
    HILLSBOROUGH,
    OCTOBER TERM, 1826.
    JAMES HILL vs. JAMES BOUTELL.
    
      hi an action of assumpsit for the occupation of land, where an express promise to pay rent is shewn, the defendantcannot controvert the title of the plaintiff.
    Assumpsit for use and occupation of a shop and tools in Hancock, in this county, from December 1, 1823, to September 13, 1824.
    Thé cause was tried here, upon the general issue, at April term, 1826 ; when it appeared in evidence, that on the 29th November, 1823, the defendant contracted with the plaintiff for the use of the shop and tools, for which he was to pay a reasonable rent ; and that he immediately went into possession under the contract, and occupied the shop and tools until the 13th September, 1824.
    The defendant then offered to prove, that at the time, when the said contract was made, the plaintiff was not the owner of the shop and tools. To the admission of this evidence the plaintiff objected, but it was admitted. And the. jury having returned a verdict for the defendant, the plaintiff moved for a new trial, on the ground, that the said evidence bad been improperly admitted.
    
      Luke Woodbury, for the plaintiff.
    
      Brown, for the defendant.
   By the Court.

It is well settled, that in an action for use and occupation, when an express promise to pay is shewn, the defendant cannot be permitted to controvert the title of the plaintiff. Buller's N. P. 139.—1 Chitty's Pl. 575.—1 Wilson 314, Lewis vs. Willis.—5 D. & E. 4, Cook vs. Loxley.

We are therefore of opinion, that there must be

J1 new trial granted.  