1804.

JACKSON

V.

SAUNDERS.

Now really, if the act of parliament were out of the case, I ought to hold that there was a neglect on the part of Jackson, commencing in March 1799; and the transactions which have happened subsequent to that time could properly be argued upon by Jackson in a court of equity only thus: "True, I was called upon in March 1799, to pay "this fine; true, I have not paid it, nor taken any steps "to pay it; but Mr. Saunders has been from time to time indulgent to me on the subject, and it was this indulgence that led me to omit making a formal tender."

66

But

let us suppose the act had not passed and attend a little to the subsequent circumstances. In the course of the year 1800, there is an express promise on the part of Jackson, to pay the money, and a reference to his own agent, Mr. Peter Jackson, as if the money were actually in his hands: Saunders' agent thereupon calls upon Jackson's agent for the money, who answers that he has not the money, and that Jackson has misrepresented the facts. A correspondence takes place between Jackson and his agent; and Jackson directs that the very money which the agent wished to apply to the renewal of the lease, should be applied for the benefit of his daughter. I should think, if this act had not been made, that these circumstances of misconduct on the part of Mr. Jackson, taking them in the most favourable light, would incline a court of equity not to assist him against the forfeiture of his right of renewal, if the case had rested on these circumstances. Then consider these circumstances in reference to the act, and the subsequent transactions. On the 9th of July, 1800, a letter is written by Mr. R. Saunders to Jackson, the purport of which was, that having made repeated application, and Mr. Jackson having done nothing but amuse and deceive Mr. Saunders, he would be under the necessity of taking proceedings under the act, to exclude Jackson finally. Jackson in his answer to this, on the 17th of July, says, that he would shortly be writing

to his solicitor, Mr. Peter Jackson, and would give directions to him to have the fine paid. Mr. R. Saunders waits on Mr. P. Jackson, in consequence of this letter,' but no fine is forth-coming. It is said that I am not to take notice of these previous dealings between landlord and tenant. Nothing could be more mischievous to tenants than to hold this; for the result would be, that the first step every landlord would be compelled to take, must be to give notice. If all his prior indulgence is to be turned against him, it would be absurd to grant any; and it would be the duty of every agent employed to manage property of this kind, to serve the formal demand in the first instance; which might often be very injurious to the tenants. I think therefore that I must take all these circumstances into consideration in forming a judgment whether the default of Jackson after demand ought to be deemed wilful default within the meaning of the statute.

In the month of August, 1800, Mr. R. Saunders writes to Mr. Jackson, complaining of his conduct, and stating that he could not, without doing material injustice to his client, forbear to proceed under the statute; and really enough had passed to provoke him highly, considering all the indulgence that had been given to Mr. Jackson, and that an actual, though not a formal, demand had been made on him near eighteen months before. Then in October, 1800, a demand is made, which I take to be a sufficient demand under the statute; it being a demand intended to exclude Jackson from renewal, in case of non-compliance, and the act not having prescribed any particular form for such demand. The notice was for renewal only of two lives, Saunders being then ignorant, but Jackson knowing, that the third life had then dropt. It is said that there was great liberality in Jackson's informing Saunders that the third life had dropt; but as to that, it was economical in Jackson to renew for

1804.

JACKSON

V.

SAUNDERS.

The statute has not prescribed any form for the demand. It is good, though

not in writing,

1804.

JACKSON

V.

SAUNDERS.

the three lives by one lease, rather than incur the expense of separate renewals. And when an argument is founded on the smallness of the sum to be raised, I think it turns the other way; for the smaller the sum, the less difficulty would there be in raising it: and that applies particularly when I hear an analogy attempted to be drawn from the case of rents, which are supposed to be a full value for the lands, in those cases at least which apply to the immediate occupying tenant; and an analogy from mortgages, which generally speaking, bear a very considerable proportion, not merely to the rent, but to the value of the fee-simple itself. Such arguments appear to me to be used without attending to the rights of the landlord and tenant under these leases; which are, that each should be secured in what he contracted for; that the landlord should regularly receive that which he had stipulated to receive; and that the tenure should be kept up. For, I know no reason why these leases ever came into practice in this country, instead of fee farm grants, but that the situation of the country, the habits of the people, and the manner in which rents were paid, made it more beneficial to the landlord. I have heard that landlords are not willing to convert this tenure into fee farm grants, because they have such difficulty in recovering their rents, when compelled to enforce payment by the ordinary means for the recovery of such rents. If proper means were found for the recovery of rents reserved in fee farm grants, they would be more beneficial to the country than these leases, the nature of which leads to continual litiga, tion. When it is considered that these leases are often granted by persons who have themselves renewable interests; necessary that and that the means which such persons have to pay their persons holding rent and fines arise from the rent and fines payable by their under it should

Considering

the nature of this tenure, it is

be obliged to tenants, who may themselyes have underlet to others, and use diligence in paying renewal such under-letting repeated four or five times; if the per, son who has the reservation on the last under letting (and

fines.

who is to renew with his immediate landlord, and he with another, and so on) is to encounter a considerable delay after a demand of this description, I do not know what security the intervening persons have for their property; for if the person last holding withholds payment from his immediate landlord, all the intermediate tenures may be put in great hazard. I therefore think it desirable that somewhat of strict rule should be held on persons who have estates of this description, in order to make them diligent: and this I take to be the true meaning of the act; that the landlord should not be at liberty to take advantage of mere neglect, but that he might avail himself of wilful default; that is, nonpayment of the money within a reasonable time after demand.

1804.

JACKSON

V.

.SAUNDERS.

able time must

always be considered according to the cir.

What is reasonable time must in all cases be considered What is reason. according to the circumstances. In all mercantile transactions reasonable time is extremely short; and I believe it will be found very wisely so, for many reasons; but among cumstances. others, because in mercantile transactions, every thing dcpends on payment at the day. In mercantile transactions, the holder of a bill must tender it on the day it becomes due; if not paid, it must be protested instantly, and notice given forthwith, or as soon as circumstances will permit: if a draft is given on a banker, it is to be demanded on the day it is given, and if it be not, it is at the risque of the party holding the draft, and all this depends upon what is due diligence in the particular case, which is to be judged of by certain rules and by the practice and habits of the people, and in some cases must be left to the fair discretion of jurors.

In a case similar to one now before me, where the tenure happens to be coinplicated in the manner I have mentioned, the regularity of payment of all the different gradations must depend on the regular payment of the holder under the last

.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 considering what is to be the effect of a demand under the statute, and what is to be a reasonable time afterwards for compli ance 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 circumas circumstan- stances will reasonably permit. For instance; if a demand ces will reason be made on a tenant when resident in a foreign country or ably permit. 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

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 previous 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. Ought 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 nothing in consequence. Then Michaelmas term elapses,