11 Johns. 1 | N.Y. Sup. Ct. | 1814
delivered the opinion of the court. The defendant contends that as the suit is for a forfeiture of the lease,, for the non-payment of rent, the lessor of the plaintiff was bound to have shown upon the trial, either that no sufficient distress was to be found upon the premises, to entitle him to recover under the act of the 21st of February, 1788, s. 23. (and which was copied from the statute of 4 Geo. II. c. 28.) or that they were bound to show a regular demand of the rent with all the nicety and precision required by the rules of the common law. (See these rules collected in 1 Sound. 287. n. 16.) In Roe, ex dem. West, v. Davis, (7 East, 363.) Lord Ellcnborough held it not to be indispensable in an ejectment under the statute to prove that no sufficient distress was to be found. But this, though perhaps the most liberal, was not the hitherto received construction of the act; for in the cases of Doe, ex dem. Hitchings, v. Lewis, (1 Burr. 614.) Goodright v. Castor, (Doug. 485, 486.) and of Doe, ex dem. Forster, v. Wandless, (7 Term Rep. 117.) the court of K. B. consider it as a given point, that the plaintiff must prove either a demand or no sufficient distress; and in Jackson v. Wilson, in this court, (3 Johns. Cases, 295.) the same doctrine was recognised. Nor can we discern, on a careful examination of the statute, sufficient ground for adopting the new, and rejecting the long settled previous construction.
The counsel for the plaintiff contend, however, that admitting the general rule, a regular demand was not requisite in this case, as the defendant, on being applied to for the rent, not only refused to pay, but disclaimed holding under any lease from the Van Rensselaer family, and asserted that he held under a warranty deed; and it was further shown in confirmation of his disloyalty, that for the better part of the premises he had agreed,
judgment for the plaintiff
N. B. In the case of Jackson, ex dem. Van Rensselaer, v. Defriest, which was argued at the same term, the court alscs gave judgment for the plaintiff, as depending on the same principies as the above case?