Ray v. Armstrong

4 Cal. 208

• Court: California Supreme Court
• Decided: April 15, 1854
• Status: Published

Opinion

Mr. Ch. J. Murray

delivered the opinion of the Court.

Mr. J. Heydeneeldt concurred.

The arbitration between the parties, as disclosed by the record, is conclusive, unless affected by fraud or error, and as nothing of the kind appears to have been set up, the award is * decisive of the cause. By its terms, [209] the defendant was to leave the premises on the 9th, while the notice to quit, which precedes the plaintiff’s action, and is necessary to sustain it, was given on the 3d,. and the action is commenced on the 10th.

Under the award, the plaintiff had no right to give notice to quit until the 10th, and then, by the Act of Forcible Entry and Detainer, the defendant had six days in which to remove, before the plaintiff’s right of action.accrued.

It follows that the suit was prematurely begun, and should have been dismissed.

The judgment is reversed, aud the cause dismissed at the costs of the respondent.