[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 229 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 231 The first paper presented by Geisler and Weigand did not profess to deny any of the facts upon which the summons was issued.
It did not therefore raise any issue to try which a jury could be summoned; and the magistrate was right in his decision to that effect. (2 R.S., 513, § 28 et seq.) As a plea of a former trial and determination of the same matter, supposing that such a defence *Page 232 could be interposed, the paper was defective. It did not show that any facts were controverted on the former proceeding, or what the issue there tried or determined was.
It did not even show that the landlord's affidavit stated the same facts with the one presented on the last occasion. All that is stated is that it related to the same premises and the same rent.
For aught that appears it may have omitted to allege that a demand of the rent had been made; and the landlord may have been defeated for want of such an averment, or the landlord may have stated a demand and failed to prove it; and the demand upon which the second proceeding was instituted may have been made after the first proceeding was ended. That paper therefore contained nothing to authorize the magistrate to arrest the proceeding.
The remaining question is whether a demand of the rent of one of two lessees was sufficient to authorize the proceeding. Geisler swore that no demand of the rent had ever been made ofhim, and the question is whether this raised a material issue which made it the duty of the magistrate to summon a jury, Weigand having made no affidavit, and Geisler not denying but that a demand had been made of Weigand.
The statute authorizes the proceeding where a tenant holds over without permission after a default in the payment of rent, and where "a demand of such rent shall have been made." (§ 28, sub. 2.) We are to intend that there was a joint demise to both, for Acosta's affidavit is that they were both indebted for the rent, and this is not denied by the affidavit of Geisler. He swears that both had given the collateral security, which confirms the idea that the rent was due upon a demise to the two.
Each of the lessees was therefore a debtor for the whole amount of the rent, and we are of opinion that a demand of one of them was sufficient to authorize the issuing of the summons. In Crowder v. Shee (1 Camp., 437), it was held that where several were liable to an attorney for business done, but the statute required a bill of costs to be delivered before suit *Page 233 brought, a delivery to one was sufficient as to all.
A demand of payment of a promissory note of one of several makers who are partners is sufficient to charge the endorser. (Story on Prom.Notes, § 239.) Although there is no proof that the defendants were partners, they as joint lessees of the store had each an immediate concern in protecting their possession by the payment of the rent. Where several are jointly bound to do an act upon notice to them, notice to one is sufficient. (Com.
Dig., tit.Condition, L, 9.) There was no error of which the present plaintiffs in error can take advantage in the reversal of the order by the court below, as to Arnold and Beman, nor in the magistrate refusing to summon a jury as to them. Geisler and Weigand did not deny that they were in possession of the premises, but impliedly admitted it. The judgment of the supreme court should be affirmed.
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