29 Cal. 661 | Cal. | 1866
The first ground of the defendant’s demurrer is fully answered by the case of Caulfield v. Stevens, 28 Cal. 118. In that case we held that the general terms—“ actions of forcible entry and detainer ”—as employed in the Constitution of this State, included actions for the unlawful holding over by tenants, and that jurisdiction of those actions was committed by the Constitution to the County Courts.
The only remaining ground that requires attention, is that . the plaintiff does not allege a demand'of the rent, previous to the making of the demand for the surrender of the possession of the premises. The Act of 1863, concerning forcible entries and unlawful detainers, (Stats. 1863, p. 562) differs in some
The third section of the Act of 1863 declares it to be unlawful for the tenant to hold over the lands after any rent has become due and remains unpaid for the space of three days; and section four prescribes that if the landlord shall make'a demand in writing of the tenant after the rent has become due, that he deliver the possession of the premises, and the tenant shall. refuse or neglect for the space of three days to pay the rent or quit the possession, the tenant “ shall be deemed guilty of an unlawful detainer.” The intent of the statute, as gathered from sections three and four, in case of non-payment of rent, was to make the failure of the tenant to pay the rent within the space of three days after a demand of the possession of the leased premises, because of the rent being unpaid, operate as a forfeiture of the estate of the tenant. The declara- , tion of the statute, that in such case the tenant shall be deemed guilty of an unlawful detainer, necessarily implies a forfeiture of his estate in the leased premises. Neither of those sections require that a demand of the rent shall be made previous to the demand of the possession of the premises.
The Act of 1863, after having provided for a forfeiture, as we have seen, retained the clause we have mentioned as added
Judgment reversed and cause remanded, with directions to the Court below to overrule the demurrer.