tion were all where a rent in certain is reserved; but here if this action does not lie, the party shall be without remedy; for debt would not lie because it is uncertain, and there can be no distress, because there is no rent: wherefore judgment was given for the plaintiff. S. C. 242.

In view of this and the previous cases, Professor Wooddeson in treating of the action of assumpsit, lays down not only that if there be a collateral and express promise to pay the rent, and no deed executed under seal, it may be recovered in this mode; because it appears that the promiser intended to give the plaintiff this additional remedy;" but further that "this action is also maintainable to obtain a recompense for the occupation of the plaintiff's land by his permission where there is no stipulation for any precise rent." 3 Wood. 152, 3.

And now, in England, the action of indebitatus assumpsit for use and occupation is constantly brought, whether there has been a certain term and a certain rent or not. There, the occupation of land by a person bound to pay some remuneration of it, without the amount or time of payment being fixed, was, and is now, of rare occurrence. But when it does occur, the implied contract is raised by law from the fact that land belonging to the plaintiff has been occupied by the defendant by the plaintiff's permission; the obligation is coextensive with and measured by the enjoyment: as soon as the occupation ceases, the implied contract ceases; and as no express time is limited, the remuneration must necessarily accrue from day to day. 1 Adol. & El. N. S. 855, 6.

The passage above quoted from 3 Wood. 152, 3, was cited and relied on in Virginia by Tucker, J. in 4 H. & M. 171; and 1 Munf. 407. The court of appeals of this state held that according to the common law the action of assumpsit for use and occupation of land by permission of the plaintiff may be maintained upon an express promise to pay for such use and occupation, Eppes's ex'ors v. Cole & wife, 4 H. & M. 161; or upon an implied promise, Sutton v. Mandeville, 1 Munf. 407. The remedy afforded by this action had before the Code of 1849, been recognized as an existing common law remedy, not only by the decisions just mentioned, but also in the legislation of the state, Sess. Acts 1815, 16, p. 51, ch. 15, 6; and by the supreme court of the United States, Lloyd v. Hough, 1 How. 158.

When the permissive holding is established such an action. may be maintained on the implied undertaking in Maryland, Stockett v. Watkins's adm'r, 2 Gill & J. 339; and in Pennsylvania. It is considered there, (in accordance with Mason

v. Welland,) that the action on a quantum meruit lies at common law. Henwood v. Cheeseman, 3 S. & R. 503.

In Kentucky the action may be maintained when the possession has been held by the owner's assent (without any express valid contract for the payment of rent) under circumstances from which the law will imply an obligation to pay, and a right to receive compensation for the use. Logan v. Lewis, 7 J. J. Marshall 3. This is declared to be the law of that state without any aid from the statute of George 2. Johnson v. Beauchamp, 9 Dana 125, 6. Nor is the action limited to cases where there has been no express promise or lease. If the tenant has occupied the land under a mere verbal promise to pay a given sum for permission to occupy the land, the action is maintainable. Burnham v. Best, 10 B.

Monroe 227, 8.

Whether or no the statute of 11 Geo. 2 is in force in Massachusetts as statute law, the supreme court of Massachusetts thought it unnecessary to decide; being of opinion that by a long course of practice which must now be considered as the common law of the state, the action of assumpsit for use and occupation may be maintained for rent not reserved by deed. Gould v. Thompson, 4 Metcalf 227; Knowles v. Strapleigh &c. 8 Cush. 333.

5. Object of the statute of 11 Geo. 2, c. 19, § 14. How far since this statute, a party in an action for use and occupation may use a writing which is not a deed making a demise. How to fix what is a reasonable satisfaction.

What then was the object of the statute of 11 Geo. 2, c. 19, 14? The preamble states that it was "to obviate some difficulties that many times occur in the recovery of rents when the demises are not by deed." Those difficulties are mentioned by Bathurst, J. in Syllivan v. Stradling, 2 Wils. 214, 15; and by Martin, B. in Finlay v. Railway Co. 7 W. H. & G. 419. On the trial of an action on the case for use and occupation, it sometimes appeared that there was a parol demise or an agreement (not by deed) reserving a certain rent; and thereupon the plaintiff was nonsuited, it being considered that the common law remedy in such a case was by action of debt and not assumpsit. To remedy this, the statute of 11 Geo. 2, c. 19, § 14, enacted as follows:

It shall and may be lawful to and for the landlord or landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements or hereditaments, held or occupied by the de

fendant or defendants, in an action on the case, for the use and occupation of what was so held or enjoyed; and if in evidence on the trial of such action any parol demise or any agreement (not being by deed) whereon a certain rent was reserved shall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered.

Notwithstanding this statute, an action of assumpsit for use and occupation will not lie where there is a demise by deed; the proper action in such case being debt or covenant. Codman &c. v. Jenkins, 14 Mass. 95, 98. But the plaintiff is not to be nonsuited because there appears in evidence on the trial, a writing under seal which is not a lease of the premists but only an agreement for a lease, Elliott v. Rogers, 4 Esp. 59; or an invalid lease, 8 Hammond 180. The action for use and occupation may be maintained unless there be a valid deed making an actual demise and reserving a certain rent for which an action could be maintained, founded on the deed. Abeel &c. v. Radcliff, 13 Johns. 299. No other demise will defeat the action, although it might have done so before the statute.

Though there be a demise the plaintiff in this form of action recovers not rent but an equivalent for rent—a reasonable satisfaction for the use and occupation of what has been held and enjoyed: the fixed rent is only used as a modicum by which the uncertain damages are liquidated. Nash v. Tatlock, 2 H. Bl. 323; Egler v. Marsden, 5 Taunt. 25, 1 Eng. Com. Law Rep. 6; Martin, B., 7 W. H. & G. 420; Henwood v. Cheeseman, 3 S. & R. 501; Little v. Martin, 3 Wend. 219. To ascertain at what rate payment is to be made, resort may be had to an agreement, though void by the statute of frauds, De Medina v. Polson, 1 Holt 47, 3 Eng. Com. Law Rep. 21; or to a lease, though invalid, Wilson v. Trustees, 8 Hammond's Ohio Rep. 180.

The compensation due for use and occupation, accrues de die in diem. It was so considered in a case in which both parties agreeing that the defendant's liability ceased after a fire, there was no demise for a term certain; the action depending on actual occupation, the plaintiff recovered a ratable proportion of the rent up to the time of the fire. Packer v. Gibbins, 1 Adol. & El. N. S. 421, 41 Eng. Com. Law Rep. 608.

If, under the contract, rent is payable half yearly for half a year's occupation, and a declaration is framed specially according to the terms of the contract, it must contain an averment that the plaintiff allowed, or was willing to allow the defendant to occupy during the half year. Littledale, J. in

Hall v. Burgess, 5 Barn. & Cress. 332, 11 Eng. Com. Law Rep. 246. A letting by the landlord to a third person before the expiration of that period would negative such averment. It is such an eviction of the tenant as would bar the landlord if his action were on the demise. And that action being barred, he will not be allowed in such case to maintain an action for use and occupation. S. C.; Beach v. Gray, 2 Denio 84.

6. To maintain an action for use and occupation, the fact of use and occupation must be alleged and proved.

Though the statute gives a collateral remedy for the actual holding in cases where it might be difficult to sustain the action of debt, yet the remedy is not always co-extensive with that which the action of debt for rent would afford. Richardson, J. in Richardson v. Hall, 1 Brod. & Bingh. 50, Eng. Com. Law Rep. 18.

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A lessee for years was liable to pay rent whether he occupied or not; but in the case of a lease at will it was necessary to aver occupation. Bellasis v. Burbridge, 1 Ld. Raym. 171.

To support the action for use and occupation, the land. must have been occupied by the defendant, his agents or under-tenants during the time for which compensation is claimed. Nash v. Tatlock, 2 H. Bl. 323; Whitehead v. Clifford, 5 Taunt. 518, 1 Eng. Com. Law Rep. 173; Woolley v. Watling, 7 C. & P. 610, 32 Eng. Com. Law Rep. 653; Wood v. Wilcox, 1 Denio 37; Beach v. Gray, Id. 84.

The defendant is answerable if a tenant occupied the land under him; for an occupation by such tenant is, as far as respects the plaintiff, an occupation by the defendant himself. Bull v. Sibbs, 8 T. R. 327. And although neither the defendant nor any person under him may have had actual occupation of the premises, yet there are instances in which he has been held liable where he might, if he had chosen, have occupied the premises, as where a tenant locks them up and goes away. 2 Stark. N. P. Cas. 526, 7; 3 Eng. Com. Law Rep. 459; Little v. Martin, 3 Wend. 219; McGunnagle v. Thompson, 10 S. & R. 251; Marseilles v. Kerr, 6 Whart. 504. Parties have been repeatedly held liable in actions for use and occupation although there has not been an actual occupation for the whole of the time in respect of which the actions have been brought. Alderson, B. in Pinero v. Judson &c. 6 Bingh. 206, 19 Eng. Com. Law Rep. 56; Grant v. Gill, 2 Whart. 44; Westlake v. De Graw, 25 Wend. 669; Jones v. Reynolds, 7 C. & P. 335, 32 Eng. Com. Law Rep. 531. The

land need not have been beneficially or even actually occupied if the defendant might have taken possession, and continued to have the right of actual occupation whenever he pleased to take it. Parke, B. in Nation v. Tozer &c. 1 C. M. & R. 175; Sullivan v. Jones &c. 3 C. & P. 579, 14 Eng. Com. Law Rep. 461.

But there must be what amounts to an entry by the lessee, to maintain an action against him for use and occupation. Edge v. Strafford, 1 Cr. & Jerv. 391; 1 Tyrwh. 293; Lowe v. Ross, 5 W. H. & G. 553. Where the agreement has been executed by two lessees, the entry of one at the time therein fixed will sometimes be treated as an entry in respect of both, so as to sustain the action for use and occupation against both. Glen v. Dungey &c. 4 W. H. & G. 61. But when a sole lessee has entered and died, this form of action is not maintainable to charge his executor individually without an entry and occupation by him. The executor cannot be personally liable to an action for the use and occupation of that of which neither he nor any one whose act is in point of law his act, has been in the actual possession. Nation v. Tozer &c. 1 C. M. & R. 172; 4 Tyrwh. 561.

So if the lease be made to a woman who enters and occupies and then marries, although the contract of the wife may so charge the husband as to admit of a joint action against husband and wife, for what is due on that contract, yet if action be brought against the husband alone, and the declaration be framed as in an ordinary case of use and occupation by the husband, the plaintiff cannot recover for the time before marriage, when there was no occupation by him. Richardson v. Hall, 1 Brod. & Bingh. 50; 5 Eng. Com. Law Rep. In this form of action, the occupation before marriage was, as it regards the husband, the same as if it had been by a stranger. As Richardson, J. said, if on the day of the marriage the woman, instead of marrying "had sold her interest, no action could lie against the vendee for her occupation; he would have been a stranger; and the husband was equally a stranger to her occupation."

The same principle applies when a term is assigned by deed to trustees. It may be that at common law an assignment charges the assignee with the premises unless he disclaims. (Ante, p. 90-98.) But an action of assumpsit for use and occupation, will not lie against the assignees unless they actually enter and take possession. How v. Kennett &c. 3 Adol. & El. 659; 30 Eng. Com. Law Rep. 174.