
    Joseph H. Sears & another vs. Caroline Trowbridge.
    A demurrer to a declaration containing a sufficient count for use and occupation, and a second count on a lease to a third person which shows no written assignment of the lease to the defendant, must be overruled.
    Action of contract on two counts : 1st, For use and occu- ' potion of a house from January to July 1855. 2d, On a lease of the same house from July 1854 to July 1855 to Giles B Johnson, by permission of whom and of the lessors the defendant in January 1855 entered and occupied under the lease, and purchased the lease of Johnson, and promised to pay to the plaintiffs the rent thereof; but this count alleged that the plaintiffs were ignorant whether such assignment to the defendant was oral or written, and that if in writing they had not seen it and could not annex a copy.
    The defendant demurred to the declaration, and assigned for causes that the first count could not be maintained, because it appeared by the second count that during the whole occupation there was a valid subsisting lease of the premises; and that the second count showed no valid assignment of the lease to the defendant. In the superior court in Middlesex at September term 1859, Vose, J. overruled the demurrer, and the defendant alleged exceptions.
    
      W. Hilliard & J. P. Converse, for defendant,
    cited to the first count, Codman v. Jenkins, 14 Mass. 93; Taylor on Land. & Ten. § 436; and to the second, St. 1852, c. 312, § 2, cl. 9; Rev. Sts. c. 59, § 29; Quackenboss v. Clarke, 12 Wend. 555; Van Rensselaer v. Jones, 2 Barb. 64; Taylor on Land. & Ten. § 280; Barry v Ryan, 4 Gray, 523.
    
      W. S. Gardner, for the plaintiff.
   Hoar, J.

The demurrer being to the whole declaration, and the first count being a good count for use and occupation, the demurrer was rightly overruled. The second count does not show that there was an assignment to the defendant in writing.

Exceptions overruled  