
    Hannah H. Davis vs. William H. Alden.
    A plea to a complaint under Eev. Sts. c. 104, that the respondent “ is not in possession of the premises demanded,” is bad on general demurrer, and the complainant is entitled to judgment on the merits.
    This was a complaint under Rev. Sts. c. 104, in the form prescribed by section 4, returnable before the police court of New Bedford, where the respondent pleaded orally, and on appeal to the court of common pleas, pleaded the following defence : “ And the said Alden says that he is not in possession of the premises in said complaint described and demanded.” The complainant demurred to the plea, because it was bad and insufficient in law. At the December term of the court of common pleas, the demurrer was sustained, and the respondent appealed.
    
      T. G. Coffin, for the respondent. .
    
      R. C. Pitman, for the complainant.
   By the Court.

In a summary proceeding under that clause of the Rev. Sts. c. 104, which is the landlord and tenant act, the respondent pleads that “ he is not in possession of the described premises,” and to this the complainant demurs. We are of opinion that the plea was bad. It did not amount to a plea of non-tenure at the time the complaint was filed and notice served, nor to a disclaimer. It was not a plea of the general issue, and did not answer the complaint.

Demurrer sustained; judgment for the complainant.  