delivered the opinion of the Court. Before this case was brought to trial below, the pleadings in the cause were several times amended, on the motion of the plaintiff, the appellant in this court. The last amendment changed the writ from a suit against Elisabeth H. Newman, executrix of Francis Newman, to an action against her in her own right, for the purpose of making her personally liahle for rent that had incurred after she took possession of certain demised premises, leased to her husband a little before his death. The two first counts of the declaration accordingly allege, that the plaintiff, on the 21st of January 1818, leased for one year to Francis Newman; that Francis Newman died soon after, and before he had entered; and that Elizabeth II. Ncioman took letters testamentary on his estate, and by virtue of the lease, and the letters committed to her, possessed herself of the leased premises, and occupied them the remaining part of the year. On the trial of the general issue of non assumpsit, all these facts were proved by the plaintiff to the jury, save the fact of Elizabeth H Newman being the executrix of Francis Newman, which he could not prove as alleged, or overlooked in stating the evidence in the bill of exceptions. In the absence of testimony of this material fact, the court rightly determined, that Elizabeth IT. Newman was not liable for the sum claimed of her, as far as it was sought to charge her therewith on the tw® first counts. The object was to sustain the suit against her as assignee in law of the term, which could only be done by showing her to be executrix of the lessee, and that she possessed th» demised premises under the letters testamentary, when the rent became due to the lessor. On such occasions general pleading is allowable, but it must be shown, as well as alleged, that the defendant is either in fact or in law assignee of the term. The plaintiff here has sufficiently charged it in his declaration, but he has failed to establish it in evidence to the jury, and therefore cannot maintain his action on this ground. There is also a third count in the declaration, which the plaintiff has not succeeded to support by testimony. This alleges the use and occupation of the same premises by Elizabeth II. Newman, by *256the sufferance and permission of the plaintiff, which permission lie has not attempted to prove in any way. To support an action for use and occupation, a demise must be shown, or some evidence given, to establish the relation of landlord and tenant, between the plaintiff and defendant. Smith vs. Stewart, 6 Johns. Rep. 48. In this case no direct proof has been offered for this purpose, and it cannot be presumed from the facts given in evidence to the jurj^. A lease to Francis Newman, a little before his death, is in proof, and it excludes the inference that Elizabeth TT. Newman held under a demise to her. Non con-stat that she was the executrix of Francis Newman, and no other person than his executor or administrator had a right to possess and hold the leased premises. The executor or administrator might assign, but the lessor, the plaintiff in this suit, cannot be presumed to have had any thing to say to the premises, after he leased them to Francis Newman.
We forbear to express any opinion in relation to the- judgment of the court on the demurrer to the plea of plene administravit. It does not appear to us to be embraced in the appeal taken in the case by the plaintiff. Subsequent to its being pronounced, all the pleadings that led to the demurrer, underwent an amendment on his motion, which would hardly have prevailed, if a design of appealing liad been then avowed by him. Indeed his very motion to amend, implied his acquiescence in the court’s decision, and is to be considered a waiver of his right of appeal, if it could be exercised, after the pleadings anterior to the demurrer had given place to the new or amended pleadings.
We might also well observe silence with regard to the amendments in the pleadings made in the court below, and which were brought into view on the argument of this case. They were made in favour of the plaintiff on his own application, and the appeal comes alone from him. But as there is a diversity of opinion on the true construction of the act of 1785, ch. 80, s. 4, and of the act of 1809, ch. 153, s. 1, which is like it, and the practice of amending writs under those acts has been variant in,different judicial districts of the state, we esteem this a fit opportunity to settle the- law on this subject. The words of the acts are, “the courts of law shall have full *257power and authority to order, and allow amendments to be made in all proceedings whatsoever before verdict, so as to bring the merits of the question between the parties fairly to trial.” These general expressions we interpret to mean, all proceedings in a cause subsequent to the return of the writ, and as not authorising an amendment of the writ itself, which furnishes the question, the merits of which is to be tried between parties. To alter the writ, it would seem would be to chango the question between the parties, instead of bringing it /airly to trial between them — when the writ is to bo amended, it must be by the titling, or by some other part of the proceedings, agreeably to the law prior to the said acts of assembly.
JUDGMENT AFFIRMED.