The demand in front of the warehouse was sufficient.
The cases cited by the respondents' counsel are numerous, but upon examination they will be found either to have no relevancy to the question or not to sustain his position.
Of the cases cited in the respondents' brief the following have no reference to the place or manner of demand, but refer exclusively to the proper day or time of making demand: Chipman v. Emeric , 3 Cal. 283; Gaskill v. Trainer , 3 Cal. 339; Smith's Landlord and Tenant, 119, 120; Taylor's Landlord and Tenant, sec. 297; those cited in the note to sec. 493 of Taylor's Landlord and Tenant, to wit: Clun's Case, 10 Rep. 129 a; 1 Leonard, 141; Cro. Eliz. 209.
In Connor v. Bradley, 1 Howard, 216, cited in note to section 493 of Taylor's Landlord and Tenant, the Court upon this subject merely say: " The demand must be made in the most notorious place of the land, even though there be no person on the land to pay," citing several authorities. Taylor himself, in section 493, says: " The demand must be made at the most notorious place upon the land, which, if there be a dwelling house, is the front door."
So, also, 1 Saunders, 287, also cited in above note.
Coke on Littleton, 202 a, cited in the note to the above section, says: " If one place be as notorious as another, the lessor has his election to demand it at either, and although the lessee be in some other part ready to pay the rent, yet that will not avail him."
The same language is found in 2 Platt on Leases, pp. 333, 334, cited by respondents' counsel.
In 2 Platt on Leases, pp. 333, 334, cited by respondents' counsel, the following is the language used: " If a house or a house and lands form the subject of demise, the lessor must appear at the front door, being the most notorious part of the house, and there demand the rent, whether the lessee or any one on his behalfbe there or not; a demand at the back door is not sufficient."
Coke on Littleton, 153 a, cited in the notes to the above authority, has the following language: " If there be a house and land, a demand on the land is sufficient." These are all the authorities cited by the respondents' counsel, and from them it will be seen that his position cannot be sustained. It is further to be observed that not one of them is an opinion in a case adjudicated upon the point, but that they are all either propositions laid down by elementary writers, or loose dicta uttered by Judges in determining some other question.
The rule to be deduced from all the cases is, that the demand must be made in the most notorious place.
JUDGES: Rhodes, J. Mr. Justice Sawyer, having been attorney in the case in the District Court, did not sit on the hearing of the case. Mr. Justice Shafter, having been consulted in this case, when at the bar, did not participate in the decision nor hearing.
OPINION
RHODES, Judge
By the Court, Rhodes, J., on petition for rehearing.
The appellants insist that a sufficient demand of the rent was made at the dwelling house; and they made the same point in their brief, but it was overlooked by us, probably in consequence of their holding that the demand at the warehouse was sufficient. The Court below found " That the demand was made at each of the doors, on the north, west, and east sides of the warehouse, but that no demand was made at the said dwelling house, or in front, or at the front door thereof." Although the person, while making the demand at the office door, stood near the dwelling house, we doubt if he intended to make a demand at the front door of the dwelling house, and we cannot say that the Court committed an error in finding the fact to be, that no demand was made at that place. We are satisfied that we have correctly stated the law in respect to the place where the demand was required, at common law, to be made. The remarks of Sergeant Williams, in the notes to Duppa v. Mayo, 1 Saund. 287, may have been founded on mere dicta, as stated by the appellants, but that learned writer's notes have for many years been regarded as high authority, and the doctrine that the demand must be made at the front door of the dwelling house, if there is a dwelling house on the leased premises, has been generally recognized by the Courts, except when the rule has been changed by statute.
We are asked to grant a rehearing, that the question may be argued, whether the common law demand was required, when the landlord proceeded under section thirteen of the Forcible Entry Act. If the question was now for the first time before the Supreme Court, we should have great hesitation in holding, that in such a case, the demand as required at common law was necessary to be made; but, in Chipman v. Emeric , 3 Cal. 273, and Gaskill v. Trainer , 3 Cal. 334, it was held, that in order to work a forfeiture for the non-payment of rent, the landlord must make the demand with all the strictness required at common law. Those decisions have been too long recognized as the correct construction of section thirteen of the Forcible Entry Act, to be now changed by the Courts; and the rule has, in fact, been changed by the Legislature since the commencement of this action. (See Statutes 1862, page 420.)
Rehearing denied.