
    WYMAN & al. v. HOOK.
    
      ¿Assumpsit -will not lie against a judgment debtor for the use and occupation of land set off on execution against 'him, where he contests the regularity of -, the proceedings, Unless an express contract be proved.
    í’bactice. At the hearing of summary exceptions under Slat. 1822, ch. 193j the argument regularly should be confiiied to the points taken at the trialj and stated in the bill,
    was assumpsit for the use and occupation of a tenement in Canaan, and came before this Court upon exceptions filed in. a summary manner in the Common Pleas.
    It appeared that the plaintiffs, being judgment creditors of the defendant, had extended their execution oh divers rooms, being part of his dwelling house, and the land on which that part stood , — that his wife had chosen one of the appraisers, he' being absent out of the State; — that the plaintiffs had no pos« session of the premises, other than the formal livery of seisiii made by the sheriff; — that the defendant continued to occupy the house as before; — and there was no evidence that he had fever made any agreement with the plaintiffs for the occupation of the tenement, or engaged to pay rent,1 or acknowledged in Sny mafirifer that hh held finder them.
    Upon this evidence the counsel for the defendant objected, 1 st, that the return was illegal, for want of authority in the wife to choose an appraiser, and because it shewed an inconvenient and ruinous division of a'dwelling house;- — and 2d, that here' was no contract' upon which assumpsit could be maintained. But the Court below overruled- the objections'.-
    
      Boutelle, for thd defendant,-
    at the argument which was had at the last term in this county, maintained the objections to the Return which were taken in the Court below: and' offered to-’ take another point which was not stated in the bill of exceptions. But the Court observed that in these cases the regular' course of practice required that counsel: should confine themselves to the point's made at the trial and stated in the exceptions.' Upon the second objection he argued that this form of action for use and occupation lies only upon an express promise, made at the time of the demise; — that it will never lie "for a'stranger for the purpose of trying his title; — and that here the defendant had remained in possession, always refusing' to admit any title, in the plaintiff under the extent. Lames ok Plead', in assumpsit, 492 — 6. Smith v. Stewart, 6 Johns.. 46.-Codman v, Jenkins,-1-4 Mass. 93.
    i?ice,'fofi' the plaintiff,
    denied lEát'in thÍ3 case there was any difference Between an' express and an implied promise; and’ contended that this action will lie against one holding by im~-' plied permission ; and that the contract was found by the verdict below. 2 Phil. Ev. 68. note. 13 Johns. 240. Dean, fyc, of Rochester v. Pierce, 1 Campb. 466. 8 D. E. 327. Cummings al.--v. Noyes, 10 Mass. 433.-
   Mellen C. J.

at this term delivered the opinion of the Court’.-

It is not necessary to give any opinion upon the objections taken to the legality of the extent; because we are of opinion' that,if it be in all respects conformable to the provisions of the statute relating to that subject, the action cannot be maintained upon the facts stated in the exceptions. Assumpsit’will not lie' for use and occupation of land, unless upon some contract between the plaintiff and defendant. It may be express, or implied y — but unless it be one or the other, the relation of landlord and tenant cannot exist, — as we had occasion lately to o-b-serve in the case of Little v. Libby. [ante p. 242.] In the present case no express contract is pretended ; and the case shows that no evidence was offered that the defendant in any manner acknowledged himself as holding the tenements under the plaintiffs. No fact appears on the exceptions from which such tenancy may be implied. On the contrary the defendant is-objecting to the levy as -irregular, and as having passed no estate to the^ plaintiffs. And notwithstanding the ‘decision in Cummings & al. v. Noyes, we do not perceive on what principle the present action can be supported. The plaintiff must seek some bther remedy.

Exceptions overruled and Judgment affirmed,  