Kennedy v. Hitchcock

4 Port. 230 | Ala. | 1836

HOPKINS, J.

— The only question, which it is necessary to determine in this case, is, whether the demand and notice required by the statute, and which was given in the name of Sanford, for whose use Hitchcock sued out the precept for an unlawful de-tainer against the plaintiff in error, was evidence upon the trial by the jury'? it was admitted as testimony against the objection of Kennedy.

The demand of the delivery of possession, must be made by the person, his agent, or attorney,- entitled to the writ of unlawful detainer, before it issues, and that it was so made, must be proved upon the trial. In this case, the demand was made by Sanford, in his own name, and not as the agent or attorney of Hitchcock. The evidence of the demand ought to have been rejected by the justice of the peace, and the Circuit Court erred in affirming his judgment ^*

Let the judgment be reversed.

HITCHCOCK, C. J. — Not sitting.

* aosfiLif: 011A- ^