
    Rebecca Johnson versus Jonathan Carter.
    A license by a guardian to enter upon and occupy the land of his ward, expires at the death of the guardian.
    If one plead a license in an action of trespass guare clausum, and issue is joined thereon, evidence which goes to prove a lease will not support such plea.
    The declaration contained two counts in trespass, for breaking and entering two closes of the plaintiff, cutting down trees, &c. Besides the general issue to both counts, the defendant pleaded to the first count a license by the plaintiff, also a surrender of the plaintiff’s life estate to the defendant, the reversioner. The plaintiff replied to each of these pleas, both which resulted in issues to the country.
    The defendant also pleaded in bar to the first count that, before the supposed trespass, viz., on, &c.,at, &e., one Joseph Mclntire, who was then the lawful guardian of the plaintiff, for a valuable consideration then and there received of the defendant, gave him license to enter upon said close, cut and carry away said trees, continue therein, use, occupy, and take the profits of the same; by force whereof the defendant, on the same day, lawfully entered into the said close, cut and carried away the said trees, and continued to use, &c., until the commencement of the plaintiff’s action, without any legal notice to quit.
    The plaintiff replies, that after the day on which the said license is alleged to have been given, and before the trespasses were committed, the said Joseph Mclntire died, viz., on, &c., at, &c., whereby th.e said supposed license was revoked and annulled.
    To this replication the defendant demurs generally, and the plaintiff joins in demurrer.
    The said issues to the country were tried at the sittings here after the last November term, before Putnam, J. The defendant, to support his plea of not guilty, as to the second count, offered the . evidence of one Philip Peters, who testified that, during [ * 444 ] the life of Mclntire, who was guardian * of the plaintiff, he took a lease of the close described in the second count, from Mclntire; and continued to occupy the same by virtue of that lease, until Mclntire’s death. The consideration of the lease was, that Peters should board and support the plaintiff, who was to live with him. He further testified that the plaintiff had, ever since ti e death of Mclntire, continued to live with him on the premises, and to receive the same supplies, and in the same manner, as before the death of the guardian ; that he' had paid no other rent; and that he had made no contract with the plaintiff, respecting the occupation of the close, after the death of her said guardian; but had continued to occupy as above stated. There was no evidence of cutting trees.
    The defendant contended that this evidence was sufficient, and ought to be allowed and admitted as conclusive evidence of the legal possession of Peters, at the time of the alleged trespass, and to entitle the defendant to a verdict on the said second count.
    The judge instructed the jury that, although the defendant had produced no evidence of any bargain between the said Peters and the plaintiff after the decease of her guardian, they had nevertheless a right to presume a lease from her to Peters; but if they should not be satisfied, from the facts and circumstances in evidence, that any such lease or agreement was ever made, the defendant had failed in this defence.
    The jury returned a verdict for the plaintiff, and the defendant moved for a new trial, upon exceptions, filed.
    
      Locke and Stearns, for the plaintiff.
    
      Fuller, for the defendant.
    The action- stood over to the following March term for advisement, when the opinion of the Court was delivered by
   Jackson, J.

As to the first count, it is very clear that a license b/ the guardian would determine at his death. This is not denied; but il is said, that the facts stated in the plea show that this was a lease, and not a license; and that, if it was a lease, the defendant was not a trespasser * by holding over after [*445] the end of the term, but would be a tenant at sufferance, until a re-entry by the plaintiff, or a notice to quit; and that the defendant ought not to be prejudiced by having miscalled it a license.

If such a mistake had occurred in a deed, or any act in pais, the Court would not, perhaps, be precluded from construing the ex pression according to its legal effect and the true intent of the parties. But more strictness is required in pleadings. The party is to state his case, according to the legal effect and operation of the facts, on which he relies. It is not sufficient to display the evidence on the record, and leave it to the Court to infer that there was a feoffment, a lease, or a license ; but he must say that the party did enfeoff, or did demise, &c. If the defendant in this case had pleaded a lease by the guardian, the plaintiff might have traversed it; and from what appears in the case, there seems to be no doubt she would have done so; because on the general issue to this same count, she obtained a verdict. It being pleaded as a license, she had no occasion to deny it, although it might be wholly untrue; because she had a better answer, viz., that all the trespasses complained of were committed after the expiration of the supposed license.

As to the second count, the only question is, whether the facts proved were conclusive evidence of a lease by the plaintiff to Peters, or of any other lawful title in him. The evidence to that point appears very strong, if the exceptions exhibit the whole of it. But it was left to the jury, with proper instructions, and they have found for the plaintiff. They probably considered that the plaintiff, who was living on the premises, had the legal possession, as well as the properly ; and that Peters was merely her bailiff or agent. We have no means to ascertain whether they decided against the weight of evidence ; and indeed the question is not before us. But we are satisfied that the evidence was not conclusive for the defendant, and that it was properly left to the jury.

[ * 446 J * If there was no lease from the plaintiff to Peters, was the latter a tenant at sufferance ? This does not seem to have been suggested, as to the premises mentioned in the second count. But without inquiring what would be the effect of this fact, if true, it seems very clear that the evidence does not prove it. Instead of holding over wrongfully, against the will or without the knowledge of the plaintiff, Peters was living in the house with her, and upon some terms undoubtedly satisfactory to both parties. This joint occupation continued for a long time ; and if there was no contract or agreement respecting it between the parties, the seisin and possession would be considered to be in the one who had right. If there was any such agreement, he could not be tenant at sufferance.

There must be judgment for the plaintiff upon both the counts.  