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-
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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,