446 PAROL DEMISE. 



be said to occupy by the plaiutiff's pcrmissiori. In some instances an 

 exception was allowed, where an express promise could be proved or 

 intended. The alteration introduced by the statute was, that proof of 

 a demise unless by deed was no longer fatal to the action ; but the 

 terms of the demise might be used as evidence of the quantum of 

 damages (6 A. &, E. 839 n.)." Bebtiov use and occupation lies at common 

 law, where there is an express demise at a certain rent, not by deed 

 {fJibaon V. Kirk). Afier referring to the above note, in which all the 

 principal cases are collected, Lord Denman C.J. added : " The Court in 

 Jjeverley v. The Lincoln Gas-light and Coal Company observed that an 

 action for use and occupation is established by 11 Geo. II., c. 10, which 

 expression must not be taken as meaning that it was introduced by the 

 act, but only that it was established, even in cases where there was an 

 express demise at a certain rent, though not under seal. Yet no instance 

 of indebitatus assumpsit for use and occupation will be found before that 

 act, nor any founded upon a quantum meruit ; they are all for some fixed 

 sum. So debt for rent was at all times maiutainable, whether the demise 

 was by deed, or by writing not under seal, or by word of mouth ; both 

 which latter are, of course, included in the expression 'j;ar<9^ demise,' so 

 frequently met with in our books (ib.)." 



Although an action for tise and occyjmtion requires some agreement 

 exirress or implied, to pay for the occupation, yet there may be a liahUity 

 for use and occupation where no action for rent could be maintained ; 

 and therefore if a party enter under an agreement for a demise at a 

 certain rent- — the rent not to commence until the repairs are completed 

 by the landlord, the agreement being silent as to the terms of the 

 present occupation — the entry and occupation before the repairs are 

 executed may be evidence to go to the jury of an implied agreement to 

 pay in the meanwhile what the premises were worth. And even if the 

 tenant leave before the repairs are executed, the question will be 

 whether there was such an implied agreement ; and if there were, he 

 will be liable for a reasonable compensation for his occupation {Smith 

 V. Eldridge). And see Johnson v. 31ay ; Freemason v. Booman ; Ilason 

 V. Welbank ; and Jones v. Clark. And as to tJie distinction between an 

 action for rent and an action for use and occupation, see Towne v. 

 UEynrick, where the Court of Common Pleas held iu an action for the 

 " use " of a house, that an actual or constructive occupation must be 

 proved, and that the fact of the defendant giving directions on the 

 premises to workmen whom the landlord sent in to do repairs, was no 

 evidence of an entry to take possession, which is necessary to charge a 

 j)arty in this form of action. 



Use and occupation will not lie if a title is in dispute. Where a lease 



