Peter Vivian Daniel

“ In the second bill of exceptions it is stated that the defendant, by cross-examination of Isaac Robbins, the plaintiff's witness, proved that in the spring of 1820, defendant entered the premises as tenant, from year to year, under a parol demise from said Robbins as trustee of John Swayne, an insolvent debtor, and at the annual rent of $175, and continued to occupy the premises under said demise, paying the rent as it became due to Robbins, as trustee of Swayne, till the spring of 1824. ”

“ No action for use and occupation will lie, when possession has been adverse and tortious, for such excludes the idea of a contract, which, in all cases of this action, must be express or implied.' Authorities upon this point might doubtless be multiplied. ”

“ The first bill of exceptions states that the defendant, having offered to prove by competent and credible witnesses that during the entire period of his occupation of the premises, he had remaining thereon property sufficient to answer the rent, had the plaintiff chosen to distrain or sue for the same ”