— The demurrer to the plaintiff’s declaration, must have been sustained by the county court, under the impression that the statute of frauds, in declaring that, “ no action shall be brought upon any contract for the sale of lands, tenements, or hereditaments, or the making any lease thereof, for a longer term than one year,” unless evidenced by writing, furnished a bar to a recovery. It is clear that the case stated in the declaration, is not obnoxious to that statute. Alease for no definite term is alleged, or certainly not for a longer period than one year. True, an occupancy for the space of six years is stated, but it does not appear that this was under one contract for that time, or that it was not a continuous enjoyment of the possession under a mere permissive occupancy, indeed the latter conclusion is strongly inferable from the record court.
The action for use and occupation is given by the act of 1812, “ to provide for the recovery of rent in certain cases, not heretofore provided for.” [Aikin’s Digest 357.] That statute declares that any person to whom rent is due, when the demise is not by deed, or if by deed, not specifying the rent to be paid, may recover a reasonable satisfaction for the tenements occupied by the defendant, in an action on the case for the use and occupancy of what was held and enjoyed: “ and if on evidence on the trial of such action, any parol demise reserving certain rent, ora demise by deed, but no rent therein agreed on, in either case the plaintiff in such action shall not be non-suited, but shall recover a reasonable satisfaction for the tenements occupied.” *537There is no want of conformity to this statute in the declaration —it is alleged that the defendant at his special instance and request, was permitted by the plaintiff to occupy the premises— that in consideration of such permissive occupancy for the space of six years, he promised, &c. to pay, &c. the sum in which it is said, he was indebted. The second count instead of stating the defendant’s indebtedness at any sum, goes upon the quantum meruit. This declaration is not only good under the statute, but if it can be considered as relying upon an express promise to pay a sum certain, or so much as the plaintiff deserved to have founded on the consideration expressed in it, it is good even at common law. [3 vol. Selwyn’s N. P. Phil. Ed., 1808, page 1180— 81—82: Williams v. Winsgate, 6 T. R. 62: Hennell’s forms, 36: 3 vol. law lib.]
The judgment of the county court could not have been influenced by the consideration that the statute of limitations may have barred a recovery to some extent. The statute, if relied on. should be pleaded, but even upon the supposition that it should be judicially7 noticed, it could not avail in this case; because it does not appear that the defendant’s promise as alleged, was not made but a short time before the action was brought.
In every view the judgment is erroneous — it is consequently ■reversed and the case remanded.