18 Me. 264 | Me. | 1841
The opinion of the Court was drawn up by
The indenture between the parties, by which the tenancy was created, having fixed a definite period for its termination, the defendant was not entitled to notice to quit, to impose upon him the legal obligation to give up the estate to the plaintiff, his landlord. Ellis v. Paige & al. 1 Pick. 43; Messenger v. Armstrong, 1 T. R. 54; Bright v. Darby, ib. 162. The notice given by the plaintiff, prior to the termination of the lease, might properly have the effect to remove any implication, that if the defendant held over, he did so by the acquiescence of the plaintiff. By the law directing proceedings in forcible entry and detainer, as it formerly stood, they could not be based upon a mere refusal to deliver possession of land, when demanded. There must have been some apparent violence in word or deed, or some circumstances tending to excite terror in the owner, and to prevent him from maintaining his right. Commonwealth v. Dudley, 10 Mass. R. 403.
The statute of 1824, c. 268, in relation to this process, has extended its provisions to an unlawful refusal of the tenant to quit, after he shall have had thirty days notice, requiring him to do so.
It gives no new rights to the tenant, but it extends the remedy of the landlord upon this process farther, than could have been made available under the former law. That such should be the construction, is strongly intimated in Davis & al. v. Thompson, 13 Maine R. 209. This is no restriction of the rights of the landlord. Where the tenancy is limited to a definite period, he may enter at once upon its termination ; and if his entry is forcibly resisted, he may at once avail himself of the remedy provided by this statute, without having given any notice whatever. But upon a mere refusal, unaccompanied with force, the remedy is not afforded, until he shall first have given thirty days written notice.
The facts detailed in the testimony referred to, do amount to a forcible detainer : but they are subsequent both to the complaint, and to the time of issuing the warrant. We are of opinion, that the causo of complaint must exist, before it is actually made, and the aid of the law, in this summary mode, invoked. It would lead to an abuse of the process, to permit a complaint to be made and a warrant to issue, upon a mere apprehension that force might be used, leaving it to the discretion of the constable, whether a proper case existed, to justify a resort to the jurisdiction of the magistrates.
By the second section of the statute, a complaint must be formally made in writing, to a justice of the poaco and of the quorum, of an unlawful and forcible detainer, before such justice is authorized to issue his warrant. The complaint, thus formally to be preferred, must necessarily be based, upon a prior unwarrantable exercise of force. We do not find in the testimony evidence, which would justify the jury in finding an actual forcible detainer, prior to the complaint; and the instructions, requested of the presiding Judge, that the testimony would warrant such a finding, were properly withheld. Exceptions overruledl.
