¶1In this case, it was contended for the plaintiff in error that assumpsit will not lie at common law, for the use and occupation of land, but was given by statute 11, Geo. 2, chap. 19, which is not in force in this commonwealth, and therefore this suit is not maintainable.
¶2The court, upon examining the authorities, find that assumpsit. for the use and occupation of a farm, etc., would lie at common law upon an express promise to pay; and an express promise being charged in the declaration, the suit is properly conceived.' But no term of use and occupation being stated in the declaration, the court is of opinion that this error is fatal. Therefore, it is considered by the court, that the judgment aforesaid be reversed, annulled and set aside; that the cause be remanded to the court from whence it came for new proceedings to be had therein, to commence by amending the declaration; and that the plaintiff recover of the defendant his costs in this behalf expended, which is ordered to be certified to the said court.