th of October, 1800, when the formal notice was given; a period of above eighteen months.

Under these circumstances, I think I should do a great mischief to the public to hold this a tender in a reasonable time within the meaning of the act. I think a large time may be allowed in some cases; a short time in others: all must depend on the particular circumstances of the case. If I were to say that four or six months, or any specified period, was to be the limitation of the time, (six was insisted on) I must apply that as a rule in all cases; in those where it would be unreasonably long, as well as where it would be unreasonably short. The act has specified no time, and I am called upon arbitrarily to fix a time, to give a fixed rule by the decision of a court of justice, where the legislature has thought fit (and wisely as it seems to me) to give no fixed rule. It is safer and better to hold that reasonable time according to the apparent intent of the act, is in all cases to be judged of by all the circumstances of each particular case; and if a tenant after a formal demand, thinks fit to rest on his oars, and continue that neglect, which according to the letter of his contract would deprive him of his right, the continued neglect is to be considered, not a mere neglect, but a wilful default.

The act(a) provides, in case the landlord finds any diffi culty in discovering his tenant, so as to make a demand of the fine, that a demand made on the lands from the principal occupier, together with a notice of such demand inserted for the space of two months in the London and Dublin gazettes shall be considered a demand within the act. Now, suppose a tenant abroad, in his majesty's service, or in the East Indies, and that the landlord does not know where he

(a) Sect. 2.

is, (for if he does know, it would be very difficult to say that he must not make the demand personally) and proceeds under this clause: is reasonable time after this demand, of which the tenant may remain utterly ignorant, to be computed in the same way, if the tenant remained utterly igno rant of it, as if the tenant had actually heard of it immediately from the occupier to whom it was given, or had seen it in the gazettes, and had set his landlord at defiance? Is the fine in such a case to be paid within the same time after demand, as it ought to be if the tenant were actually on the spot? or is he in such a case to be precluded from the benefit of renewal after a fixed period of time, although the moment he knows what has happened he is ready to pay the fine? On the other hand, though the tenant were in the East Indies, yet if it appeared that he knew of the demand, and yet took no step to get the money, and procure the renewal, his absence would not excuse him from the consequences of wilful default. There may be many other cir cumstances affecting what shall be deemed reasonable time. The property may be in litigation, and the notice given to a trustee who cannot act without the direction of the court, and perhaps cannot raise the money but under the authority of the court. In such a case, six months might not be reasonable time. Therefore all these cases must be considered upon the good or ill conduct of the tenant, in paying or not paying the fine, to convert that which was originally mere neglect into wilful default: and it would be mischievous to both parties to give indulgence beyond what is necessary, or to withhold indulgence where necessary by adopting any fixed period of time. The best thing for tenants having estates of this kind, is, to renew as the lives drop, unless they intend to defraud their landlords: and where these interests are in settlement, I think it particularly important to compel renewal from time to time; for the tenant for life never will renew as long as he can avoid it,

a

1804.

. · SAUNDERS.

because if the compulsion does not happen in his time, he JACKSON puts all the rents and profits in his own pocket. The same observation will apply to estates in the hands of creditors: it is better both for subsequent creditors and for those in remainder under settlement to compel regular renewals by the persons in possession.

On the first hearing the decree was "that plaintiff's bill "should stand dismissed with costs, save as to so much "thereof as relates to the construction of the covenant for "perpetual renewal contained in the original lease of 12th "Nov. 1724, in the pleadings mentioned: and as to so "much of plaintiff's bill as relates thereto, let the same "stand dismissed without costs."

Reg. Lib. xlviii. 447.

On the re-hearing, the former decree was affirmed, but without costs.