
    The Fifty Associates vs. Malachi Howland & another.
    If a lease for years provides, that in case the rent is not paid when due, the lessor may enter “ without further notice or demand,” and devest the lessee of his estate, no previous demand of rent is necessary, in order to entitle the lessor to enter.
    A clause in a lease for years, that, upon the breach of any of the covenants therein, the lessor may enter and expel the lessee, and remove his effects by force, if necessary, is not in contravention of the Rev. Sts. c. 104, § 1, requiring entry into lands and tenements to be made in a peaceable manner; and, in expelling the lessee under this clause, the lessor cannot lawfully resort to such a degree of force and violence, as would tend to a breach of the peace, but is limited to such an amount only as would sustain a plea of molliter manus impomit.
    
    If a lessee underlets a part of the demised premises, and the sub-tenant is recognized as such, and rent demanded of him. by the lessor, the lessee and sub-tenant are not jointly liable to the lessor, for the mesne profits of the whole premises.
    Where a joint action of trespass for mesne profits was brought against a lessee for years and his sub-tenant, the former of whom alone was liable therefor, the plaintiff was allowed to amend his declaration, by striking out the name of the defendant who was not liable.
    This case, which was an action of trespass for mesne profits, was submitted to the court of common pleas, from whence it came to this court by appeal, upon the following agreed statement of facts : —
    On the 30th of April, 1840, the plaintiffs leased to Alfred Randall, one of the defendants, the premises described in the declaration, for five years, at a rent payable quarterly, on the first days of September, December, March, and June, in each year. The lease, which was by indenture, contained a provision, that the lessee should not underlet any part of the premises, without first obtaining the consent of the lessor. It contained also the following clause: “ Provided always, and these presents are upon this condition, that if the lessee, or his representatives or assigns, do or shall neglect or fail to perform and observe any or either covenant, which on his or their pari is to be performed, then and in either of said cases, the said lessors, or those having their estate in the said premises lawfully, may immediately, or at any time thereafter, and whilst such neglect or default continues, and without further notice or demand, enter into and upon the said premises, or any part thereof, -in the name of the whole, repossess the same as of their former estate, and expel the said lessee and those claiming under him, and remove their effects (forcibly if necessary) without being taken or deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent, or preceding breach of covenant.”
    Under this lease a quarter’s rent became due on the 1st of September, 1844, and that day being Sunday, the plaintiffs, on the next day, by their duly authorized agent, went upon the premises between ten and eleven o’clock in the forenoon, with the lease, and demanded payment of the rent, generally, and made a particular demand of every person on the premises, among whom was the defendant Howland’s wife, who occupied a shop and cellar in the same. The agent also informed all persons on the premises, that unless the rent was paid, the plaintiffs would enter for a breach of the condition above stated.
    On the 7th of September, the rent not having been paid, the plaintiffs, by their agent, went upon the premises with the lease, and declared that they entered and took possession for a breach of the condition thereof, in the non-payment of rent. The entry was made in the presence of Howland’s wife, and was afterwards stated to Howland at different times. All the occupants found upon the premises at the time of the entry, amongst whom was Howland’s wife, were ordered to depart.
    On the 11th of September, the plaintiffs, not being able to obtain legal service on Randall, who had removed from the city, instituted a proceeding under the Rev. Sts. c. 104, § 2, in the justices’ court for the county of Suffolk, against Howland, to obtain possession of the shop and cellar. This proceeding was carried from the justices’ court to the court of common pleas, from whence it came to this court by exceptions, and was decided against the plaintiffs, at the March term, 1.846, for reasons which are fully set forth in the report of the case in 11 Met. 99.
    The defendant Howland, from the 1st of March, 1843, to the 1st of May, 1845, occupied the shop and cellar as the tenant of Randall, under a lease duly executed by the parties, and had paid rent to Randall according to the terms of the lease.
    The plaintiffs were well aware, previous to the demand of rent and entry, that Howland kept and occupied the shop and cellar by his wife, acting therein as his agent, and never objected thereto until their entry ; but at that time they notified Howland, and have since repeatedly notified him, that they considered him a trespasser, and should hold him responsible for rent as such.
    The premises were occupied at the time of the entry, and continued to be so, by various persons claiming under Randall ; the shop and cellar by Howland’s wife; the chamber above by one Cambridge; a hall was let for public purposes ; and in the third story there was a small room, locked, on the door of which Randall had his name. The premises were not surrendered to the plaintiffs, until the 1st of May, 1845.
    The plaintiffs did not insist on a breach of the condition of the lease, by reason of any underletting on the part of Randall. This action was brought to recover the mesne profits of the leased premises, from the 7th of September, 1844, when the plaintiffs made their entry, until the 1st of May, 1845, when the premises were vacated, and possession thereof surrendered by the defendants to the plaintiffs.
    
      C. A. Welch, for the plaintiffs.
    1. The lease was properly determined. By the express agreement of the parties no demand was necessary before entry. Davis v. Elsam, Mood. & M. 189, 5 Man. & Gr. 734, n.; Bac. Ab. Condition, O, 2; Perryman v. Bowden, Hetley 59; Goodright v. Cator, 1 Doug. 478.
    2. The form of action is proper. Fifty Associates v. Howland, 11 Met. 99; Danforth v. Sargent, 14 Mass. 491; Dorrell v. Johnson, 17 Pick. 263; Curl v. Lowell, 19 Pick. 25.
    
      
      P. S. Wheelock, for the defendants.
    1. If a forcible entry is relied on, the general rule applies, that one disseized of land cannot maintain trespass, until after entry. Rev. Sts. c. 119, § 8; Putney v. Dresser, 2 Met. 583; Allen v. Thayer, 17 Mass. 299; Bigelow v. Jones, 10 Pick. 161; Mayo v. Fletcher, 14 Pick. 525; Dorrell v. Johnson, 17 Pick. 263; Blood v. Wood, 1 Met. 528. 2. This action cannot be maintained against both defendants jointly, 2 Greenl. Ev. § 277; Bissell v. Strong, 9 Pick. 562; Fuller v. Chamberlain, 11 Met. 503; Campbell v. Stetson, 2 Met. 504; 3. The condition in the lease is void, being in contravention of the express provision of the Rev. Sts. c. 104, § 1, prohibiting forcible entry. The condition is entire in its nature, and being void in part, is void in the whole. Taylor, L. & T. 136; Legate v. Sewell, 1 P. Wms. 87; Comyn, L. & T. 100; Wheeler v. Russell, 17 Mass. 258; Williams v. Woodman, 8 Pick. 78; Loomis v. Newhall, 15 Pick. 159; Fifty Associates v. Howland, 11 Met. 99; 2 Platt on Leases, 345; Kavanagh v. Gudge, 6 Scott, N. R. 508. 4. A demand was necessary before entry; especially as the words used in the lease are “ without further demand,” thus implying that one demand was necessary.
    
      Welch, in reply.
    The authorities show that the “ further demand ” means “ any demand”; and otherwise the words would have no meaning.
   Wilde, J.

The word is not so appropriate as the word “ any,” but we think it has the same meaning in this lease; and so it has been construed in a similar condition. 1 Bac. Ab. Condition, O, 2.

Another objection on which the defendants rely is, that the condition in the lease is void, as it allows the forcible expulsion of the lessee and his effects, in contravention of the Rev. Sts. c. 104, § 1. This objection, we think, cannot be maintained, for several reasons. In the first place, the statute provides, that no person shall make any entry into lands or tenements, except in cases where his entry is allowed by law; and in such cases, he shall not enter with force, but in a peaceable manner. Now there is nothing in the condition of the lease allowing an entry by force; the condition therefore allows nothing prohibited by the statute. But it is said, that the condition allows of the expulsion of the lessee and his effects by force, and that such an expulsion is illegal, if not in contravention of the statute. But by the principles of the common law, some degree of force is allowed in expelling an intruder into a man’s lands or tenements, who refuses to quit, although he has no right to the possession. The owner is not justified to use such a degree of force, as would tend to a breach of the peace, but he is allowed to use such force as would sustain a plea of justification of molliter mcmus imposuit; and to such lawful force the condition in the lease must be considered as having reference.

The next question to be considered is, whether this action can be maintained against the two defendants, it being a joint action of trespass for the mesne profits of the whole premises leased to Randall; and we are of opinion that it cannot. Howland occupied a part only of the premises leased, as subtenant of Randall, and he was recognized as such by the plaintiff, who demanded rent of him ; he and Randall therefore cannot be liable jointly for the mesne profits of the whole premises ; but there may be a question perhaps whether both the defendants may not be liable for the mesne profits of that part of the tenement leased by Randall to Howland. This question, however, has not been argued by counsel, and we have not considered it. If, therefore, the counsel wish to discuss this question, or to make any motion as to the form of the action, time will be allowed for the purpose before the final judgment.

After this opinion was delivered, the plaintiff had liberty to amend, by striking out the name of Malachi Howland firom the declaration; and judgment was entered by consent against Randall alone, Howland taking no costs.  