Octr. 7th. 1760.
Waited on Mr. Gridley for his Opinion of my Declaration Lambard v. Tirrell, and for his Advice, whether to enter the Action or not.1 He says the Declaration is bad and the Writ, if Advantage is taken, will abate.
For It is a Declaration on a Parol Lease, not on a Deed, and therefore the Lessee’s Occupancy ought to be sett forth very exactly, for it is his Occupancy, not any Contract, that supports the Action.—You have declared, that Defendant by Virtue of the Demise, into the Tenements, entered, and the same Premises had, held and occupied. But you have not declared when he entered, nor how long he occupied. He might enter, and remove again from the Premises in 3 months, for ought appears on this Declaration. You have taken this Declaration from a Precedent of Lillies. But Lilly and Mallorry are not Authorities, Coke and Rastall are, and in them, the Distinction is taken between a Declaration on a Lease Parol, and one on a Deed, an Indenture. In a Declaration on an Indenture, it is not necessary to set forth when the Defendant entered nor how long he held: because by the Indenture he had a Right to enter and occupy, if he would, but whether he occupied, or not, he has indented to pay the Rent, when the time is out: But in a Declaration, on a Parol Lease, it is necessary to set forth, both when he entered and how long he stayed, because the Occupancy is the Cause and foundation of the Action. Besides you have not alledged that the Rent was to be yeilded and payd upon Demand, and this would abate the Writ.—Mr. Gridley sent me to Otis’s office to examine in Viners Abrigment, under the Title Rent, and in the Entries, i.e. Lilly, Mallorry, Coke, and Rastal, under the Title Debt, for some Authority to decide the Point whether the Exception was fatal, or not. I could find nothing in Viner, Lilly, or Mallorry, but Mr. Gridley shewed me in Coke and Rastall the Distinction taken between a Declaration on a Parol and on a Written Lease.
G. says, that an Indenture for the Year 1758, att a certain Rent; and the Lessees Continuance in the House, and the Lessors Permission to continue in the House, thro the Year 1759 without any new Indenture, or any Contract or Conversation about any Rent, is presumptive Evidence, that Each Party intended, the Rent should continue the same. The Lessees Continuance, in the House, without taking the Pains of going to the Lessor, to treat about new Terms, is sufficient Evidence of his Satisfaction with the old Terms and of his Consent to pay the old Rent. And the Lessors Permission of his Tenant to continue in the House, without taking the Pains to make a new Contract, is sufficient Evidence of his satisfaction with the old Terms, and of his Consent that they should continue.
1. JA’s client, the plaintiff, recovered £9 6s. 8d. as a result of this action in the Inferior Court; the defendant appealed to the Superior Court at its Feb. 1761 term, but did not prosecute, and judgment was affirmed (Superior Court of Judicature, Records, 1760–1762, fol. 177). The bills of costs in both courts, in JA’s hand, are in Suffolk County Court House, Early Court Files, &c., No. 81586. See JA’s argument under second entry of 17 Oct., below.