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former suit being a bar, the record does not property, the charge of existing debts on the show anything but the answer, or whether it real estate, the power of the executor, the exwas dismissed “without prejudice."

istence of a trust, and their duty to execute it

by a sale of the property charged by the will, Vr. Justice BALDWIN delivered the opinion the decision of the court has settled the rules of the court:

and principles on which the present controA summary of the points decided, and prin. versy must be determined if they are applicaciples settled in the former case between these ble; it was made on great consideration, parties, will save much time in the investiga- founded on authority,and nothing which has tion of those which are involved in this

been urged in the argument of this case has After taking a condensed view of the will of caused us to entertain the least doubt of its David Peter, the court declare that he had un entire conformity to the well established law questionable right, so far as respected his of equity. So far as the evidence and facts of children, to charge the payment of his debts that case were considered and adjudicated, the upon any part of his estate he might think decree of this court is final and conclusive; the proper, and that none but a creditor could con parties and the subjects of controversy between trol his will in that respect; that he had consti- them were the same as are now before us; negtuted his widow the trustee of the proceeds of ligence and misapplication of assets were all his estate, for the maintenance and educa- charged on the executors, the existence of tion of his children; and invested her with un- debts to them or the banks was denied by the limited discretion in this respect, so far as the then complainants, and now defendants, and proceeds of his estate would go. Whereby the both facts adjudged and decided adversely to surviving executor is not accountable for any- them; and the auditor's report was confirmed, thing so applied by her, even if she would be whereby every fact it contained became estabchargeable with a devastacit, and that the pro- lished and binding on the parties in any future Ceeds of all his estate being thus vested in the controversy, as to any matter thus adjudicated. vidow, would render it necessary, independ. In Hopkins v. Lee, this court state the settled ent of any express direction in the will, that law of all courts to be, that, as a general rule, recourse be had to the real estate for the pay- a fact which has been directly tried and dement of the debts. (10 Peters, 562, 563.) The cided by a court of competent jurisdiction, court then decide, that the surviving executor cannot be contested again between the same hail power to sell, and that it was impossible parties in the same or any other court. Hence to draw any other conclusion than that it was a verdict and judgment of a court of record, or a the intention of the testator that the sale should *decree in chancery, although not bind-[*149 be so made. (10 Peters, 566.) On the inquiry ing on strangers, puts an end to all further conwhether there is any subsisting debt due from troversy concerning the points thus decided bethe estate of David Peter to the banks, the tween the parties to such suit. In this, there court say, there is no pretense that they have is, and ought to be, no difference between a been paid in fact, and if not, the trust remains verdict and judgment in a court of common unerecuted, and the land still remains charged law and a decree of a court of equity. They with it. If the executors have paid the banks, both stand on the same footing. 6° Wheat., or the banks have accepted their notes in paya 113, 114; S. P., 1 Wheat., 355; 12 Peters, 492.) ment of the notes of the testator, the only ef- Whatever, therefore, our opinion might now fect is that the executors became the creditors be as to the facts adjudicated in the former instead of the banks, and may resort to the case, the judicial power is incompetent to retrust fund to satisfy the debt. But the court vise the evidence on which the decree was also say, that under the circumstances of the rendered, on any ground now set up in the case there is no ground for considering the debt answer of the defendants, or apparent on the of the banks to be extinguished, and they then present record, and they must be taken to be proceed to state the result of their consideration beyond all controversy in this or any future to be this:

case between the parties. Before proceeding 18+] *That the will created a power coup. to consider the questions appropriate to this loi with an interest that survives ; that the cause, a reference to the case of Fenwick v. surviving executor is the person authorized to Chapman (9 Peters, 466) will be useful, in execute that power and fulfil that trust; that order to ascertain what principles were there the debt due the banks has not been extin- laid down and are applicable to the present guished, or the estate in any way discharged controversy. Adopting the general rule that from the payment. That the executors are the personal estate of a testator shall in all cases not chargeable with negligence or such misap- be primarily applied to the discharge of his plication of the personal estate as to make them personal debts or general legacies, unless he by responsible for the payment of these debts; express words or manifest intention exempt it, and that from the auditor's report on the ac- the court thus qualify the rule; where the tescounts of the executors, exhibited to, and tator's intention clearly appears that a legacy allowed by him, there has at all times been, shall be paid at all events, the real estate is and now is, a considerable balance in favor of made liable on a deficiency of personal assets. the executors against the estate. The court So where without any assistance from the will, then refer to the exceptions taken to the the nature of the thing to be done may clearly an-ditor's report, and declare them to have been show the intention to charge the real estate properly overruled by the court below, and with a debt; as, where the thing to be done proceed to render their decree as before re- cannot be partially performed by the executor, ferred to. (10 Peters, 569, 570.)

without defeating the instruction which directs So far, then, as related to the construction it, and the thing itself. On this principle the of the will, the disposition of the personal court holds that the manumission of slaves HOWARD 1.

U. S., Book 11.

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pursuant to the directions of a will under the unless some valid objection has been made out law of Maryland (which is the law of the east by the respondents. ern part of this district) operates as a specific It has been contended that the frame of the bill legacy to the slaves, and to charge the real is too defective to justify any action upon it, for estate with the payment of the debts of the the want of necessary averments, but when we testator, even though he may have, at the time take it in connection with the former cause to of his death, no other personal property than which it refers, the agreement of the parties on slaves. (9 Peters, 471, 473.) That the cred- file, and the answer of the defendants, we itor may be carried into a court of equity, think that a satisfactory answer is at hand. or voluntarily resort to it to obtain his debt, | The object of the bill is clearly stated; such either from the lands or the personalty, when averments are set forth as on its face shows the testator leaves it doubtful from what fund some equity which requires an answer; inforhis debts are to be paid; that lands devised for mal as they inay be, they would stand the test the payment of debts, or which have become of a demurrer, especially with the aid of the chargeable by implication, constitute a fund agreement, by which it appears that the de150*] *for the payment of debts, and an fendants fully understood the nature of the ample and plain remedy is admitted to exist in plaintiff's case, the object sought, and the evithe law of Maryland, so to apply them. dence on which they would rely. The answer

“The will is the executor's law, and he is no is fyll to every matter of fact or law which more than the testator's representative in all could be averred in the best drawn bill; there things lawful in the will. A special legacy of has been no allegation of surprise, or any want all the personal property is a law to him;" if of notice of the grounds on which the plaintiff there is an insufficiency of “personal assets to rested his case, and the parties went to the pay debts, it is the executor's duty to file a bill hearing on the bill as it stood, fully prepared against the creditors and all interested in the to contest their respective claims, as they had estate;" "praying that the lands may be made done in the first case, of which this was well liable to the payment of debts, that equity may known to be the consequence. Under such be done to all concerned, according to the law circumstances the objection is entitled to noof equity." (9 Peters, 474, 475.) When he is favor, and is not sustainable as an obstacle charged with the sale of the testator's lands to our action upon the merits of the cause. for the payment of debts, it is his duty to exe! The answer sets up the dismission of a bill cute the whole of the testator's will, and in filed by the complainants in 1827, against the such a case the creditors have as good a right defendants, for the same relief as is prayed for to look to the land through him for the pay in the present bill, as a bar thereto: but no ment of their debts, as they have to look to record of such case is set out or exhibited, so the goods and chattels through him (9 Peters, that, however true the answer may be in fact, 477); and they must pursue their claims in it cannot avail in law. In this respect it is not equity, or according to the statutes of Mary responsive to the bill; it sets up distinct atfirmland subjecting real estate to the payment of ative matter of defense and bar, which the dedebts, to make their debts out of the land. fendants must prove, or it can have no effect (9 Peters, 481, 482.) These statutes are the for either purpose. À Geo. II. adopted in Maryland, and tbe Act. The statutes of limitations, and the loss of of 1785 (ch. 72, sec. 5), which is recited in time from the death of David Peter to the filThe Bank of the United States v. Ritchie, ing of the bill, are also pleaded and relied on as (8 Peters, 143), and which this court there de a bar, but we think that neither can apply to clare has been construed in that State to be an this case, which is an unexecuted trust for the enlargement of jurisdiction, and that decrees payment of debts adjudged by this court in for selling the lands of minors and lunatics, in 1836, to be unpaid in point of fact, and then the cases prescribed by it, have been treated by existing in favor of the banks and executor, the Court of Appeals as the exercise of other and the present bill was filed soon after the de equity powers. That these opinions of this cision was made. The confirmation of the aucourt are in accordance as well with the stat- ditor's *report, made in that case, is [*152 utes of Maryland and the established rules of conclusive to show the amount of such debts at equity in cases of this description, we have no that time; so is his report in this case as to their doubt; nor of their application to the present. present amount: we cannot look through these It must therefore be taken to be a settled point, reports for the evidence on which they were that a disposition by a testator of his personal made; they have passed to judgment, and have property to purposes other than the payment the sanctity of records. of his debts, with the assent of creditors, is in The remaining objections to the relief prayed itself a charge on the real estate, subjecting it for by the bill, which are founded on the printo the payment of the debts of the estate, ciples of the law or the rules of equity, are though no such charge is created by the words covered by the former decisons of this court: of the will. A trust is thereby raised which those which arise from the evidence in the devolves on the executor, who may execute it cause as to matters of fact material to our decis. by his own authority, or be compelled to do it ion, are no longer open to controversy, and we by a bill filed by the creditors, either under are clearly of opinion that the complainants the statute of 1785, or in virtue of the powers have made out their case in point of law and of a court of equity in relation to the execution fact. of trusts, as the case may be; in this case there. The decree of the Circuit Court must conwas such a trust fastened on the property in sequently be reversed. The cause is remanded 151* *controversy by implication of law, with directions to make a decree in conformity and the presumed intention of the testator, with this opinion, by ordering a sale of the which can be enforced by these complainants, property in controversy, and consistently with

the agreement of the parties filed of record, court directed the jury, if they believed the and the rules of equity as to the time of dispos- testimony therein stated, they “must " find for ing of the several parts thereof, specifically de. the defendant. vised by the will of David Peter. It is also di- Second bill of exception. The court ought rected, that the Circuit Court decree on the to have instructed the jury, that if they believed report of an auditor, or as they may think the evidence therein stated to be true, the proper, to what part or items of the account of plaintiff, being the fee-simple owner of the tenGeorge Peter a preference ought to be givenement, could recover on the implied contract in payment over the other creditors of the estate as stated in the second count of the declaration, of the testator, and make a final order thereon without any proof of an actual entry into the according to law and equity.

premises on the part of the plaintiff, or acORDER.

knowledgment on the part of the defendant This cause came on to be heard on the tran.

that he considered the plaintiff his landlord, or

without any proof that the defendant had script of the record from the Circuit Court of the United States for the District of Columbia,

actual notice of the legal and fee-simple title of

1d, the plaintiff to the premises. bolden in and for the County of Washington,

*Third bill of exception. Evidence [*154 and was argued by the counsel; on considera

ought to have been admitted to show the nototion whereof, it is now here ordered and de

riety of Lloyd's claim and title, tending, with creed by this court, that the decree of the said Circuit Court in this cause be, and the same is

| other circumstances, to bring the knowledge of

Sit home to the defendant. hereby reversed, with costs; and that this cause

| Fourth bill. Governed by same principles as be, and the same is hereby remanded to the said Circuit Court, with directions to proceed therein


On the right of the jury to weigh evidence, according to the opinion of this court, and in

"he cited Greenleaf, p. 292, 445, 446, 568; í conformity to the principles of law and justice.

Call, 161; 2 Mod., 478. Cited-2 How., 17; 1 Curt., 488; 1 Cliff., 244; 2

That an action will lie on an implied promise, Wood. & M., 134.

16 East, 104; 1 Levins, 179; 2 Campb., 18; 1 Campb., 466. Debt lies for use and occupa

tion. (6 T. R., 62; 4 Day, 228.) 153*] *JOHN LLOYD, Plaintiff in Error,

Mr. Neale, for the defendant, cited several authorities to show that interest could not be

recovered upon rent in arrear; and to prove GEORGE S. HOUGH.

that this action would not lie where there was

no privity of contract, cited 1 Esp., 57, 59, 61; Action of assumpsit does not lie in case adverse

2 Nott & McCord, 156; 3 Serg. & Rawle, 500; possession-landlord and tenant.

6 Conn. Rep., 1; Chitty on Contracts, 3d Am. The action of assumpsit for the use and occupa- ed. by Troubat, 106; 2 Tuck. Com., Book III.. tion of lands and houses, existed in Virginia antenor to the cession of the District of Columbia to the Coited States.

But this action is founded upon contract, either As to the court directing the jury they must express or implied, and will not lie where the possession has been acquired and maintained under a 327: 1 Cranch, 300: 4 Cranch. 71: 4 Leigh. diferent or adverse title, or where it was tortious and makes the holder a trespasser.

114; 1 Wash., 5, 6; 5 Rand., 145, 194. THIS case was brought up, by writ of error, Mr. Justice DANIEL delivered the opinion of I from the Circuit Court of the United States the court: for the District of Columbia, holden in and for This cause is brought before this court upon a the County of Alexandria.

writ of errror to the Circuit Court of the United The facts in the case, and bills of exceptions, States for the Distric: of Columbia. The ques. are stated in the opinion of the court, to which tions for consideration here arise upon the folthe reader is referred.

lowing statement. The plaintiff in error insti. Wr. Semmes for the plaintiff in error. tuted, in the Circuit Court for the District of Mr. Neale for the defendant.

Columbia, an action of assumpsit against the Mr. Semmes, for the plaintiff, raised the fol- defendant for the use and occupation of a house lowing points:

in the town of Alexandria. The declaration First bill of exceptions. There was error in contains two counts, the first declaring upon the opinion and instructions of the court: an express agreement between the parties for

1. Because the instruction was not given the occupation and rent, and the second countupon the whole of the evidence of the witness, ing upon an occupation by the defendant by Isaac Robbins, but upon only part, which he the permission of the plaintiff, and upon a gave upon cross-examination by the defendant promise in consideration thereof. The account in error

filed with the declaration claims an annual rent 2. Because the court allowed parol evidence of $175, from the 1st of January, 1826, to the of title to real estate to go to the jury.

1st of January, 1839, inclusive, with interest 3. Because in the opinion and instruction after the expiration of each year. Upon the they gave on this portion of the evidence, the above declaration, there was a judgment by de

fault, and a jury being impaneled upon a writ NOTE-As to what constitutes adverse possession,

of inquiry assessed damages against the defendse note to Ricard v. Williams, 7 Wheat., 59; and ant to the *full amount of the plaint. [*155 we note to Ewing v. Bennett, 11 Pet., 41.

iff's demand for rent and interest. This verTenant cannot dispute landlord's title and disdaimer by tenant. See note to Willison v. Watkins,

dict the court on motion of the defendant set Pet., 3.

I aside; annexing to its order the condition, that the defendant should not plead the statute of | written or parol demise from the plaintiff prior limitations; and issue being joined between the or subsequently to his holding under Robbins, parties on the plea of non assumpsit, a jury or prior to the institution of this suit, but that sworn to try that issue on the 10th of May, the defendant held and occupied the premises 1841, returned a verdict for the defendant; and exclusively under the original parol demise thereupon the court gave judgment against the from Robbins as trustee as aforesaid, and that plaintiff with costs.


the defendant bad no notice of any title in the At the trial instructions to the jury were plaintiff to the premises beyond what might be prayed on behalf both of plaintiff and defendpresumed from the fact then shown in evi. ant, and exceptions taken to the rulings of the dence; that a deed had been made for the court in reference to those instructions. premises from Robert I. Taylor to the plaintiff

The first bill of exceptions states that the de- and had been admitted to record; that then the fendant, having offered to prove by competent | jury must find for the defendant; which inand credible witnesses that during the entire struction the court accordingly gave, and the period of his occupation of the premises, he plaintiff excepted. had remaining thereon property sufficient to By the third bill of exceptions it is recited in answer the rent, had the plaintiff chosen to substance that the plaintiff having offered in distrain or sue for the same; he thereupon evidence a deed to him for the premises, dated prayed the court to instruct the jury, should March the 10th, 1817, from Robert I, Taylor, they believe from the evidence that there bad trustee in a deed from Jonathan Scholfield and always been upon the premises, while occupied wife, conveying the same property to said Tayby the defendant, property and effects of his lor on the 26th of June, 1814 (both which deeds sufficient to have satisfied the rent, then that are parts of this exception), and having farther the plaintiff failing or neglecting to sue or dis- proved by Isaac Robbins that from the year train for those rents, was not entitled in this 1820 to the year 1824 the defendant used and action to recover interest on the rent in arrear, occupied the premises in the declaration menwhatever it might be, from a period earlier tioned under a verbal renting from Robbins, than the date of the writ sued out in this cause. claiming as trustee of Swayne under the in But the court refused the instructions so prayed solvent law, and that said renting by Robbins for; to which refusal the defendant excepted. was without the knowledge or consent of the

In the second bill of exceptions it is stated plaintiff *(no title having been shown [*157 that the defendant, by cross-examination of by the defendant in Swayne or in Robbins Isaac Robbins, the plaintiff's witness, proved claiming as his trustee under the insolvent law), that in the spring of 1820 defendant entered and that Robbins collected the rent of the the premises as tenant, from year to year, un premises from 1820 to 1824 inclusive, claiming der à parol demise from said Robbins as trustee as lessor of the defendant, and as trustee of of John Swayne, an insolvent debtor, and at Swayne; that he had paid over a portion of the annual rent of $175, and continued to oc- the rent thus collected to A. C. Cazenove, and cupy the premises under said demise, paying a portion of it to the plaintiff, who was the the rent as it became due to Robbins, as trustee owner of the fee-simple under the deed from of Swayne, till the spring of 1824. That Rob. Taylor, of March the 10th, 1817; the witness bins, in character of trustee of Swayne; paid a not knowing whether the defendant knew of portion of the rents collected of the defendant the disposition so made of the rent collected of to A. C. Cazenove, and a part of them to the him, and that he, Robbins, had not claimed plaintiff, but without the knowledge of the rent for the premises from the defendant since defendant; that since the spring of 1824, the April, 1824, having been informed that defenddefendant had paid no rent to Robbins, assign- ant had been forbidden by the collector of the inr as a reason for refusing to pay, that the customs of the port of Alexandria, to pay rent collector of the port of Alexandria had forbid- to anyone, other than the United States, and 156*7 den such payment; that the *defendant not having shown that the defendant had, at was still the occupant of the premises of which any time, paid rent either to the collector or the plaintiff in this cause had never, to his the United States. knowledge, taken actual possession; that Rob. Whereupon, the plaintiff prayed the court bins resided in Alexandria and had so resided to instruct the jury, should they believe the for the last thirty-seven years; that the defend- evidence aforesaid, that then the plaintiff had ant also read in evidence a deed from Jonathan made out such a case as entitled him to recover Scholfield and wife, to A. C. Cazenove, bear on the second count for the use and occupaing date on the 13th of June, 1814, and duly tion of the premises, for such time as the plaintrecorded in Alexandria County, which deed iff should prove that the defendant had used (made a part of the exceptions) conveyed the and occupied the same, after the 15th day of premises occupied by the defendant. That | April, 1824, by permission of the plaintiff. upon these proofs the defendant prayed the This instruction the court also refused to give. court to instruct the jury, should they believe being of opinion that from the evidence so that the defendant originally entered, and used stated, it was not competent for the jury to and occupied the premises by a parol demise infer that such occupation by the defendant thereof from Robbins, as trustee of Swayne, in was by the permission of the plaintiff; to which 1820, and, as tenant of Robbins, paid him the opinion and refusal the plaintiff excepted. rent until 1824, after which period Robbins Fourth bill of exceptions. The plaintiff of. ceased to collect the rent for the reason above fered to prove that the claim of the plaintiff to stated, although the defendant continued to use the premises, for the rent of which this suit and occupy the premises from 1824, and still was instituted, was a subject of general notooccupied them; and that the defendant did not riety in the neighborhood about the year 1820 hold and occupy the premises either under al and since; which being objected, the counsel for the plaintiff insisted he had a right to ask and occupation has been allowed, it has been the question objected to, it being introductory founded, and would seem necessarily to be to another question designed to bring home to founded, upon contract either express or implied. the defendant knowledge of the fact that the | The very term assumpsit presupposes a conplaintiff claimed the premises used and occu-tract. Whatever, then, excludes all idea of a pied by the defendant during the time he so contract, excludes, at the same time, a remedy used and occupied them. The court refused which can spring from contract only, which to permit the question; to which refusal the affirms it, and seeks its enforcement. To plaintiff excepted.

maintain the action for use and occupation, By the fifth and last bill of exceptions it therefore, there must be established the relation appears that the plaintiff moved the follow- of landlord and tenant, a holding by the deing instructions: That if the jury should be- fendant under a knowledge of the plaintiff's 158*) lieve, *from the evidence stated in the title or claim; and under circumstances which preceding bills of exception in this cause, that amount to an acknowledgment of, or acquithere was a deed from Jonathan Scholfield and escence in, such title or claim, and an agreewife (said Scholfield being admitted to have ment or permission on the part of the plaintiff. been at the time seized of a legal estate in fee The action will not lie where the possession of the premises) to Robert I. Taylor, which has been acquired and maintained under a deed conveyed the fee in the premises, for the different or adverse title, or where it was toruse and occupation whereof this suit was tious and makes the holder a trespasser. brought, and if the jury should further believe In Birch v. Wright (1 T. R., 387), Buller, that Taylor by a deed, subsequent thereto, and Justice, declares "that the action for use and set out in the plaintiff's second bill of excep- occupation is founded in contract, and unless tions, conveyed the said premises to the plaint- this be a contract express or implied, the action if and his heirs, then, by the legal operation of could not be maintained, as was held by Lord the deed from Taylor to the plaintiff, there was Mansfield in the case cited at the bar, of Carsuch a possession transferred to the use thereby mur v. Mercer, which was tried about two years limited and conveyed, as dispensed with proof ago." The same principle is ruled in Smith v. on the part of the plaintiff, that he had actual Stewart (6 Johns. 46). In the case of Henwood entry on, and possession of, the premises; and v. Cheeseman (3 Serg. & Rawle, 500), it is said that the said deed gave to the plaintiff such a by the Supreme Court of Pennsylvania, "If legal title thereto, and possession thereof, as the defendant occupied land by consent and could not be devested by a leasing of said prem- permission of the plaintiff, the jury may preises to the defendant by Isaac Robbins, a sume a promise to pay a reasonable rent;" stranger, so as to deprive the plaintiff of his again, “the action for use and occupation is remedy against the defendant, tenant of the founded on privity of contract, not on privity premises, occupying and using them, though of estate." In 2 Nott and McCord's Reports, originally leased to him by said Robbins with 156, in the case of Ryan v. Marsh, the law is out the plaintiff's consent; which instruction thus laid down: “It was argued that a contract the court refused to give, and the plaintiff ex- might be implied, and certainly as long as the cepted.

character of the act done by the defendant was Although it has been deemed necessary to an doubtful, a contract might be implied; but sccurate description and correct understanding when it is admitted that the possession was of the points in the case, 10 state the several tortious, every characteristic of contract was bills of exception in the record, yet it is obvi. excluded. No action for use and occupation ous that the four bills sealed at the instance of will lie, when possession has been adverse and the plaintiff, and making the second, third, tortious, for such excludes the idea of a confourth, and fifth in the order of the proceed tract, which, in all cases of this action, must ings, may be embraced within the same view, be express or implied.” as they all relate to the establishment of one, *Authorities upon this point might (*160 ind the same conclusion, viz., the necessity of doubtless be multiplied. We will add two establishing an agreement either express or im- others to those already cited, viz., the cases of plied by law for the payment of rent by the Stockett v. Watkins' Administrators (2 Harr. & defendant to the plaintiff.

Johns., 326; the opinion of the court on pp. In the argument of this cause, the counsel 338, 339); and of Stoddert v. Newman (7 Harr. for the plaintiff has supposed himself called on & Johns., 251). The principles ruled in the auto anticipate an objection to the remedy by ac- thorities above referred to, appear to be strictly tion of assumpsit, for use and occupation of applicable to the case under consideration, and lands and houses, as not having existed in Vir- decisive of its fate. Upon an examination of ginia anterior to the cession of the District of the testimony, introduced by the plaintiffs, as ('olumbia to the federal government. Such set forth in his four bills of exception, it canin objection is regarded without just founda- not 'fail to be perceived that it imports throughtion, this remedy having been declared by the out no proof of a contract between the plaintiff Supreme Court of Virginia to be always a part and defendant of a holding by the latter under of the jurisprudence of that State, and having the former, of any acquiescence in, or knowl. been likewise recognized in her legislation, not edge of title in the plaintiff. or of permission by as a remedy created by statute, but as one en- him for the occupation of the defendant. So larged and favored, by making it a transitory far from establishing these requisites for sus159*) instead *of a local action. (Vide Sutton taining the plaintiff's demand, it excludes each ¥. Mandeville, 1 Mupf., 407; Eppes v. Cole, 4 and all of them. This evidence proves, beyond Hen. & Munf., 161; Sessions Acts, February, dispute, a possession and holding by the defend1816. ch. 15, sec. 6; Tate's Dig., 465, sec. 28.) ant under an agreement with Robbins, as trustee

But whenever the action of assumpsit for use of Swayne, an insolvent debtor; payment of

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