Chipman v. Emeric , 3 Cal. 273 ( 1853 )

Heydenfeldt, Justice,

delivered the opinion of the court. Murray, Chief Justice, concurred.

The appellants say that the estate of the defendant (a term for years) is forfeited, for two reasons: first, for the non-payment of rent; 2d, for the commission of waste.

At common law, there was no forfeiture upon either of these grounds. It was only by the Statute of Gloucester, 6 Ed. 1, that the remedy of forfeiture was given for waste, and it was then expressly confined to the place wherein the waste was committed. 2 Black. 283. Our statute confines the remedy to the recovery of treble damages. Laws, 566, 52, 59.

In reference to the first point, I can come to no other conclusion, than that, by the 13th section of the act concerning forcible entries and unlawful detainers, it was the intention of the legislature to make the non-payment of rent work a forfeiture of the estate of the tenant. In order to effect this, however, it must be held necessary to pursue tjhe same strictness as is required at common law to work a forfeiture, where there are stipulations in the contract of lease to that effect. The rent must be demanded on the day it becomes due, and at a late hour of the day.

See the case of Jackson v. Harrison, 17 J. R. 66, and the cases there cited. Adams on Ejectment, 160. Gaskill v. Trainer* decided at the present term of this court.

The record in this case discloses no demand whatever of the rent, and it follows there can be no forfeiture.

Judgment affirmed.