REDUNDANCY. Matter introduced in an answer or pleading which is foreign to the hill or articles.
2. The respondent is not to insert in his answer any matter foreign to the articles he is called upon to answer, although such mat ter may be admissible in a plea; but he may, in his answer, plead matter by way of ex planation pertinent to the articles, even if such matter shall be solely in his own know ledge, and to such extent incapable of proof; or he may state rnatter which can be sub stantiated by witnesses ; but in this latter instance, if such matter be introduced into the answer, and not afterwards put in the plea, or proved, the court will give no weight or credence to such part of the answer. Per Lushington, 3 Curt. Heel. 543.
3. A material distinction is to be observed between redundancy in the allegation and redundancy in the proof. In the former case, a variance between the allegation and the proof will be fatal, if the redundant allega tions are descriptive of that which is essen tial. But in the latter case, redundancy can not vitiate because more is proved than is alleged, unless the matter superfluously proved goes to contradict some essential part of the allegation. 1 Greenleaf, Ev. 67; 1 Starkie, Ev. 401.
The act of resuming the Possession of lands or tenements in pursuance of a right which the party exercising it re served to himself when he quit his former possession.
2. Conveyances in fee reserving a ground rent, and leases for a term of years, usually contain a clause authorizing the proprietor to re-enter in case of the non-payment of rent, or of the breach of some covenant in the lease, which forfeits the estate. Without erch reservation he would have no right to - re-enter for the mere breach of a covenant, although he may do so upon the breach of a condition which, by its terms, is to defeat the estate granted. 3 Wile. 127 ; 2 Bingh. 13 ; 1 Mann. & R. 694 ; Taylor, Landl. 85 T. 290.
When a landlord is about to enforce his right to re-enter for the non-payment of rent, he must make a specific demand of payment, and be refused, before the forfeiture is com • plete, unless such demand has been dis pensed with by an express agreement of the parties. 18 Johns. N. Y. 4515 8 Watts, Penn 51; 6 Sorg. & R. Penn. 15] ; 13 Wend. N. Y. 524 ; 6 Halst. N. J. 270 ; 7 Term, 117; 5 Coke, 41. In the latter case, a mere failure to pay, without any demand, constitutes a sufficient breach, upon which an entry may at any time subsequently be made. 2 N. Y. 147 ; 2 N. H. 164 ; 2 Dougl. 477 ; 2 Barnew. & C. 490.
3. The requisites of a demand upon which to predicate a forfeiture for the non-payment of rent, at common law, are very strict. It
must be for the payment of the precise sum due upon the day when, by the terms of the lease, it becomes payable; if any days of grace are allowed for payment, then upon the last day of grace, Coke, Litt. 203 ; 7 Terrn, 117 ; Comyns, Dig. Rent (D7); 2 N . Y. 147 ; at a convenient time before sunset, while there is light enough to see to count the money, 17
But the statutes of most of the states, fol lowing the English statute of 4 Geo. II. c. 28, now dispense with the formalities of a com mon-law demand, by providing that an action of ejectment may he brought as a substitute for such a demand in all cases where no suf ficient distress can be found upon the pre mises. And this latter restriction disappears entirely from the statutes of such of the states as have abolished distress for rent.
4. The clause of re-entry for non-payment of rent operates only as a security for rent; for at any time before judgment is entered in the action to recover possession the tenant may either tender to the landlord, or bring into the court where the action is pending, all the rent in arrear at the time of such payment, and all costs and charges incurred by the landlord, and in such case all further proceedings will cease. And in some states, even after the landlord has recovered pos session the tenant may in certain cases be reinstated upon the terms of the original lease, by paying up all arrearages and costs. Taylor, Landl. & T. I 302.
tut the courts will not relieve a.gainst a forfeiture which has been wilfully incurred by a tenant who assigns his lease, or neglects to repair or to insure, contrary to his express agreement, or if he exercises a forbidden trade, or 'cultivates the land in a manner prohibited by the lease ; for in all such cases the landlord, if he has reserved a right to re-enter, may at once resume his former pos session and avoid the lease entirely. 2 Price, Exeh. 206, n. ; 2 Mer. Ch. 459 ; 9 Carr. & P 706 ; 1 Da11. Penn. 210 ; 9 Mod. 112 ; 3 Ves. & B. Ch. Ir. 29 ; 12 Ves. Ch. 291.