I. RES REAL PRO PERTY. and occupation of a certain messuage, tenements, *and premises (q), (or, PECTING of a certain messuage, buildings, farm and land, as the case is) with the appurtenances, of the said plaintiff (r), by 'the said defendant, and at his special instance and request, and by the sufferance and permission of the [*42] said plaintiff, for a long time before then elapsed ($), *had, held, used, occupied, possessed, and enjoyed. And being so indebted," &c. (Conclude as ante, 37.)—The quantum meruit thereon, is as ante, 37, inserting as follows, "had before that time suffered and permitted the said defendant to have, hold, use, occupy, possess, and enjoy a certain other messuage, tenements, and premises, (or, a certain other messuage, buildings, farms, and land, as the case is) with the appurtenances, of the said plaintiff, and that he the said defendant had, according to the said last-mentioned sufferance and permission of the said plaintiff, had, holden, used, occupied, possessed, and enjoyed the same for a long space of time then elapsed, he the said defendant undertook," &c. (Conclude as ante, 38.) For the use and оссираtion of a The indebitatus count is as ante, 37, inserting these words, "for the use and occupation of a certain fishery, and the right of fishing in a certain river called the in the county of of the said plaintiff, by the fishery (t). said defendant, and at his special instance and request, and by the sufferance and permission of the said plaintiff for a long time before then elapsed, had held, used, occupied, possessed and enjoyed. And being so indebted," &c. (Conclude as ante, 37.)—The quantum meruit count thereon is as ante, 37, inserting as follows, "had before that time suffered and permitted the said defendant to have, hold, use, occupy, possess, and enjoy a certain other fishery and right of fishing in a certain other river called the in the said county of of the said plaintiff, and that he the said defendant had, according to the last-mentioned sufferance and does not seem material to allege that the es- Where there is an agreement under seal, If it be doubtful whether there be a demise under seal, it is advisable to declare in debt on demise, as in 1 Saund. 276, n. 1. 202, 3.-1 New Rep. 104.-Lord Raym. 1503, with a count in debt for use and occupation. This action for use and occupation seems the only remedy where there is no specific rent agreed upon.-5 B. & A. 322. When this action lies against administrators, &c. 2 J. B. Moore, 100.-When against assignees of a bankrupt, see ante, vol. i. 43. How to declare against executors for rent due since testator's death, 1 Saund. 112, 5th edit. 3 B. & A. 101. (7) In Bird. Wilton, Chelmsford Assizes, 9th March, 1830, cor. Bayley, J. dec. laration for use and occupation of a messuage with the appurtenances. The evidence was of a demise, not under seal of a messuage with a garden and paddock, and a point was reserved as to whether this was not a variance. Bayley, J. said, that stating the use and occupation to be, "of premises, with the appurtenances," would in general be safe. On a motion for a new trial, the court held this was no variance. Easter Term, 1830. K. B; and see 2 Saund. 400. 6 B. & C. 251. As the rent issues out of the realty, if the demise be of a house and furniture, the latter need not be noticed. 6 B. & C. 251. (r) It is not necessary or advisable to state the local situation; it would be fatal if misstated, see ante, 39, note a.-3 Campb. 235. -3 Taunt. 128.-3 M. & S. 380. But if described by a name generally known, a mistake may be immaterial. 1 Taunt. 570. -13 East, 9. (s) In 1 Rich. C. P. 1. and Morg. 17, the time is stated under a videlicet, but this is not necessary. (t) See form for the use and occupation of a water course, 4 B. & C. S. (As to the law and form of an indebitatus count for the use of tolls or other incorporeal hereditaments, see the Mayor of Carmarthen v. Lewis, 6 Car. & P. 608; Bird v. Higginson, 1 Harr. & Woll. 61. 1 Nev. & Man. 505, S. C. Although by agreement not under seal no interest will pass in any incorporeal hereditament, yet if a lessee, or other party has had the enjoyment thereof, indebitatus assumpsit for the rent or other agreed sum may be supported. Ibid.) permission of the said plaintiff had, held, used, occupied, possessed, and enjoyed the same for a long time before then elapsed, he the said defendant undertook," &c. (Conclude as ante, 38.) I. RE- REAL PRO- For the use of a way. The indebitatus count is as ante, 37, inserting these words, “for the use of a certain way and passage for divers cattle, waggons, and other carriages, loaded with timber, wood and bark (as the right of way may be), in, through, over, and along certain closes of the said plaintiff, before that time had, *used and enjoyed by the said defendant, and at his request, and by [*43] the sufferance and permission of the said plaintiff for a long time then elapsed, and being so indebted," &c. (Conclude as ante, 37.)-(The quantum meruit thereon is as ante, 37, inserting as follows,) "had before that time suffered and permitted the said defendant, by himself and his servants and other persons, and with cattle, waggons, and other carriages, to fetch, draw, take, and carry away divers large quantities of timber, wood and bark (as the case is), through, over, and along certain other closes and parcels of land of the said plaintiff, and that the said defendant had acordingly by the said permission of the said plaintiff, by himself the said defendant and his servants, and divers other persons, and with cattle, waggons and other carriages, fetched, drawn, carried, took and carried away the said timber, wood and bark, through, over, and along the said last-mentioned closes and parcels of land of the said plaintiff, he the said defendant undertook," &c. (Conclude as ante, 33.) use and оссира tion of a pew in a church. The indebitatus count is as ante, 37, inserting these words, "for the For the use and occupation of a certain pew and seats in the parish church of in the county of by the said defendant, and at his special instance and request, and by the sufferance and permission of the said plaintiff, had, used, occupied, possessed, and enjoyed by him, the said defendant and divers other persons, on divers Sundays and holydays, and other days and times, for and during a long time before elapsed, for the attending and hearing divine and church service performed in the said church, and being so indebted," &c. (Conclude as ante, 37.)—The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time suffered and permitted the said defendant and divers other persons to use, have, occupy, possess, and enjoy a certain other pew and seats in the said parish church of in the county of and that he the said defendant and the lastmentioned other persons had, according to the last mentioned sufferance and permission, used, occupied, possessed, and enjoyed the same on divers other Sundays and holydays, and other days and times, for and during a long time before then elapsed, for the attending and hearing divine and church service performed in the said church, he the said defendant undertook," &c. (Conclude as ante, 38.) For the use and seat in a The indebitatus count is as ante, 37, inserting these words," for the occupause and occupation of divers seats and places in and parcel of a certain tion of a messuage and premises of the said plaintiff by the said defendant, and di- house to vers other persons, before that time used, occupied, possessed, and enjoy- view a ed, for the viewing of a certain procession, on a certain day then past, and cession. at the special instance and request of the said *defendant, and being so [*44] publicpro 1. RE PERTY. indebted," &c.-Conclude as ante, 37.-The quantum meruit is as ante, 37, SPECTING inserting as follows, "had before that time suffered and permitted the said REAL PRO- defendant and divers other persons to have, use, occupy, possess, and enjoy, divers other seats and places in and parcels of a certain other messuage and premises of the said plaintiff, and that the defendant and the said lastmentioned other persons had, according to the said last-mentioned sufferance and permission of the said plaintiff, had, used, occupied, possessed, and enjoyed the same, in and for the viewing of certain other procession, on a certain day then past, he the said defendant undertook, &c. (Conclude as ante, 38.) For the use of a tennis court, rackets. The indebitatus count is as ante, 37, inserting these words," for the use of a certain tennis court of the said plaintiff by the said defendant, and at his special instance and request, and by the sufferance and permission of balls and the said plaintiff, before that time used in and for the playing of divers lawful sets and games at tennis therein, and for the use and hire of divers dresses, balls, and rackets of the said plaintiff, before that time let to hire, to the said defendant, at the special instance and request, and by the said defendant, according to that letting to hire, had and used, in and for the playing the said sets and games, and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows," had before that time suffered and permitted the said defendant to use a certain other tennis court of the said plaintiff, and that the said defendant had, according to the said last-mentioned sufferance and permission, before that time used the said last-mentioned tennis court in and for the playing of divers other sets and games of tennis therein. And also in consideration that the said plaintiff, at the like special instance and request of the said defendant, had before that time let to hire to him the said defendant divers other dresses, balls, and rackets of the said plaintiff to be had and used, and that he the said defendant had accordingly had and used the same in and for the playing of the said last-mentioned sets and games, he the said defendant undertook," &c. (Conclude as ante, 38.) For the of an inn (u). [*45] The indebitatus count is as ante, 37, inserting these words, "for the use, use, occu- occupation, and profits of a certain inn commonly called and known by pation, and profits the name and sign of the Inn, of the said plaintiff by the said defendant, and at his *special instance and request, and by the sufferance and permission of the said plaintiff for a long time before then elapsed, had, held, used, occupied, received and taken, and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon, is as ante, 37, inserting as follows, "had before that time suffered and permitted the said defendant to have, hold, use, and occupy a certain other inn, commonly called of the said plaintiff, and receive and take the profits thereof, and that he the said defendant had, according to the said last-mentioned sufferance and permission of the said plaintiff, had, held, and occupied the said last mentioned inn, and received and taken the profits thereof for a long time before then elapsed, he the said defendant undertook, &c. (Conclude as ante, 38.) (u) Ante, 40. 1. RESPECTING REAL PRO- 2. c. 19. s. "For that whereas the said defendant, after the 24th of June, 1738, mentioned in a certain act of parliament made in the 11th year of the reign of his late Majesty King George the Second, to wit, on the (x) day of November, A. D. at, &c. (venue) by force of the said stat- On 11 G. ute, became and was indebted to the said plaintiff in a large sum of money, 18. for to wit, the sum of [£10] of lawful money of Great Britain, for the use double and occupation of a certain messuage and premises, with the appurtenan- rent, tenant having ces, on the 29th day of September, A. D. 1830, held by the said defend- neglected ant, as tenant thereof to the said plaintiff, at and under the yearly rent to quit in of [£20], payable quarterly [to wit, on, &c. on, &c. on, &c. and on &c.] Pursuance (according to the fact) by the said defendant, and at his special instance own noand request for a long space of time, to wit, from the 29th September, A. tice (w). D. 1830, till the said 25th December, A. D. 1830, (according to the fact) had, used, occupied, possessed and enjoyed, notwithstanding a certain notice theretofore given by the said defendant to the said plaintiff of his intention to quit, and that he the said defendant would quit and deliver up unto the said plaintiff the said messuage and premises, with the appurtenances, upon the said 25th December, A. D. 1830, and being so indebted," &c. (Conclude as ante, 37.) of his The indebitatus count is as ante, 37, inserting these words, "for the use For the of certain pasture land of the said plaintiff, and the eatage of the grass use of pasture land, thereon growing, by him the said plaintiff before that time let to the said and eatdefendant, and *at his special instance and request, and by the said defend- age of the ant according to such letting, had and used in and for the depasturing of grass (y). cattle, for a long time before then elapsed, and being so indebted," &c. [*46] (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time suffered and permitted the said defendant to have and enjoy, and that the said defendant had accordingly had and enjoyed certain other pasture land of him the said plaintiff, and the eatage of certain grass thereon growing, in and for the depasturing of certain other cattle, for a long time before then elapsed, he the said defendant undertook," &c. (Conclude as ante, 38.) The indebitatus count is as ante, 37, inserting these words, "for the use, For the occupation, and enjoyment of a certain barn and barn yard (according to use, occupation, the fact) and premises, with the appurtenances, and of certain prædial and enjoytithes of the said plaintiff by the said defendant, and at his special instance ment of and request, and by the sufferance and permission of the said plaintiff for premises a long time before then elapsed, had, held, used, occupied, received, taken al tithes. and enjoyed, and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, "had suffered and permitted the said defendant to have, hold, use, occupy, receive, take (2) See a good precedent with notes, and a suggestion that the venue is local, 2 Went. 64, 65; see also a precedent and law, 2 B. & A. 652; see also the notes, Chit. Col. Stat. 1 vol. 647. The remedy, when the landlord gives notice to quit, is debt for double value, 4 Geo. 2. c. 28. s. 1. and see a form of declaration for it, post, 493. (z) Any day before the title of declaration. (y) This count is proper where the defendant has the use of the land, and turns on his cattle himself. When the plaintiff retains the land in his own possession, and depastures the defendant's cattle himself, the counts are for agistment, as post, 59; and when cattle are taken care of under cover, or in a straw yard, then the precedent is as post, 59. and prædi PECTING PERTY. 1. RES- and enjoy, a certain other barn and barn yard (according to the fact) and REAL PRO- premises, with the appurtenances, and certain other prædial tithes of the said plaintiff, and that he the said defendant had, according to the said lastmentioned sufferance and permission, had, used, occupied, received, taken, and enjoyed the same for a long space of time before then elapsed, he the said defendant undertook," &c. (Conclude as ante, 38.) · For the use and оссираtion of lands, with the The indebitatus count is as ante, 37, inserting these words, " for the use and occupation of a certain [messuage and buildings, lands, and] premises, with the appurtenances, and certain tithes of the said plaintiff by the said defendant, and at his special instance and request, and by the sufferance and permission of the said plaintiff, for a long time before then elapsed, held and enjoyed, and for certain tithes whereof the said plaintiff was the proprietor, issuing and arising from and out of certain lands and premises [*47] in the occupation of the said defendant, and by the said defendant before right to take the tithes. For the use and оссираtion of un that time, and at his special instance and request, and by the sufferance and permission of the said plaintiff, had taken and retained to his the said defendant's own use, and being so indebted," &c. (Conclude as ante, 37. -A quantum meruit may be readily framed.) The indebitatus count is as ante, 37, inserting these words, "for the use and occupation of certain rooms and apartments of the said plaintiff, in and parcel of a certain dwelling-house (z) by the said defendant, and furnished at his special instance and request, and by the sufferance and permission lodgings. of the said plaintiff, for a long space of time before then elapsed, had, held, For the use and оссираtion of furnished lodgings (b). used, occupied, possessed, and enjoyed (a), and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, " had before that time permitted the said defendant to have, hold, use, occupy, possess, and enjoy, certain rooms and apartments of the said plaintiff, in and parcel of a certain other dwelling-house, and that he the said defendant had, according to the said last-mentioned sufferance and permission, had, holden, used, occupied, possessed, and enjoyed the same for a long space of time then elapsed, he the said defendant undertook, &c. (Conclude as ante, 38.) The indebitatus count is as ante, 37, inserting these words, " for the use and occupation of certain rooms and apartments of the said plaintiff, in and parcel of a certain dwelling-house (c), by the said defendant, and at his special instance and request, and by the sufferance and permission of the said plaintiff, for a long space of time before then elapsed, had, held, used, occupied, possessed, and enjoyed, together with certain household furniture, linen, and other necessaries, goods, and chattels of the said plaintiff there[*48] in *being, and being so indebted," &c. (Conclude as ante, 37.) The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time suffered and permitted the said defendant to have, hold, use, oc (z) It is not necessary nor advisable to state the local situation, ante, 39, n. (a). (a) The count is sustainable, though the defendant may have refused to occupy, though in such case it is advisable to declare on the agreement, ante, 41, n. (b) See form, Plead. Ass. 282. (c) It is not necessary nor advisable to state the local situation, ante, p. 39, n. (b). |