The opinion of the court was delivered by
Collamer, J.— This lease gives the right of entry for the nonpayment of rent which has been due 28 days. What is said in the lease about the same having been legally demanded is unimportant, as the same would have been necessary by the common *491law, under which the lease was executed, without these words. They were expletive when inserted and so remain. By the common law, where there was a right of entry for the failure to pay rent, it was viewed and enforced by the action of ejectment as a forfeiture of the tenant’s estate, and therefore the utmost strictness was required on the part of the landlord in performing all the requisites on his part in asserting his legal rights, like the performance of conditions precedent. The demand of the rent must have been made on the true day when due, on the premises, at the most public place thereon, by the landlord or his attorney appointed in writing. And when the forfeiture was legally taken, the right of the tenant was viewed as forever gone at law, and the ejectment was sustained accordingly. To relieve the landlord from this strictness of proceeding on the one side, and the tenant from its effects on the other, the statute of 4th Geo. II. was passed, by which the action of ejectment was given for the non-payment of rent without demand on the part of the landlord, and it granted the tenant the right, by paying up the rent and costs in six months after judgment, to retain his estate. By our statute of 1818, (Stat. 109,) it is provided that the action of ejectment for the nonpayment of rent may be sustained without proof of demand, and the tenant may have all the proceedings arrested by paying up before final judgment. These statutes create no new duties or obligations, and do not impair the obligation of any contract. The statute but gives a new and more simple remedy for an existing right, and in so doing secures mutual and reciprocal advantages to both parties. It is under this statute this action is sustained, without a formal demand on the one side, and with the right to pay up and retain the estate on the other.
It is next insisted, that inasmuch as the defendant paid up the rent of 1833, which was received by one of the selectmen, this action could not be sustained on account of previous rent being unpaid, even though that selectman did not know of the existence of said arrears. It is true the receiving of the rent of 1833 raised a presumption that the previous rents were paid, but this was subject to being rebutted, which was done to the satisfaction of the jury. The receiving of rent eo nomine, accruing after a forfeiture, is a waiver of the forfeiture, as thereby the landlord elects to treat the holder as tenant, and not as a tort feasor. But. in such case it must be substantially shown that the forfeiture was known at the time.—Roe vs. Harrison, 5 T. R. 425. In this case the rent for 1833 was received by one of the selectmen. It is very doubtful *492whether the selectmen, especially one of them, being a board with limited powers, could by express contract waive the plaintiff’s right, only receiving therefor payment in part. In this case it would be doing the utmost violence to the intent of that selectman io give such effect to his receipt. There was no proof that he had any knowledge of there being any rent in arrear. This is not an action for a forfeiture. That should have been taken by the strict rules of the common law. This is an action given by statute. The non-payment of rent is a breach of a condition subsequent, and does not in itself divest the estate. That depends on the forfeiture being insisted on by the landlord and taken with exact precision as before stated. The rent must have been demanded on the true day, and it was only after such demand that the tenant became a tort feasor. To waive such forfeiture, rent must have been received from the tenant, as rent, which accrued after such demand. By statute this action is given without demand. The defendant only becomes a tort feasor after suit commenced. To waive this, the landlord must receive rent accruing after suit.
Judgment affirmed.