By the Court.
McDonald, J.delivering the opinion.
[1.] The action for use and occupation will not lie, where *314the defendants claim title adversely to the plaintiffs. Such a claim is inconsistent with the pretence that they occupy the' premises as tenants of plaintiffs. The defendants in this case held the land adversely, and the relation of landlord and tenant could not be implied, and the action cannot be sustained.
[2.] The Court below decided correctly in disallowing the amendment. Neither the practice of the Courts nor the Statutes, in relation to amendments, as liberal as they arej. would admit of it. The declaration is a perfect one, and requires no amendment. If it had 'been defective in form or substance, the plaintiffs might have amended it as a matter of right, but the difficulty was not that the declaration was defective, but that the action would not lie. The action was not wrongly entitled. All the allegations in the declaration show that it was correct in that respect. The proposition was, to-change the entire structure of the declaration, and to allow the party to file a new declaration, giving a new aspect to the case throughout, setting forth a new cause of action. It. could not be done.
Judgment of Court affirmed.