Machias Hotel Co. v. Fisher

Appleton, C- J. — The demandants,' owners of the premises demanded, on Dec. 30, 1865, leased the same to the tenant, — the lease to "expire on 31st day of Dec., 1870.” The tenant has always remained in the occupation of the premises leased, and been ready to pay the ground rent agreed upon. It is agreed that the tenant, at the October term, 1866, of this Court, was indicted as a'common seller of intoxicating liquors; to which he pleaded nolo contendere, and was sentenced to pay the fine prescribed by the statute, and costs, which he paid. If does not appear that the offence was committed upon [323] the premises leased. The case is not therefore within the statute of 1858, c. 54, § 3, by which a lease is made void, when the lessee uses the premises leased " for the illegal sale or keeping of intoxicating liquors.” The tenant seasonably filed, among other specifications, " that he holds a lease of the demanded premises from the plaintiffs, and did at the date of the plaintiffs’ writ, and said lease is still valid, in force and unexpired.” The tenant likewise pleaded the general issue. By the common law, the tenant by the plea of mil disseizin admits that he is in possession, claiming a freehold. The plaintiffs insist that, inasmuch as the tenant has not filed a brief statement setting forth his lease, that he cannot introduce evidence of that fact under the general issue. Williams v. Noiseux, 43 N. H., 388. But this case comes before us upon an agreed statement of facts, signed by counsel, and without any stipulation that the decision shall be influenced by the pleadings. In such case, the defendant is to have judgment if the facts would verify any plea which would be a bar to the action. Gardiner v. Nutting, 5 Greenl., 140; Moore v. Philbrick, 32 Maine, 102. The lease to the tenant was offered in evidence without objection. It is signed by officers duly elected, who hold over, " until other officers are duly chosen and qualified in their stead.” B. S., 1857, c. 46, § 7. The demandants having leased the premises for years, and the lease being in full force, this action cannot be maintained. Plaintiff nonsuit. Cutting, Kent, Walton, Barrows and Danforth, JJ., concurred.