Seem v. McLees

Catón, C. J. The defendant was a tenant from month to month, and was entitled to one month’s notice to quit, before he was liable to be sued in an action of forcible detainer. If the notice offered in evidence was designed to terminate the lease at, the end of the succeeding month, then the action was brought too soon, for that month had not expired. But waiving this, and assuming that the notice offered was designed as the notice required by the statute, as preparatory, to bringing the action, and it was insufficient. It did not appear that the notice, or a copy of it, was left with the defendant, but it was read to him. That statute says that the tenant holding over, “ after demand made in writing for possession thereof,” shall be adjudged guilty of forcible detainer, etc. A demand made by reading a paper to the tenant, is not a demand made in writing. It is but an oral demand. The statute intended that the tenant should have a written demand, to which he could refer, and which he could examine, that he need not depend upon his memory to know what the demand was. The plaintiff insists, that by appearing before the justice, and contesting the case upon its merits, he waived any defect in the demand, and that it was too late to take the objection on appeal. The objection was not of a dilatory character. Until such demand was made, the tenant was not guilty of forcible detainer under the statute. The proof of the demand was an essential part of the plaintiff’s case, as much so, as proof of the tenancy. s If no such demand was made, the defendant was not guilty. Nor did the affidavit, read on the motion for a new trial, showing that a copy of the demand had been left with the defendant, show any excuse why that proof had not been introduced on the trial. There is no pretense that it was newly discovered evidence. The inference is, that the proof was well known to the plaintiff at the time of the trial, and that it was his own fault that it was not adduced. The judgment must be affirmed. Judgment affirmed.