ALEX SKAGGS v. P. N. EMERSON

Appeal from the County Court, Sonoma County.

The plaintiff, on the 15th clay of April, 1872, by lease in writing, demised to the defendant for the term of one year from the 1st day of May, 1872, with the privilege of two years, the premises known as the “Skaggs Springs,” northwest of Healdsburg, in Sonoma County, State of California, to include the hotel building, cottages, corrals, and half the bam; also, the small fenced field (about ten acres), southwest t)f the hotel, and the garden and orchard at the hotel; the defendant agreeing to pay therefor one hundred and fifty dollars per month. The defendant, on the 1st day of May, 1873, elected to retain the premises another year. On the 15th of September, 1873, he failed to pay the rent due for the month previous, and the plaintiff, on the 18th of September, gave him written notice to pay the rent or surrender up the premises. This action was commenced on the 27th of September, 1873, under the Unlawful Detainer Act, to recover possession of the premises for violation of the lease in the non-payment of rent. An amended complaint was filed, and a demurrer to the same was overruled. A demurrer to the answer was sustained, and an amended answer was filed. The amended answer averred that, by the terms of the lease, the plaintiff was to furnish the defendant with ten good milch cows and that he had furnished but nine, and that a certain cottage, called the “Hewitt Cottage,” was included in the demised property, and that about the 8th of February, 1873, during the temporary absence of the defendant, the- plaintiff unlawfully took possession of said cottage and refused to surrender it to the defendant, in violation of the implied covenant on the part of plaintiff that defendant should quietly enjoy the demised premises. It was alleged that the defendant had sustained one hundred and ninety dollars damage, and the defendant asked to sot it off against the rent. The plaintiff moved to strike out this part of the amended answer, and the court granted the motion. The answer, as it stood, denied any indebtedness on the lease. The case was called for trial on the 3d of October, 1873. The defendant objected to a jury trial on the ground that no demand for a jury had been made by the plaintiff, either in the manner or at the time required by the statute, and that no jury fee had been deposited. The court overruled the objection on the ground that, on the 27th of September, the court had made an order at the verbal request of the plaintiff, requiring a jury to be summoned. The court also directed the plaintiff to deposit twenty-four dollars for a jury fee. The plaintiff had a verdict and judgment, and the defendant appealed.

<p>Landloed and Tenant.'—If a tenant is forcibly evicted from a substantial part of the demised premises, by the landlord, and the lease is not terminated, but the tenant still continues to occupy, under the lease, the part of which he retains possession, the tenant cannot be compelled to pay the rent reserved, for, in such case, there can be no apportionment of rent.</p> <p>Unlawful Detainee.—If a tenant is forcibly evicted by the landlord from a substantial part of the demised premises, but still continues to occupy the remainder under the lease, the landlord cannot, under the Unlawful Detainer Act, recover possession from the tenant by reason ot nonpayment of rent while the eviction continues.</p>