An action of assumpsit for use and occupation cannot be maintained when there is no contract or promise, express or implied, to pay for the occupation.
CLARK, J.
There being no evidence of any contract, express or implied, between the plaintiffs and the defendant to pay for the occupation of the premises, or that the relation of landlord and tenant ever existed between them, the action cannot be maintained, and the motion for a nonsuit should have been granted.
Exception sustained.
CARPENTER, J., did not sit: the others concurred.