Beach v. Mills

Brainard, J. The question in this case is, whether an action on book will lie for the rent of land. This action on book is founded in a kind of moral necessity. The whole civilized and commercial world has, in substance, the same thing. The principles of it, I believe, were introduced into this country from Holland, by the first settlers of New-England; and the practical form of the action, and principles necessarily attendant on it, were early adopted, by the legislature of Connecticut. Its origin, doubtless, was in commercial transactions ; but its use became necessary in the common intercourse of life between man and man. That in this common and necessary intercourse between man and man, there should always be wit [497] nesses either of the delivery or payment of an article, could not be expected. Hence a mutual confidence and an interchange of recollection became necesary to furnish testimony founded on means of knowledge common to both. But this action on book ought not to be extended beyond its necessity. The use and occupation of land are obvious. A man claims title. To prove it, he produces his deed, or other evidence ; and whether another has, or has not, occupied it, ought not to depend on the testimony of either. The necessity censes ; for the fact, if it existed, must have been obvious. The appropriate action for use and occupation of land, is assumpsit ; and whether this would or would not lie, unless upon a special promise ; and whether the statute of 11 Geo. 2, was necessary to give the remedy ; are questions, which it is not now necessary to discuss. We have rationally decided^ that for the use and occupation of real estate, with the permission of the owner, assumpsit will lie. I am of opinion that there is error in the judgment of the county court. Hosmer, Ch. J. was of the same opinion. Peters and Bristol, Js. dissented. Judgment to be reversed.