former suit being a bar, the record does not show anything but the answer, or whether it was dismissed without prejudice." Mr. Justice BALDWIN delivered the opinion of the court: A summary of the points decided, and principles settled in the former case between these parties, will save much time in the investigation of those which are involved in this. After taking a condensed view of the will of David Peter, the court declare that he had unquestionable right, so far as respected his children, to charge the payment of his debts upon any part of his estate he might think proper, and that none but a creditor could control his will in that respect; that he had constituted his widow the trustee of the proceeds of ali his estate, for the maintenance and education of his children; and invested her with unlimited discretion in this respect, so far as the proceeds of his estate would go. Whereby the Surviving executor is not accountable for anything so applied by her, even if she would be chargeable with a devastarit, and that the proceeds of all his estate being thus vested in the widow, would render it necessary, independens of any express direction in the will, that recourse be had to the real estate for the pay meat of the debts. (10 Peters, 562, 563.) The court then decide, that the surviving executor hal power to sell, and that it was impossible to draw any other conclusion than that it was the intention of the testator that the sale should be so made. (10 Peters, 566.) On the inquiry whether there is any subsisting debt due from the estate of David Peter to the banks, the court say, there is no pretense that they have been paid in fact, and if not, the trust remains executed, and the land still remains charged with it. If the executors have paid the banks, or the banks have accepted their notes in pay ent of the notes of the testator, the only effeet is that the executors became the creditors instead of the banks, and may resort to the trust fund to satisfy the debt. But the court a) say, that under the circumstances of the case there is no ground for considering the debt of the banks to be extinguished, and they then proceed to state the result of their consideration property, the charge of existing debts on the real estate, the power of the executor, the existence of a trust, and their duty to execute it by a sale of the property charged by the will, the decision of the court has settled the rules and principles on which the present controversy must be determined if they are applicable; it was made on great consideration, founded on authority, and nothing which has been urged in the argument of this case has caused us to entertain the least doubt of its entire conformity to the well established law of equity. So far as the evidence and facts of that case were considered and adjudicated, the decree of this court is final and conclusive; the parties and the subjects of controversy between them were the same as are now before us; negligence and misapplication of assets were charged on the executors, the existence of debts to them or the banks was denied by the then complainants, and now defendants, and both facts adjudged and decided adversely to them; and the auditor's report was confirmed, whereby every fact it contained became established and binding on the parties in any future controversy, as to any matter thus adjudicated. In Hopkins v. Lee, this court state the settled law of all courts to be, that, as a general rule, a fact which has been directly tried and decided by a court of competent jurisdiction, cannot be contested again between the same parties in the same or any other court. Hence a verdict and judgment of a court of record, or a *decree in chancery, although not bind- [*149 ing on strangers, puts an end to all further controversy concerning the points thus decided between the parties to such suit. In this, there is, and ought to be, no difference between a verdict and judgment in a court of common law and a decree of a court of equity. They both stand on the same footing. (6 Wheat., 113, 114; S. P., 1 Wheat., 355; 12 Peters, 492.) Whatever, therefore, our opinion might now be as to the facts adjudicated in the former case, the judicial power is incompetent to revise the evidence on which the decree was rendered, on any ground now set up in the answer of the defendants, or apparent on the present record, and they must be taken to be beyond all controversy in this or any future case between the parties. Before proceeding 148*] *That the will created a power coup to consider the questions appropriate to this led 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 pushed, 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 4 chargeable with negligence or such misap- be primarily applied to the discharge of his ication 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, 6. that from the auditor's report on the ac: the court thus qualify the rule, where the tes ounts of the executors, exhibited to, and tator's intention clearly appears that a legacy awed by him, there has at all times been, shall be paid at all events, the real estate is the executors against the estate. to be this: The where without assistance from the auditor's report, and declare them to have been show the intention to charge the real estate saditorer to the exceptions taken to the the nature of the thing to be done may clearly proceed to render their decree as before re- cannot be partially performed by the executor, properly overruled by the court below, and with a debt; as, where the thing to be done 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. pursuant to the directions of a will under the law of Maryland (which is the law of the eastern part of this district) operates as a specific legacy to the slaves, and to charge the real estate with the payment of the debts of the testator, even though he may have, at the time of his death, no other personal property than slaves. (9 Peters, 471, 473.) That the creditor may be carried into a court of equity, or voluntarily resort to it to obtain his debt, either from the lands or the personalty, when the testator leaves it doubtful from what fund his debts are to be paid; that lands devised for the payment of debts, or which have become chargeable by implication, constitute a fund 150*] *for the payment of debts, and an ample and plain remedy is admitted to exist in the law of Maryland, so to apply them. "The will is the executor's law, and he is no more than the testator's representative in all things lawful in the will. A special legacy of all the personal property is a law to him;" if there is an insufficiency of "personal assets to pay debts, it is the executor's duty to file a bill against the creditors and all interested in the estate;" "praying that the lands may be made liable to the payment of debts, that equity may be done to all concerned, according to the law of equity.' (9 Peters, 474, 475.) When he is charged with the sale of the testator's lands for the payment of debts, it is his duty to execute the whole of the testator's will, and in such a case the creditors have as good a right to look to the land through him for the pay ment of their debts, as they have to look to the goods and chattels through him (9 Peters, 477); and they must pursue their claims in equity, or according to the statutes of Mary land subjecting real estate to the payment of debts, to make their debts out of the land. (9 Peters, 481, 482.) These statutes are the 4 Geo. II. adopted in Maryland, and the Act of 1785 (ch. 72, sec. 5), which is recited in The Bank of the United States v. Ritchie, (8 Peters, 143), and which this court there declare has been construed in that State to be an enlargement of jurisdiction, and that decrees for selling the lands of minors and lunatics, in the cases prescribed by it, have been treated by the Court of Appeals as the exercise of other equity powers. That these opinions of this court are in accordance as well with the statutes of Maryland and the established rules of equity in cases of this description, we have no doubt; nor of their application to the present. It must therefore be taken to be a settled point, that a disposition by a testator of his personal property to purposes other than the payment of his debts, with the assent of creditors, is in itself a charge on the real estate, subjecting it to the payment of the debts of the estate, though no such charge is created by the words of the will. A trust is thereby raised which devolves on the executor, who may execute it by his own authority, or be compelled to do it by a bill filed by the creditors, either under the statute of 1785, or in virtue of the powers of a court of equity in relation to the execution of trusts, as the case may be; in this case there was such a trust fastened on the property in 151*] *controversy by implication of law, and the presumed intention of the testator, which can be enforced by these complainants, unless some valid objection has been made out by the respondents. It has been contended that the frame of the bill is too defective to justify any action upon it, for the want of necessary averments, but when we take it in connection with the former cause to which it refers, the agreement of the parties on file, and the answer of the defendants, we think that a satisfactory answer is at hand. The object of the bill is clearly stated; such averments are set forth as on its face shows some equity which requires an answer; informal as they may be, they would stand the test of a demurrer, especially with the aid of the agreement, by which it appears that the defendants fully understood the nature of the plaintiff's case, the object sought, and the evidence on which they would rely. The answer is full to every matter of fact or law which could be averred in the best drawn bill; there has been no allegation of surprise, or any want of notice of the grounds on which the plaintiff rested his case, and the parties went to the hearing on the bill as it stood, fully prepared to contest their respective claims, as they had done in the first case, of which this was well known to be the consequence. Under such circumstances the objection is entitled to no favor, and is not sustainable as an obstacle to our action upon the merits of the cause. The answer sets up the dismission of a bill filed by the complainants in 1827, against the defendants, for the same relief as is prayed for in the present bill, as a bar thereto; but no record of such case is set out or exhibited, sothat, however true the answer may be in fact, it cannot avail in law. In this respect it is not responsive to the bill; it sets up distinct affirmative matter of defense and bar, which the defendants must prove, or it can have no effect for either purpose. The statutes of limitations, and the loss of time from the death of David Peter to the filing of the bill, are also pleaded and relied on as a bar, but we think that neither can apply to this case, which is an unexecuted trust for the payment of debts adjudged by this court in 1836, to be unpaid in point of fact, and then existing in favor of the banks and executor, and the present bill was filed soon after the decision was made. The confirmation of the auditor's *report, made in that case, is [*152 conclusive to show the amount of such debts at that time; so is his report in this case as to their present amount: we cannot look through these reports for the evidence on which they were made; they have passed to judgment, and have the sanctity of records. The remaining objections to the relief prayed for by the bill, which are founded on the principles of the law or the rules of equity, are covered by the former decisons of this court; those which arise from the evidence in the cause as to matters of fact material to our decis ion, are no longer open to controversy, and we are clearly of opinion that the complainants have made out their case in point of law and fact. The decree of the Circuit Court must consequently be reversed. The cause is remanded with directions to make a decree in conformity with this opinion, by ordering a sale of the property in controversy, and consistently with the agreement of the parties filed of record, and the rules of equity as to the time of disposing of the several parts thereof, specifically devised by the will of David Peter. It is also directed, that the Circuit Court decree on the report of an auditor, or as they may think proper, to what part or items of the account of George Peter a preference ought to be given in payment over the other creditors of the estate of the testator, and make a final order thereon according to law and equity. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by the counsel; on consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to proceed therein according to the opinion of this court, and in conformity to the principles of law and justice. Cited How., 17; 1 Curt., 488; 1 Cliff., 244; 2 Wood. & M., 134. 153*] *JOHN LLOYD, Plaintiff in Error, v. GEORGE S. HOUGH. Action of assumpsit does not lie in case adverse possession landlord and tenant. The action of assumpsit for the use and occupation of lands and houses, existed in Virginia anterior to the cession of the District of Columbia to the Cnited States. But this action is founded upon contract, either express or implied, and will not lie where the possession has been acquired and maintained under a different or adverse title, or where it was tortious and makes the holder a trespasser. court directed the jury, if they believed the testimony therein stated, they "must" find for the defendant. Second bill of exception. The court ought to have instructed the jury, that if they believed the evidence therein stated to be true, the plaintiff, being the fee-simple owner of the tenement, could recover on the implied contract as stated in the second count of the declaration, without any proof of an actual entry into the premises on the part of the plaintiff, or acknowledgment on the part of the defendant that he considered the plaintiff his landlord, or without any proof that the defendant had actual notice of the legal and fee-simple title of the plaintiff to the premises. THIS The facts in the case, and bills of exceptions, Mr. Semmes for the plaintiff in error. lowing points: *Third bill of exception. Evidence [*154 ought to have been admitted to show the notoriety of Lloyd's claim and title, tending, with other circumstances, to bring the knowledge of it home to the defendant. Fourth bill. Governed by same principles as second. he cited Greenleaf, p. 292, 445, 446, 568; 1 On the right of the jury to weigh evidence, Call, 161; 2 Mod., 478. That an action will lie on an implied promise, 16 East, 104; 1 Levins, 179; 2 Campb., 18; 1 Campb., 466. Debt lies for use and occupation. (6 T. R., 62; 4 Day, 228.) Mr. Neale, for the defendant, cited several authorities to show that interest could not be recovered upon rent in arrear; and to prove that this action would not lie where there was 2 Nott & McCord, 156; 3 Serg. & Rawle, 500; no privity of contract, cited 1 Esp., 57, 59, 61; 6 Conn. Rep., 1; Chitty on Contracts, 3d Am. ed. by Troubat, 106; 2 Tuck. Com., Book III., ch. 1, p. 19, 20; 2 Campb., 11, 12; 1 Campb., 466; Buller N. P., 139. As to the court directing the jury they must find for the defendant, 5 Peters, 197; 14 Peters, 327; 1 Cranch, 300; 4 Cranch, 71; 4 Leigh, 114; 1 Wash., 5, 6; 5 Rand., 145, 194. Mr. Justice DANIEL delivered the opinion of the court: This cause is brought before this court upon a writ of errror to the Circuit Court of the United States for the District of Columbia. The questions for consideration here arise upon the following statement. The plaintiff in error instituted, in the Circuit Court for the District of Columbia, an action of assumpsit against the defendant for the use and occupation of a house contains two counts, the first declaring upon in the town of Alexandria. The declaration First bill of exceptions. There was error in 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 fave 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 3. Because in the opinion and instruction after the expiration of each year. Upon the 1st of January, 1839. inclusive, with interest of title to real estate to go to the jury. they see note to Ricard v. Williams, 7 Wheat., 59; and ant to the *full amount of the plaint- [*155 NOTE-As to what constitutes adverse possession, of inquiry assessed damages against the defend fault, and a jury being impaneled upon a writ see note to Ewing v. Bennett, 11 Pet., 41. iff's demand for rent and interest. This ver Tenant cannot dispute landlord's title and dis-dict the court on motion of the defendant set elaimer by tenant. See note to Willison v. Watkins, aside; annexing to its order the condition, that 3 Pet., 43 HOWARD 1. the defendant should not plead the statute of limitations; and issue being joined between the parties on the plea of non assumpsit, 'a jury sworn to try that issue on the 10th of May, 1841, returned a verdict for the defendant; and thereupon the court gave judgment against the plaintiff with costs. At the trial instructions to the jury were prayed on behalf both of plaintiff and defendant, and exceptions taken to the rulings of the court in reference to those instructions. The first bill of exceptions states that the defendant, having offered to prove by competent and credible witnesses that during the entire period of his occupation of the premises, he had remaining thereon property sufficient to answer the rent, had the plaintiff chosen to distrain or sue for the same; he thereupon prayed the court to instruct the jury, should they believe from the evidence that there had always been upon the premises, while occupied by the defendant, property and effects of his sufficient to have satisfied the rent, then that the plaintiff failing or neglecting to sue or distrain for those rents, was not entitled in this action to recover interest on the rent in arrear, whatever it might be, from a period earlier than the date of the writ sued out in this cause. But the court refused the instructions so prayed for; to which refusal the defendant excepted. In the second bill of exceptions it is stated that the defendant, by cross-examination of Isaac Robbins, the plaintiff's witness, proved that in the spring of 1820 defendant entered the premises as tenant, from year to year, under a parol demise from said Robbins as trustee of John Swayne, an insolvent debtor, and at the annual rent of $175, and continued to occupy the premises under said demise, paying the rent as it became due to Robbins, as trustee of Swayne, till the spring of 1824. That Robbins, in character of trustee of Swayne; paid a portion of the rents collected of the defendant to A. C. Cazenove, and a part of them to the plaintiff, but without the knowledge of the defendant; that since the spring of 1824, the defendant had paid no rent to Robbins, assigning as a reason for refusing to pay, that the collector of the port of Alexandria had forbid 156*] den such payment; that the defendant was still the occupant of the premises of which the plaintiff in this cause had never, to his knowledge, taken actual possession; that Robbins resided in Alexandria and had so resided for the last thirty-seven years; that the defendant also read in evidence a deed from Jonathan Scholfield and wife, to A. C. Cazenove, bearing date on the 13th of June, 1814, and duly recorded in Alexandria County, which deed (made a part of the exceptions) conveyed the premises occupied by the defendant. That upon these proofs the defendant prayed the court to instruct the jury, should they believe that the defendant originally entered, and used and occupied the premises by a parol demise thereof from Robbins, as trustee of Swayne, in 1820, and, as tenant of Robbins, paid him the rent until 1824, after which period Robbins ceased to collect the rent for the reason above stated, although the defendant continued to use and occupy the premises from 1824, and still occupied them; and that the defendant did not hold and occupy the premises either under a written or parol demise from the plaintiff prior or subsequently to his holding under Robbins, or prior to the institution of this suit, but that the defendant held and occupied the premises exclusively under the original parol demise from Robbins as trustee as aforesaid, and that the defendant had no notice of any title in the plaintiff to the premises beyond what might be presumed from the fact then shown in evidence; that a deed had been made for the premises from Robert I. Taylor to the plaintiff and had been admitted to record; that then the jury must find for the defendant; which instruction the court accordingly gave, and the plaintiff excepted. By the third bill of exceptions it is recited in substance that the plaintiff having offered in evidence a deed to him for the premises, dated March the 10th, 1817, from Robert I. Taylor, trustee in a deed from Jonathan Scholfield and wife, conveying the same property to said Taylor on the 26th of June, 1814 (both which deeds are parts of this exception), and having farther proved by Isaac Robbins that from the year 1820 to the year 1824 the defendant used and occupied the premises in the declaration mentioned under a verbal renting from Robbins, claiming as trustee of Swayne under the in solvent law, and that said renting by Robbins was without the knowledge or consent of the plaintiff *(no title having been shown [*157 by the defendant in Swayne or in Robbins claiming as his trustee under the insolvent law), and that Robbins collected the rent of the premises from 1820 to 1824 inclusive, claiming as lessor of the defendant, and as trustee of Swayne; that he had paid over a portion of the rent thus collected to A. C. Cazenove, and a portion of it to the plaintiff, who was the owner of the fee-simple under the deed from Taylor, of March the 10th, 1817; the witness not knowing whether the defendant knew of the disposition so made of the rent collected of him, and that he, Robbins, had not claimed rent for the premises from the defendant since April, 1824, having been informed that defendant had been forbidden by the collector of the customs of the port of Alexandria, to pay rent to anyone, other than the United States, and not having shown that the defendant had, at any time, paid rent either to the collector or the United States. Whereupon, the plaintiff prayed the court to instruct the jury, should they believe the evidence aforesaid, that then the plaintiff had made out such a case as entitled him to recover on the second count for the use and occupation of the premises, for such time as the plaint iff should prove that the defendant had used and occupied the same, after the 15th day of April, 1824, by permission of the plaintiff. This instruction the court also refused to give, being of opinion that from the evidence so stated, it was not competent for the jury to infer that such occupation by the defendant was by the permission of the plaintiff; to which opinion and refusal the plaintiff excepted. Fourth bill of exceptions. The plaintiff offered to prove that the claim of the plaintiff to the premises, for the rent of which this suit was instituted, was a subject of general notoriety in the neighborhood about the year 1820 and since; which being objected, the counsel for the plaintiff insisted he had a right to ask the question objected to, it being introductory to another question designed to bring home to the defendant knowledge of the fact that the plaintiff claimed the premises used and occupied by the defendant during the time he so used and occupied them. The court refused to permit the question; to which refusal the plaintiff excepted. By the fifth and last bill of exceptions it appears that the plaintiff moved the following instructions: That if the jury should be158*] lieve, *from the evidence stated in the preceding bills of exception in this cause, that there was a deed from Jonathan Scholfield and wife (said Scholfield being admitted to have been at the time seized of a legal estate in fee of the premises) to Robert I. Taylor, which deed conveyed the fee in the premises, for the use and occupation whereof this suit was brought, and if the jury should further believe that Taylor by a deed, subsequent thereto, and set out in the plaintiff's second bill of exceptions, conveyed the said premises to the plaintiff and his heirs, then, by the legal operation of the deed from Taylor to the plaintiff, there was such a possession transferred to the use thereby limited and conveyed, as dispensed with proof on the part of the plaintiff, that he had actual entry on, and possession of, the premises; and that the said deed gave to the plaintiff such a legal title thereto, and possession thereof, as could not be devested by a leasing of said premises to the defendant by Isaac Robbins, a stranger, so as to deprive the plaintiff of his remedy against the defendant, tenant of the premises, occupying and using them, though originally leased to him by said Robbins without the plaintiff's consent; which instruction the court refused to give, and the plaintiff excepted. Although it has been deemed necessary to an accurate description and correct understanding of the points in the case, to state the several bills of exception in the record, yet it is obvious that the four bills sealed at the instance of the plaintiff, and making the second, third, fourth, and fifth in the order of the proceed ings, may be embraced within the same view, as they all relate to the establishment of one and the same conclusion, viz., the necessity of establishing an agreement either express or implied by law for the payment of rent by the defendant to the plaintiff. In the argument of this cause, the counsel for the plaintiff has supposed himself called on to anticipate an objection to the remedy by action of assumpsit, for use and occupation of lands and houses, as not having existed in Virginia anterior to the cession of the District of Columbia to the federal government. Such an objection is regarded without just foundation, this remedy having been declared by the Supreme Court of Virginia to be always a part of the jurisprudence of that State, and having been likewise recognized in her legislation, not as a remedy created by statute, but as one en larged and favored, by making it a transitory 159*] instead of a local action. (Vide Sutton Mandeville, 1 Munf., 407: Eppes v. Cole, 4 Hen. & Munf., 161; Sessions Acts, February, 1816, ch. 15, sec. 6; Tate's Dig., 465, sec. 28.) But whenever the action of assumpsit for use To and occupation has been allowed, it has been founded, and would seem necessarily to be founded, upon contract either express or implied. The very term assumpsit presupposes a contract. Whatever, then, excludes all idea of a contract, excludes, at the same time, a remedy which can spring from contract only, which affirms it, and seeks its enforcement. maintain the action for use and occupation, therefore, there must be established the relation of landlord and tenant, a holding by the defendant under a knowledge of the plaintiff's title or claim; and under circumstances which amount to an acknowledgment of, or acquiescence in, such title or claim, and an agreement or permission on the part of the plaintiff. The action will not lie where the possession has been acquired and maintained under a different or adverse title, or where it was tortious and makes the holder a trespasser. In Birch v. Wright (1 T. R., 387), Buller, Justice, declares "that the action for use and occupation is founded in contract, and unless this be a contract express or implied, the action could not be maintained, as was held by Lord Mansfield in the case cited at the bar, of Carmur v. Mercer, which was tried about two years ago." The same principle is ruled in Smith v. Stewart (6 Johns. 46). In the case of Henwood v. Cheeseman (3 Serg. & Rawle, 500), it is said by the Supreme Court of Pennsylvania, "If the defendant occupied land by consent and permission of the plaintiff, the jury may presume a promise to pay a reasonable rent;" again, "the action for use and occupation is founded on privity of contract, not on privity of estate." In 2 Nott and McCord's Reports, 156, in the case of Ryan v. Marsh, the law is thus laid down: "It was argued that a contract might be implied, and certainly as long as the character of the act done by the defendant was doubtful, a contract might be implied; but when it is admitted that the possession was tortious, every characteristic of contract was excluded. No action for use and occupation will lie, when possession has been adverse and tortious, for such excludes the idea of a contract, which, in all cases of this action, must be express or implied." *Authorities upon this point might [*160 doubtless be multiplied. We will add two others to those already cited, viz., the cases of Stockett v. Watkins' Administrators (2 Harr. & Johns.. 326; the opinion of the court on pp. 338, 339); and of Stoddert v. Newman (7 Harr. & Johns., 251). The principles ruled in the authorities above referred to, appear to be strictly applicable to the case under consideration, and decisive of its fate. Upon an examination of the testimony, introduced by the plaintiffs, as set forth in his four bills of exception, it cannot fail to be perceived that it imports throughout no proof of a contract between the plaintiff and defendant of a holding by the latter under the former, of any acquiescence in, or knowledge of title in the plaintiff, or of permission by him for the occupation of the defendant. So far from establishing these requisites for sustaining the plaintiff's demand, it excludes each and all of them. This evidence proves, beyond dispute, a possession and holding by the defendant under an agreement with Robbins, as trustee of Swayne, an insolvent debtor; payment of |