Johnson v. Stewart

Merrick, J.

1. The tenant held possession of the demanded premises only under an oral lease from the plaintiffs. His estate therefore was a mere tenancy at will. In all cases of neglect or refusal to pay the rent due on a lease at will, fourteen days’ notice to quit, given in writing by the landlord to the tenant, is sufficient to determine the lease. Rev. Sts, c. 60, § 26. It appears from the agreed statement of facts that the defendant was in arrears for rent; and that thereupon a written notice from the plaintiffs, bearing date the 12th of August 1857, was upon that day served upon, that is, given to him, requiring him to quit and deliver up the premises to them within fourteen days from that date. This was all that was necessary for the plaintiffs to do, to determine the lease and bring the tenancy at will to an end. The present suit was not commenced until the 31st of the same month. When an act is to be done within a given number of days-from date or the day of a date of a written instrument, the day of the date is to be excluded. Fuller v. Russell, 6 Gray, 128. Buttrick v. Holden, 8 Cush. 233. The defendant therefore had fourteen full days after the 12th of August, during which he might at any time, at his own election, remove from the premises. He was not required to depart until the last of the fourteen days ; but he was left at liberty, if he chose to do so, to quit them at any earlier period.

2. The motion to dismiss the action was properly overruled. The police court of the town of Chicopee, before and to which the writ sued out by the plaintiffs was made returnable, had general jurisdiction of the subject matter and cause of action set forth in the declaration. Rev. Sts. c. 104, § 4. St. 1855, c. 463. An actual service of the writ was made by a civil officer who was legally authorized to do so. This having been done, the plaintiffs duly entered their action, and thereupon the defendant appeared and moved that it should be dismissed for the want of, and because there had not been, a sufficient service of the process. Whether the objection thus taken was well founded then became a question of law, to be judicially determined by the court in which the action was entered and before which the motion was made. It thus had jurisdiction of the cause and of the parties to it. Raymond v. Bolles, 11 Cush. 315. And having this jurisdiction, it was competent for the court to allow the officer to amend his return. Johnson v. Day, 17 Pick. 106. Baxter v. Rice, 21 Pick. 197. The amendment having been allowed, and made by the officer, there no longer remained any valid objection to the maintenance of the action, on account of any supposed want of regularity in the proceedings of jurisdiction in the court.

3. The tenant took his lease from the plaintiffs. In the agreed statement of facts no question is reserved respecting either their title to the estate leased or their right as owners to prosecute the present action. No such question therefore is now open to the defendant. Judgment for the plaintiffs.