The Republican journal., 1903-02-19
AN INTERESTING CASE DECIDED.

Tllest9p Wadlin, Clerk of Courts, has re-
ceived from Charles F. Sweet, clerk of the
Law Court, the certificate of opinion in the
" aldo county case, A. NJ. Small vs.. d. H
Clark, in which the defendant prevails. In
August, 1901, writ of fOrcible entry and
detainer was issued by Trial Justice D. H.
Perkins of Freedom against D. II. Clark, to
terminate Clark's occupancy of the Lake
House, hotel in Freedom village. The
trial justice rendered a judgment in favor
of the plaintiff, and the defendant appealed.
Aug. 10, 1901, writ of possession was is
sued and the plaintiff and his property were
removed from the hotel by the sheriff Aug.
9th. The case was opened to jury at the
September term, 1902, of Supreme Judicial
Court, withdrawn from the jury and sent
to the Law Court on report The defendant
claimed to hold the premises under a lease
from John l. Watts, dated April 3, 1901, and
running four. years. The plaintiff bought
the hotel of Watts July l, 1901, and claims
that the defendant forfeited the lease by
violating the law against the sale of intoXi-
eating liquors. Sheriff Norton testified at
the trial that he made a search and seizure
at the Lake House in June, 1861. The re-
script by Judge Savage is as follows:
If the forfeiture of lease by using the
premises for the unlawful sale or keeping
of Intoxicating liquors, as provided by H.
S. chap II, sect. 3, be not taken advantage
of by the lessor, the lessee's continued oc-
cupaton is lawful, and the subsequent
grantee of the lessor cannot maintain for
chile entry and detainer based upon such
forfeiture.
1t is the owner of the premises at the
time of the forfeiture who may bring for
cib,e entry and detainer, and he alone.
Such a lease will remain in force until he
who is the owner at the time of forfeiture
determines the right of possession, by en-
try, or notice, or suit within seven days un-
der K. S. chap. "a, sect. l.
The word ''forfeited" in r. S. chap. II,
sect. 3, has the same meaning and effect
which the common law gives the same word
in leases. Hence, if lessee ''forfeitS' his
right under K. S. chap. II, sect 3, the lease
is not ipse facto absolutely void, but is void
able at the option of the lessor or owner.
When a lease for term of years provided
that 'if either party should see fit to term-
nate this lease before it expires he shall
pay the other $780, held that either party
had right to terminate the lease by paying
$50 to the other.
But the evidence in this case fails to salts
fy the court that the lease i'll question was
so terminated.
premises had no power to terminate the
lease, unless he in some way had an inter-
est in the lease, or acted by authority of the
owner, of neither of which facts is there
any proof in this case.
The plaintiff obtained judgment in the
lower tribunal against the defendant, and
the defendant having recognized TO the
plaiptitf prnvi6ad in II = chan sect
S, the plaintiff recognized to the defendant
as provided in sect 9 of the same chapter,
whereupon a writ of possession was issued
and the defendant was removed from the
premises. Subsequently the buildings which
were the subject of the lease were destroyed
by fire. Held, that writ of restoration
ought not to issue.
The defendant is entitled to recover as
damages for his unWarrantable eviction the
difference between the rental value OF the
premises and the rent reserved. IRON the
date of the EVICTION to the end of the term,
OF to the termination of the lease otherwise
Judgment for the defendant. No writ
of restoration to issue. If the plaintiff
shall, within 80 days after this rescript is
filed, terminate the defendants tenancy by
paving $50 to the clerk for the use of the
defendant for that purpose, defendants
damages are assessed at $50 per month from
Aug. 81, 1901, to the time the tenancy is so
terminated otherwise the defendant dam
ages are assessed at $50 per month from
Aug. p, 1901, to April 8, 1905 Judgment
and execution accordingly.
Dunton Il Dunton are attorneys for the
plaintiff Thompson and Littleted for de-
fendant.