The instructions given at the trial were suffi-ciently favorable to the defendant. Under them, the jury have found that the relation of landlord and tenant existed between the parties; that the defendant, at the time of giving the notice, was in- possession of the premises as tenant of the plain*379tiff; and that rent was then due and in arrear. This is all th plaintiff is required to prove in order to maintain this process. Kimball v. Rowland, 6 Gray, 224. It is not material wi ether the jury found this relation to exist under the Whiting lease or under the oral contract. The bill of exceptions states that the court fully instructed the jury, without exception being taken, as to the different ways in which such relation could be created and its existence proved. We are to presume, therefore, that proper instructions were given as to what would create or prove an existing tenancy, either under an assignment of the Whiting lease or under a paroi demise. It does not appear that any part of the defendant’s requests, which was material and called for in the case, was not included in the instructions given.
Exceptions overruled.