USE AND OCCUPATION. 449 



entered under an agreement /<??• a lease, he voidd have Leen a tenant-at- 

 will until it was granted.. And j>^t Alderson B. : " While the defendant 

 was in possession under the contract for sale he was a tenant-at-will, 

 under a distinct stipulation that he should be rent-free ; therefore for 

 that time no action for use and occupation can be brought against him ; 

 but when that contract is at an end he is a tenant-at-will simply; there- 

 fore from that time he is to pay for the occupation (/&.)• If a vendor 

 remains in possession toithoul any agreement after the conveyance is 

 executed, such occupation does not of itself entitle the vendee to sue 

 him in use and occupation, as there is no evidence of a holding by 

 permission of the plaintiif ; but he is a wrong-doer, and may be turned 

 out by ejectment, and is liable in trespass for mesne profits {Tew v. 

 Jones). 



In Orij)j)s V. Blank, a person having a title to land sued the de- 

 fendant, who had received possession from a third person, and it was 

 held that tite conditiojial promise of the defendant about two years before 

 the trial, tvhen the plaintiff became owner of the land, and ashed him either to 

 give up possession of it or pay for it — " I do not consider the land as 

 yours ; but prove your right, and I will pay for it " — would not sup- 

 port assumpsit for use and occupation. At the trial the learned judge 

 was of opinion that the action would not lie in the absence of proof of 

 an unqualified attornment, and directed a nonsuit, which the Court 

 upheld. Bayley J. said : " The general rule certainly is, that if A. 

 receives possession of land from B., he cannot dispute the title of the latter 

 in an action for use and occupation ; but where he receives possession 

 from another person, he may dispute the title of the party suing as 

 landlord. Here the defendant did not receive possession from the 

 plaintiff, and therefore the evidence produced could not support use 

 and occupation." 



According to Rabbeth v. Squire, the words " iise and occapation^^ in 

 a will do not exclude under-letting. There a testator desired that his 

 two sons might have ^^ the use and occupation" of certain lands, they 

 paying a stated rent, and that in default of payment, or if they con- 

 verted the arable land into tillage, they should no longer have " posses- 

 sion " thereof ; and it was held by Sir J. RomiJly M.R. that personal 

 use and occupation was not enjoined, and that they might imderlet the 

 property. 



Although a demise be for a time certain, a landlord must make a demand 

 of possession, and give notice in writing, in order to recover double value 

 under statute 4 Geo. II. c. 28, s. 1. An action for double value lies in 

 the County Courts established under statute 9 & 10 Vict. c. 95 ; and 

 per Coleridge J. : *' There is no doubt that debt for use and occupation 



