McGlynn v. Moore ( 1864 )

By the Court, Rhodes, J., on petition for rehearing.

The appellants insist that a sufficient demand of the rent was made at the dwelling house; and they made the same point in their brief, but it was overlooked by us, probably in consequence of their holding that the demand at the warehouse was sufficient. The Court below found “ That the demand was made at each of the doors, on the north, west and east sides of the warehouse, but that no demand was made at the said dwelling house, or in front, or at the front door thereof.” Although the person, while making the demand at the office door, stood near the dwelling house, we doubt if he intended to make a demand at the front door of the dwelling house, and we cannot say that the Court committed an error in finding the fact to be, that no demand was made at that place.

We are satisfied that we have correctly stated the law in respect to the place where the demand was required, at common law, to be made. The remarks of Sergeant Williams, in the notes to Duppa v. Mayo, 1 Saund. 287, may have been founded on mere dicta, as stated by the appellants, but that learned writer’s notes have for many years been regarded as high authority, and the doctrine that the demand must be made at the front door of the dwelling house, if there is a dwelling house on the leased premises, has been generally recognized by the Courts, except when the rule has been changed by statute.

We are asked to grant a rehearing, that the question may be argued, whether the common law demand was required, when the landlord proceeded under section thirteen of the Forcible Entry Act. If the question was now for the first time before the Supreme Court, we should have great hesitation in holding, that in such a case, the demand as required at common law was necessary to be made; but, in Chipman v. Emeric, 3 Cal. 273, and Gaskill v. Trainer, 3 Cal. 334, it was held, that in order to work a forfeiture for the non-payment of rent, the landlord must make the demand with all the strictness required at common law. Those decisions have been too long recognized as the correct construction of section thirteen of the Forcible Entry Act, to be now changed by the Courts; and the rule has, in fact, been changed by the Legislature since the commencement of this action. (See Statutes 1862, page 420.)

Rehearing denied.