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 158says 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.

In Support of Complaint in Case Neal’s Action is not entered.1

I do not know, nor is it possible for your Honours to determine, what Reason induced the Plantiff to renounce this suit. Whether it was, because the Estate is insolvent, or because he had no Cause of Action, or because his Action was mislayed, or because his Writ was bad, which by the Way is very probable, considering who drew it, that determined the Plantiff, not to enter this Action, I cannot say, and your Honours cannot determine. It appears to your Honours, that the Defendant has been vexed and distressed by this summons, that she has been obliged to take a Journey to this Town, and to attend upon this Court, where it appears there is nothing for her to answer to. All this appears. What Motive induced the Plantiff to drop his Action does not appear, and therefore We have a Right to Costs. As Things are Circumstanced, I will own, that had this Action been commenced by any Gentleman, at this Bar, I would have dispensed with this Complaint, but it was drawn by a petty fogging Deputy Sheriff against whom I know it is my Duty, and I think it is my Interest to take all legall Advantages. And he himself cannot think it hard, as he has taken both illegal and iniquitous Advantages against me. Therefore I pray your Honours Judgment for Costs.—Q. If this Action should be entered, what must be done with it? Continued, or dismissed?—A Motion must be made for a Continuance or a Dismission.

Neals Action is entered so that I have two Actions to defend by Pleas in Bar and three of the Actions I entered, are to be defended, Clark is to Plead in Abatement and Tirrell and Thayer are, I suppose, to plead to issue. Clark gave a Note of Hand to Captn. Brackett in his Life time, and after his Death, on a Reckoning with the Administratrix, a Ballance was found due to the Estate upon Book, for which he gave 160a new Note to the Widow as Administratrix. Now I have laid both these Notes in one Declaration in Conformity to the Province Law, which forbids two Bills of Cost, upon Instruments, Bonds, Bills, Notes &c. executed by the same Party, and made payable to one and the same Person, and put in suit at the same Time. Dana pleads in Abatement, that these Notes, tho executed by the same Party, were not made payable to one and the same Person. The first was made payable to Bracket, and the second was made payable to his Wife—and cites 3rd. Salkeld 202. “A. owed to B. £20 as Executor, and £10 more in his own Right. One Action will not lie against him for the whole Money, because there must be several Judgments.” And Dana says, that soon after he began Practice, he drew a Writ upon a Note taken by an Executor, as Executor, for a Debt of his Testator, and drew the Writ as if the Note had been taken in the Executors own private Right. Auchmuty1 for the Defendant, pleaded in Abatement that the Note was given to Plaintiff as Executor, not in his own Right, and the Inferiour Court abated the Writ, but he appealed, and at the Superiour Court, got Mr. Reed to speak for him, who contended that the Words as Executor, were idle, and the Court unanimously set up his Writ.