
    Follin & Fourgeaud vs. Peter J. Coogan.
    Jurisdiction— Certiorari — Landlord and Tenant — Forfeiture..
    
    Where a court of magistrates and freeholders orders restitution of leased premises to the landlord, certiorari is the proper remedy by which to determine whether the court had jurisdiction.
    Where a lease contains a provision for forfeiture on non-payment of rent, a court of magistrates and freeholders has jurisdiction to determine whether the forfeiture has been incurred, and if so, to award restitution to the landlord.
    As a general rule, there will be no forfeiture for non-payment of rent, unless demand of payment be made on the premises; but where repeated demands had been made, and the claim was not disputed, Held, thatdemand on the premises was not necessary.
    BEFORE WARDLAW, J., AT CHARLESTON, JUNE TERM, 1858.
    The report of his Honor, the presiding Judge, is as follows :
    “Under the Acts which afford to landlords an expeditious remedy for regaining possession, these plaintiffs instituted proceedings against the defendant, their lessee, and the result was a writ of restitution ordered.
    “ A petition for a writ of certiorari, presented by the defendant in this court, complains that the Court of Magistrates instructed the jury to find, and the jury accordingly found a general verdict, (which was for the plaintiff); whereas the finding should have shown, according to the evidence and the fact, that the lease, if determined, was determined not by expiration of time, but by forfeiture for non-payment of rent; and further, that the magistrate instructed the jury that the lease might be forfeited for non-payment of rent in arrear, although there was no evidence that payment of rent had been demanded on the premises.
    “ The return of the judicial magistrate to the writ of certiorari, (which by consent was understood to have issued,) sets forth the testimony and his ruling on the points mentioned, conformably to the statement of the petition. It seems that there had been demand by letter, and neglect to pay, but nó demand on the premises.
    “ I set aside the order for a writ of restitution. I thought it was a mistake to call the record of the proceedings before the special tribunal appointed by the Acts above mentioned, an inquisition, for the contest directed to be had between parties was a trial.
    
    
      “ I was of opinion that the Acts provide only for determination of a lease by efflux of time, and that cases of forfeiture must be tried as they would be if the Acts had, none of them, ever passed; and, moreover, that a demand on the premises was essential as a solemn act to fix the precise instant when the forfeiture was incurred.”
    PETITION.
    
      To the Honorable the Judges of the Court of Common Pleas:
    
    Be it remembered, that on the day of , come before the Judges of the Court of Common Pleas, P. J. Coogan,;and gives the said Court here to understand that on the of February, an order was issued under the hand and seal of Thomas 0. Elliott, Judicial Magistrate, and Henry W. Schroeder, Ministerial Magistrate of the District and State aforesaid, in pursuance of a verdict of twelve freeholders duly summoned for the purpose of determining the right to the possession of certain premises in Market street, between King and Meeting streets, in the city of Charleston, between the said P. J. Coogan and the said Follín & Fourgeaud, upon an. inquisition held before the said Magistrates at the time aforesaid, and directed to John E. Carew, Esq., sheriff of Charleston district, commanding him to eject the said P. J. Coogan, and to levy the costs of the proceedings out of the goods and chattels of him the said P. J. Coogan.
    And your petitioner humbly states, that the chief question at issue between the plaintiffs and the defendant, was whether said lease was determined by forfeiture for non-payment of rent in arrear, or by expiration of the term for which the premises were demised. And that the verdict of the said jury is erroneous by reason of error in the charge of the Court; and this petitioner sets forth as error in law, that the said justices instructed the jury that it was their duty simply to find for or against the plaintiffs by a general verdict; whereas it is respectfully submitted, that it was the duty of the jury to find the truth of the facts, and to set forth in their finding whether said lease was determined by forfeiture or by expiration of the term; that the said instruction was prayed for and refused.
    And also that the said presiding justice charged the jury that the lease might be forfeited for non-payment of rent in arrear, although there was no evidence that payment of rent had been demanded on the premises.
    Wherefore, the said P. J. Coogan, asking the aid of the Court, prays to be relieved, and that the said plaint may be removed from the said Court of Magistrates to the honorable Court herein to be certified, and that a writ of certiorari be directed to the said magistrates, commanding them without delay to certify and send the said plaint to this Court, together with the said writ, that such further proceedings may be had therein as to your Honors shall seem meet and proper.
    RETURN.
    These proceedings were had to restore landlords to their possession of the premises for non-payment of rent in arrear, which was covenanted for in the lease. The lease was duly proved by E. L. Henry, the witness to its execution. He also proved that a large amount of rent, three hundred dollars, or thereabouts, was then due and in arrear; and that he had repeatedly heard plaintiffs demand of defendant the rent, who never disputed the claim. Mr. O’Connor testified that on the 5th day of June, 1857, a distress was levied for rent, and that after applying the proceeds of the goods levied, there was still a balance of over sixty dollars due. That on the 2d day of October, 1857, he instituted an action of covenant for the whole amount due at the date of the suit. That since then, and up to the 1st of February, 1858, rent had accrued, and that no part of it had been paid. That some time in the month of January. 1858, he by letter twice demanded of the defendant the last quarter’s arrears, from October to January,’ and gave due notice that plaintiffs claimed possession by virtue of the conditions of the lease and the breach thereof.
    This constitutes the whole of the testimony in the case.
    Defendant’s attorney requested me to instruct the jury that they should find specially that the lease had been forfeited bynon-payment of rent, and that a general finding was insufficient. This motion was refused, as the inquisition, in its terms and language, was in keeping with established precedent and custom of the Court, and declared as authority in Pressley’s Law of Magistrates, and that the finding had hitherto in all such cases been general.
    It was also objected by defendant, that to incur forfeiture for non-payment of rent, demand on tbe premises must be' made. I instructed tbe jury that they were to determine the fact if sufficient demand had been made, and that if they believed the testimony, the demand and non-payment of rent had been sufficiently proved in law. They accordingly found generally for plaintiffs ; whereupon writ of restitution was awarded. The associate magistrate, with the presiding magistrate concurred in the verdict.
    
      The plaintiffs appealed upon the grounds:
    1. Because his Honor erred in ruling that the Court of Magistrates and Freeholders had no jurisdiction in eases of a lease terminating otherwise than by expiration of time; whereas, it is submitted, that the determination of a lease, by breach of its conditions, is embraced in the scope of the Act of 1839.
    2. Because if the Court of Magistrates and Freeholders could not legally entertain jurisdiction of the case presented, then the proper proceeding was by prohibition, and not by writ of certiorari.
    
    3. Because his Honor erred in deciding that no sufficient demand had been made for the rent; whereas, it is submitted, that the Court of Freeholders were properly made the judges of the proof of demand, and that it was for them to determine it.
    O'Connor, for appellant.
    Connor, contra.
   The opinion of the Court was delivered by

O’Neall, J.

1. The first question in this case is, whether the writ of certiorari was the proper remedy. I have no doubt that it was. The case of the State v. Senft and Prioleau, 2 Hill, 369, is authority to that point. When the case is thus brought up, and it appears the Inferior Court had no jurisdiction, the Superior Court may so decide, and quash the proceeding below.

2. The remaining question in the case is, whether the judgment of ouster pronounced by tbe magistrate and freeholders can be sustained. I think it can. •

The lease inter alia, provided, if default should be made in the payment of rent, that then the lease should be forfeited. There was no statement in the petition for the writ of certiorari that rent had been paid. The question was stated, as mainly in issue between the parties, whether the lease was determined by nonpayment of rent ?

The Act of 1812, (5 Stat. 676,) which was the first provision on this subject, provides “ that where any person or persons shall have leased or demised in writing any lands or tenements to any person or persons, for a term of one or more years, or at will, and he, she, or they, or his, her, or their heirs or assigns shall be desirous, upon the determination of the lease, to have again and possess his, her, or their estate, so demised,” &c.

The Act of 1817, (6 Stat. 67,) was intended to extend the remedy of the Act of 1812 to parol as well as written leases; whether it succeeded in this attempt or not it is not now necessary to decide. The eighth section of that Act may be important to be thought of in construing the word determination,” for it makes express provision that alterations or removal of buildings shall forfeit the lease.

The Act of 1839, (11 Stat. 21,) 23d section, providés for the trial by magistrate and freeholders, and ouster by their verdict and warrant, “on the determination of any lease in writing or by parol,” &c.

I see nothing in the words of the Acts which can confine “ the determination" of the lease to the efflux of the time for which it was granted. It is as much determined by the nonpayment of rent, as any other stipulation. Indeed, under the Act of 1817, it is plain that alterations or removal of buildings is a legal determination of the lease. When the parties contract, as they did in the case before us, that the lease shall be forfeited on non-payment of rent, it follows that the lease may be thereby determined.”

It is true, the landlord may not choose to avail himself of this forfeiture, but if he does, the tenant cannot bold over after the notice to quit provided.for in the Acts of 1812 and 1839. I see Mr. Pressley, in his excellent “Law of Magistrates,” states that a lease may be “ determined” by forfeiture. Law of Mag. 347. And forfeiture he ascribes to making alterations of the premises, and nonpayment of rent. If I entertained any doubt on the construction, this would determine it, for this work was got up and published in 1848, by the authority of the Legislature.

It is very true that acceptance of rent, or a distress after forfeiture, if the tenant continue in possession, might be a waiver. But where, as here, the whole rent in arrear was not paid, and subsequently rent accrued and also was not paid, I think it cannot be said there was any waiver. In order to claim a forfeiture from nonpayment, on the day fixed for payment of rent, it seems there must be a demand on the premises demised, but where repeated demands of rent in arrear are made, and the defendant, as in this case, does not dispute the claim, there can be no necessity for the demand on-'the premises. I am therefore of opinion that the magistrate below was right in holding, that the lease was forfeited according to its terms, by nonpayment of rent; and that a general finding was sufficient. So, too, I think he was right in instructing the jury "that they were to determine the fact if sufficient demand had been made, and, if they believed the testimony, the demand of rent and nonpayment had been sufficiently proved in law.”

The motion to reverse the decision of the Judge below is granted, and the order made by him for the writ of rerestitution is set aside.

Withers, Whitner and Glover, JJ., concurred.

Wardlaw, J.,

dissenting. A new and special tribunal must be kept within the limits of-its jurisdiction, and when circumstances are mentioned in the Act creating it, to point out the occasion for its action, they must exist to render its action lawful.

The Act of 1839, (11 Stat. 21, sect. 23,) condenses the material parts of the Acts of 1812 (5 Stat. 676) and 1817 (6 Stat; 68) concerning the expeditious remedy of landlords against tenants holding over; and it uses general phrases, such as “ try the facts,” “ entitled to the possession,” for particulars which are enumerated in the Act of 1812: but, except that it extends the remedy to cases of leases by parol as well as those in writing, the Act of 1839 has not been supposed to enlarge the jurisdiction of the Court of Magistrates and Freeholders, constituted by the former Acts. What is meant by the words “ on the determination of any lease,” used in both the Act of 1839 and that of 1812 ? The Act of 1812 clearly shows. These words refer to the expiration of the lease,” and mean when the term for which the premises were demised is fully ended.” When the facts have been found, one of which is that the “ term is fully ended,” the magistrates may issue their warrant. The determination of a lease by forfeiture, was not a case that, according to the preamble of the Act of 1812, called for legislative aid, and being a matter that usually involves more technical learning than the ending of a lease by efflux of time, it was left to the pre-existing law. The new remedy was expressly made cumulative, and was confined to the simple case, which is clearly defined.

The 8th section of the Act of 1817 has been supposed to show that cases of forfeiture were within the Act of 1812 ; but to my mind it appears confirmatory of the contrary-view. It shows that the “ residue of the unexpired term” belonged to a lease not ended by efflux of time, although an act of forfeiture had taken place; it provides a new cause of forfeiture, and by authorizing proceedings for that cause, excludes the implication that other causes of forfeiture were embraced. JUxpressio unius est exclusio alterius.

But supposing- that this inferior Court might proceed upon the determination of a lease by forfeiture, can it be said that a lease containing a condition of forfeiture for nonpayment on demand of rent in arrear, has been determined by several demands and refusals, not one of which took place on the premises demised? It will not do to say that here the -jury have found a sufficient demand. Instructions that demand on the premises was necessary, were asked of the presiding magistrate, and he refused to give them. It is manifest that the demands which were shown had been made by letter. See Co. Lit. 144 a, 153 a, b, 201 b; Plow. 133; 1 Bac. Ab. Conditions, O. 4.

“ A demand to avoid an estate for condition broken must be made on the land. Where the condition is .payment of rent, the land out of which the rent issueth is the principal debtor, and that is the place of demand appointed by the law.”

There must have been some moment when the lease ceased to have energy; this moment, in case of forfeiture, could only have been when the lessor or his heir, having entered, became possessed of the same estate which he held before the lease. Up to that moment the cause of forfeiture might have been forgiven, and the tenant would have continued to hold by efficacy of the original lease.

“ Regularly when any man will take advantage of a condition, if he may enter, he must enter; and when he cannot enter, he must make a claim.”

It has been said that the house was barred so that entry could not have been made. Demand and entry are necessary forms, even although neither the tenant nor any other person is on the land. It was not necessary to enter the house, for a demand on any part of the land was sufficient. If there was no land besides the house, a demand on the door sill would have sufficed, or whatever else was the nearest approach that the landlord could make to that solemn ¡entry, which might- show that the tenant’s right of possession was thereby reconveved to the landlord.

Might, a landlord, without entry, assert that a tenant’s lease had been determined by forfeiture, because of an alleged conveyance of a freehold estate, and thereupon.proceed before magistrates and freeholders to try this question of forfeiture?

I adhere to the opinion which I formed on the circuit.

Motion granted.  