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Decisions of the Superior Courts of New South Wales, 1788-1899

Doe dem Manning v Hipkiss (1835) NSW Sel Cas (Dowling) 692; [1835] NSWSupC 26

tenancy - ejectment - equity - relief against forfeiture

Supreme Court of New South Wales

Forbes C.J., in banco, 28 March 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463[ 1]




28th March]


[A forfeiture under statute 4 G. 2. C. 28. is incurred by there being half a years rent in arrear & no sufficient countervailing distress on the premises at the time it was due the subsequent demanding & bringing an action for a years rent including the prior half years arrear, is no waiver; and it is not necessary to prove the service of the declaration after the deft has entered into the consent rule, & has appeared & pleaded if the time when be immaterial.]


In Banco

Doe on the demise of J.E. Manning Esq v Richard Hipkiss


Ejectment for a garden and paddock at Ultimo, near Sydney.  The demise was laid on the 1stJuly 1834.  Plea not Guilty.  At the trial before Dowling J. during the present term, it appeared in evidence that by a memorandum if agreement entered into between the parties, the lesser of the Plaintiff under let the premises is in question, part of the Ultimo estate (of which he was himself tenant to D. Harris) to the Deft so long as the Plf himself should hold of the superior landlord, at the rent of 40£ per annum payable quarterly, the rent to commence on the 24thJune 1833.  The agreement contained a Covenant for "usual terms for enforcing payment of the rent, and right of re-entry in case of non-payment".  The first half year's rent was due on the 24th December 1833 at which time it was proved that there was no sufficient distress found on the premises to satisfy the rent then due.  On the 24th June 1834 another half years rent became due, and on the [p.58] 12th of August following the lessor of the plf demanded 40£ for a whole years rent, for which there is now an action depending.  The present action was commenced on the 15th September last, and the demise was laid on the 1st July preceding.  The lessor of the Pf went for a forfeiture by force of the stat. 4. G. 2. C. 28. s. 2. the first half year rent being in arrear, and no sufficient distress being found on the premises at the end of that term, countervailing the arrears.  There was no evidence produced of the service of the declaration in Ejectment.  On the part of the Deft it was contended, first, that the subsequent demand of a year's rent was a waiver of the forfeiture; & second, that proof of the service of the declaration in ejectment was necessary, because the statute had substituted the service of the declaration, in lieu of re-entry and demand, at common law, before a forfeiture could be worked.  At common law if after demand of rent [p.59] and before entry, the tenant tendered the rent, no action would lie & so under the statute if after rent became due, & before service of the declaration the tenant tendered the rent, no action would lie; because the necessity of proving the service of the declaration the burden of which is of lay with the Plf.  The learned Judge over-ruled both points, but gave the deft leave to move to enter a nonsuit.

Foster moved according, & Wentworth was heard contra.

Cur. Adv. vult[2 ]


Forbes CJ. now delivered Judgment.  We are of opinion that the verdict for the Plf must stand.  This is a proceeding in Ejectment for non payment of rent under the Statute 4 G. 2. c.28.  That statute substitutes the service of a declaration for demand of rent, and supersedes the necessity of shewing that at the time of rent being demandable (as we read the statute) there was not sufficient distress to satisfy the rent to be found on the demised premises.  It is necessary to refer to the antecedent state of the common [p.60] law.  By the common law before ejectment could be brought for non payment of rent, it was necessary to be very particular in the demandof the rent upon the premises, on the day the rent became due, before Sunset and to continue ready to receive the rent after Sunset till the day expired, and the exact same amount be demanded.  Failing any of these requisites, the landlord could not bring ejectment, and even supposing all these requisites to have been complied with, a Court of Equity would relive the party if there were sufficient distress on the premises to satisfy the rent due.  To remedy the whole subject, the act of Parliament in question was passed.  By that act the service of the declaration in ejectment is made equivalent to demand and re-entry, & if there be rent in arrear, & no sufficient distress found on the premises countervailing the amount, then the Plf shall be entitled to recover.  The words of the act are that "the service of the declaration in Ejectment shall stand in the place of the demand and re-entry". [p.61]  In Doe d. Lawrence v Shawcross(3 B & C. 754) Bigley J. explains these words as being "in place of the legal demand made on the day on which it ought to have been made".  The demand should be made on a specific day.  The declaration being substituted for demand being made is equivalent to a demand on the day.  That day has reference to the fact of whether there is or is not a sufficient distress, and not to the day of the service of the declaration, but to the day on which the demand ought to be made.  Now apply this reading of this statute to the facts before the court, how stands the case?  By agreement the Plf let the premises to the Deft at a yearly but payable quarterly, with the usual clause of re-entry for non-payment.  The first half year's rent became due on 24th Decr 1833, - it was not paid, and consequently the tenant had incurred the forfeiture, & the landlord had his remedy.  The forfeiture had become completed.  There was but one day for payment and the rent was left in the hands of [p.62] the landlord.  The action was commenced on the 15th September 1834.  The demise was laid on the 1st July preceding.  It was clearly competent to the Plf to lay his demise at any time after rent due, and serve his declaration at any time after demise laid.  At the trial the Plf proved that on the 24th December there was no sufficient distress on the demised premises.  Consequently, prima facie the Plf was entitled to recover, unless the Deft can take the case out of the rule.  On the part of the Def, it was contended, first, that the subsequent demand of the whole year's rent, including the half year up to the 24thDecember, is a waiver of the forfeiture.  Certainly the decided cases have not gone so far.  If the Plf had resorted to a distress for the whole year's rent, that would not have amounted to a forfeiture but certainly a subsequent demand made & non payment clearly could not.  The non-compliance with the demand was a refusal & the party demanding was then in status quo.  Secondly it was contended that the service of the declaration being, by the statute, in lieu of re-entry [p.63] as well as demand, and as at the common law, if after demand and before entry, tender of the rent not be made, no action will lie, so if after rent becomes due & before service of declaration, there be sufficient distress on the premises, no action will lie.  But this argument is imported from a Court of Equity, for the fact of there being anything to distrain upon or not subsequently would form no part of the case at common law.  In Equity if there be a sufficient distress, that will prevent you from proceeding at law.  That circumstance is entirely equitable, & therefore it is necessary to recur to the words of the statute, which are, that "if it shall be proved that half a year's rent is due before the declaration served, & that no sufficient distress was to be found on the premises, countervailing the arrears then due", which means not at the time the declaration was served, but when the rent was due; because the tenant having incurred the forfeiture by not having sufficient [p.64] distress on the premises at that time, the forfeiture could only be got rid of, by tendering the amount the whole of the argument of Holroyd J. in Doe vShawcross amounts to this, that the declaration was made to stand in lieu of demand and re-entry, & that if at the time of declaration served the tenant was ready to pay the rent, by paying or tendering the rent, that will be equivalent in equity to a recovery by distress.  The service of the declaration, having relation back to the day the rent was demanded, we must look to the distress then on the premises, and not to the fact of his subsequently having if there - for having it at any time afterwards will not avail him.  He could have it on the very day it was due, or the forfeiture will be incurred.  How is the landlord to know whether the tenant has a sufficient distress after the day the rent became due or not?  The plain words of the statute are, that of their be half a year's rent due, & there be no sufficient distress on the demised premises, when the rent is due, then the forfeiture is [p.65] incurred.  As the service if the declaration is in lieu of a demand of the rent, it may be conceded that if the rent then due were tendered, it would be an answer to the action.  But here there was no tender or offer to tender the rent at the time it was due.  The fact of there being distrainable property on the premises afterwards (if that were clearly made out) will rid or [?] the forfeiture.  There the forfeiture was incurred at the end of the first half year, there being no distress found on the premises to countervail the rent, & therefore the action was property brought.  As with the argument that there was no proof of the service of the declaration, it is too late now for the deft, after he has appeared & pleaded & entered into the consent rule, to contend that that was necessary.  What brought him here?  The service of the declaration.  He must have been served with the process, or he could not have appeared & pleaded. [p.66]  Surely then after a party has entered into the consent rule, & been allowed to defend the action, it is too late to say that he has not been served with the declaration.  It may perhaps in some cases be important to ascertain when the declaration was served, but that evidence must be adduced by the party wishing to avail himself of the fact.  This case is distinguishable from Smelt v Fucheau (15 East 286) for that case turned upon the words of the covenant, & not upon the statute, & it became important to shew the precise date at which the declaration was served.  Here it was wholly immaterial.

We are therefore all of opinion that the plf must prevail in this action.

Rule Discharged.



[1 ] For previous litigation, see Sydney Herald, 12 March 1835; Australian, 20 March 1835.  Manning obtained damages of £40 for overdue rent of premises on the Ultimo Estate.

For a newspaper account of the judgment, see Australian, 31 March 1835 (followed by a critical comment on the decision).

[ 2] Curia advisari vult: the court wishes to be advised, or wishes to consider its decision.  This means that the judgment was not delivered immediately.

Published by the Division of Law, Macquarie University