ACTION FOR USE AND OCCUPATION. 445 



In the case of The Manor of BasingstoTce v. Lord Bolton there was 

 a bill by the lord of a manor against the tenant, alleging immemorial 

 payments, as rent, or in the natnre of rent, on the death of each tenant 

 by his successors, in respect of thirty-eight different estates. The pay- 

 ments were in lieu of heriots and reliefs. It appeared by the evidence 

 that the heriots were more probably heriot custom than heriot service, 

 and that the relief was by custom, and not by common right or by 

 reservation. Some of them had been j^aid by the executors of the 

 deceased ; it was not shown that the tenant was in possession of all 

 the lands alleged to be liable ; and only the aggregate amount of rent 

 was known, not the proportion due to each estate ; and Kindersley 

 V.-C. held that under these circumstances the lord had no equity 

 against the successors of the deceased tenant, although it appeared that 

 in consequence of the description and identity of the lands being lost 

 he could not enforce any claim at law. Commissioners of enclosure 

 have no powers, in exchanging freehold lands subject to heriots and 

 reliefs, to make the lands allotted so subject (ih.). 



The ad mi for vse and occupation existed before statute 11 Geo. II., 

 c. 19, but until the passing of that act the plaintiff was nonsuited if a 

 demise was proved. Except in that particular the statute did not make 

 the action maintainable in cases where it could not have been main- 

 tained before {Churchivard v. Ford). According to the words of section 

 14 of the statute it may be maintained *' where the agreement is not by 

 deed." Some agreement seems to be implied as the foundation ; though 

 it is well established that it need not amount to a formal demise, or 

 even be express. And jjer Patteson J . : "Corporations aggregate may 

 maintain actions on executed parol contracts. In The Bean and Chapter 

 of Rochester v. Pim'ce, Lord Ellenhorough C.J., first at Nisi Prius, and 

 the Court of Queen's Bench afterwards, held that they might sue in 

 debt for use and occupation of their lands ; and the Court of Common 

 Pleas, in The Mayor of Stafford v. Till, held the same as to assumpsit. 

 This establishes that where a benefit has been enjoyed, such as the 

 occupation of their land by their permission, tlie law will imply a 

 promise to make them compensation, which promise they are capable 

 of accepting, and upon which they may maintain an action " {Beverley 

 V. The Lincoln Gas Light and Coke Company). 



An action under the statute will not lie ivhere there has not heen an 

 actual entry ly the lessee {Lowe v. Boss). " Before the statute an action 

 for use and occupation might be maintained, unless an actual demise 

 were shown ; proof of which was held (though not uniformly,) to be fatal 

 to the action, either on the ground of its showing a real contract, or 

 because the demise having passed an interest, the defendant could not 



