Currier v. Jordan

Morton, J. The first case is an action for use and occupation. The defendant pleaded a tender, with a profert in curia. This plea is a conclusive admission of the plaintiff’s cause of action. For this reason, without considering the other questions raised, the ruling of the court, that “ no such actual possession by the defendant was proved as to entitle the plaintiff to recover upon an implied contract for use and occupation, and there being no claim for rent in the declaration, the action could not be maintained,” was erroneous. Exceptions sustained. The second case is an action under the Gen. Sts. e. 137, to recover possession of a lot of land in Lawrence. The case was tried by the court without a jury. It is not claimed that there was a forcible entry or detainer. The evidence warranted the presiding judge in finding that the defendant held the premises as tenant at will of the plaintiff, and that such tenancy had not been terminated by notice or otherwise, before this suit was brought. The bill of exceptions does not show any error in matter of law in the rulings of the presiding judge. Exceptions overruled.