Brewer v. Chase

Hartwell, J.: The statute provides for bills of exceptions in "“summary” form. [Civ. Code, §886.] When counsel agree upon what evidence they deem material, time may be saved, but otherwise, all the evidence, and not inferences, on material points, should appear. In considering the exceptions, all the law bearing upon the case is to be reviewed, and not solely the reasons urged by counsel, or assigned by the Court in giving the judgment. [Munro vs. Potter, 34 Pick., 358.] First, as to the jurisdiction. Section 1118 Civil Code, under which this action was brought, reads as follows: “In actions to recover at law any specific property, real or personal, or any specific share or interest, or right to property, real or personal, in kind, as in cases of replevin or ejectment, the plaintiff in person, or by attorney, shall file with the Clerk of the Court a petition for process, which may be in the following form:” (form of complaint for wrongfully taking and converting.) This section is under the title of “Actions upon unliquidated demands,” aud is nearly word for word like the statute of 1847. The statute of 1853, “Providing summary proceeding to recover possession of land in certain cases,” amended by Act approved June 3, 1865, so as to include forfeitures, reads as follows: “ Section 1. Whenever any lessee or tenant of any lands or tenements, or any person holding under such lease or tenant, shall hold possession of such lands or tenements without right, after the determination of such tenancy either byefflux of time, or by reason of any forfeiture, under the conditions or covenants in any such lease ; or if a tenant by parole, by a notice to quit of at least ten days, the person — 136 — entitled to such premises may be restored to the possession thereof in the manner hereinafter provided.” Then follow provisions for a hearing before a Police or District Justice, for the issuing of a warrant of removal, annuling the relation of landlord and tenant, and for staying proceedings in actions for rent, on payment of rent and costs. • The amended Act of 1865 appears to cover this exact ease. The citation from Taylor, (§713, Land. & T.,) has reference to statutes which contain no provision for forfeitures. The act includes not only void, but voidable leases, for it provides a mode for canceling the lease and annulling the relation of landlord and tenant. Nor is a resort to these summary proceedings inconsistent with an action for damages, although an action brought under either of these statutes, during the term of the lease, would affirm the tenancy to the date of the alleged act of forfeiture. [Sargent vs. Smith, 12 Gray, 426; Stuyvesant vs. Davis, 9 Paige, 427.] It is a general rule, where the common law prevails, that a statute remedy is- merely cumulative, unless the common law remedy is expressly, or impliedly repealed. [Coffin vs. Field, 7 Cush., 358; Brown vs. Castles, 11 Ib., 3 and 8; Burden vs. Crocker, 10 Pick., 383; Colden vs. Eldred, 15 Mass., 22; Rex vs. Jackson, Cowp., 277; Yorke vs. Chapman, 10 Ad. and E., 209; Adams vs. Richardson, 43 N. H., 212; Wood vs. U. S., 16 Pet., 363; Shaftesbury vs. Russell, 1 B. and C., 66.] But if a statute confers a right, and an adequate means of protecting it, the statutory remedy is exclusive, and if the enforcing tribunal is specified, that, alone, can be resorted to. [Wiley vs. Yale, 1 Met., 557; Tower vs. City of Boston, 10 Cush., 235; Hazen vs. Essex Co., 12 Cush., 477; Flagg vs. City of Worcester, 13 Gray, 601.] The case of Comth. vs. Johnson, 8 Mass., 90, was thus: By a’statute of 1791, inferior courts had jurisdiction of'a certain grade of offences; a subsequent statute gave the Supreme Court jurisdiction “of every crime whatsoever that is against the public — 137 — good.” The Court there, referring to the English rule, that only by express negative words or necessary implication, would the higher Court lose jurisdiction, said, “words similar to these have, in this State, by a long-continued, unbroken series of precedents and practice, been uniformly construed to exclude the original jurisdiction of this Court. ’ ’ But in Comth. vs. Hudson, 11 Gray, 64, Shaw, C. J., said, “It is no answer to say that another tribunal has jurisdiction; for that is common. It is, in such case, concurrent jurisdiction, whether so called in the statute or not,” there being “no words indicating that it should be exclusive, nor repealing any specific statute.” In Williams vs. Potter, 2 Bar., 316, it was held that landlords’ remedies under a statute in force when the lease was executed, were not affected by the requirements of a subsequent statute, unless in respect of re-entry for non-payment of rent. In Rochester vs. Rehoboth, 9 Fos., 367, the Court said, “But we have never held that because a justice of the peace may entertain jurisdiction to the extent of $13.33, the Common Pleas are thereby ousted of jurisdiction of all matters below that ¿sum, but unless the statute confine the original jurisdiction to a magistrate, our practice has been to permit a party to bring his suit in the Common Pleas, if he so choose, but at the risk of having his costs limited to those recoverable before a justice of the peace. In Flanders vs. Atkinson, 18 N. H., the same Court declined original jurisdiction of matters cognizable in a lower Court. These decisions, however, generally rest on statute or constitutional limitations. This Court has jurisdiction “of all cases in law or equity, * * whether the same be brought before it by original writ, by appeal, or otherwise.” Civil Code, Section 829. The Police Justice has exclusive original jurisdiction, where the amount shall not exceed two hundred dollars. Civil Code, Section 893; amended by Act, 1868. That — 138 — amount is to be ascertained by tbe ad damnum laid in tbe complaint, and not by the actual amount of tbe debt or damages. [Hapgood vs. Doherty, 8 Gray, 373.] Tbe ad damnum in tbis case was one thousand dollars, although tbe evidence would entitle tbe plaintiff', if be recovered, to merely nominal damages. [Appleton vs. Fuller, 1 Gray, 186.] The costs would be regulated by tbe Court, if tbe defendant appeared to be unnecessarily subjected to more expensive proceedings. Perhaps tbe plaintiff’s claim for mesne profits might be affected by not resorting to summary proceedings for an earlier decision. In view of tbis protection against expense or delay, we are of tbe opinion that, by tbe authorities, tbis action would lie, and that evidence of actual damage is not requisite. Was notice to quit essential ? Our statutes are silent upon tbis point, except in requiring ten days’ notice to terminate a tenancy by parole. By referring to cases brought in tbis Court, tbe uniform practice appears to have been, to give a written notice before bringing tbe action. But bow long they should be, in what cases they may be dispensed with, or if required at all, has never been determined. Neither tbe English rule of a half-year’s notice in determining tenancies from year to year, and of shorter notice .for shorter terms, nor tbe statute regulations in tbe United States, have ever been formally adopted here. Undoubtedly, in tenancies determinable by tbe landlord’s act or will, we should require a notice, reasonably definite and seasonable, before tbe tenant would be compelled to deliver up tbe premises. If a tenant from year to year forfeit bis lease by subletting, it was held that no notice to quit is required before bringing tbe action. “Tbe landlord’s action' would be against a trespasser, as much so as if no relation bad ever existed between them.” [Willison vs. Watkins, 3 Pet., 48.] If a tenant at will, or sufferance, do acts inconsistent with bis tenure, tbe lessor may sue him as a disseisor, without — 139 — entry or notice, and may maintain an action of tort, as if he had originally entered by wrong. [Russell vs. Fabyan, 34 N. H., 223.] This lease, however, was voidable only at the lessor’s option, and if an actual entry be not made, some notice was due, that he intended to take advantage of the alleged breach of condition. The notice should be precise enough to admonish the lessee that forfeiture was claimed for condition broken. [Willard vs. Henry, 2 N. H., 122; Sperry vs. Sperry, 8 N. H., 481.] We regard the plaintiff’s objection to the admission of McGrew, and his refusal of rent on that score, as sufficient notice. Finally, was the lease forfeited ? The original term of two years expired September 30th, 1867. The lease provides that “it is to be at the option of the lessee, to continue to occupy, for a further term of three years, at the same rental.” There was no renewal of the lease, but the lessee continued in occupation. If the tenant hold over without any new agreement, he holds upon the same rent as under his lease. [Rigge vs. Bell, 5 Term, 471.] The right of option to take a new lease need not be exercised during the original term. [Moss vs. Barton, 1 Eng. Eq., 477, 1866.] And during subsequent occupation, the tenancy is from year to year. [Buckland vs. Papillion, 1 Eng. Ch. Appeal Cases, 67.] But an agreement for extension not providing for the rent or length of term, might be held void for uncertainty. [Duffield vs. Whitlock, 26 Wend., 56.] All the original covenants are not necessarily part of the lease for the additional term, unless so. stipulated. [Rutgers vs. Hunter, 6 Johns. Ch., 215.] This agreement provides only for the same rent. The tenant may always sub-let, unless otherwise agreed. A covenant against sub-letting is not one of the usual covenants, which — 140 — could be required for a valid lease. [Church vs. Brown, 15 Ves., 258.] Until a new lease is executed, the defendant holds the premises, subject only to the rent provided for by the agreement in the first lease. [Kelso vs. Kelly, 1 Daly, 419; 7 Abb. N. Y. Dig., 420.] The point, however, was not raised in the argument, and it is unnecessary to decide here whether the present occupation, until a new lease or formal extension, is subject to the condition against sub-letting. But we are of the opinion that the act of the defendant in allowing Dr. McGrew to occupy the building with himself, is not a breach of such condition. The original lease gave the free and unmolested use of the demised land, with the privilege of removing the buildings that the lessee might erect. This implies an unrestricted use of such buildings for all lawful purposes. It was long since settled, that 'a covenant not to sub-let a tenement was not broken by taking lodgers, although they have exclusive possession of a room for a year or more. [Doe dem. Pitt, vs. Lanning, 1 R. and M., 86.] A clause like this is always strictly construed; so that it may not extend beyond the express stipulation; and particularly so, in order to avoid a forfeiture. [Doe vs. Carter, 8 Term, 57.] Whether the defendant occupy exclusively the building which he erects, and has the right to remove, or not, can not affect the value of the lot itself. To restrict the defendant to such exclusive use. and occupation of his own buildings, would seem inconsistent with the terms of the lease, and we do not think it was so intended. Exceptions overruled.