CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT FOR THE COUNTIES OF SUFFOLK AND NANTUCKET, PRESENT. HON LEMUEL SHAW, CHIEF JUSTICE, HON. SAMUEL S. WILDE, JUSTICES. The City of BOSTON versus AMOS BINNEY Assumpsit for use and occupation will lie only where there is a contract, express of implied; and the implication of a contract arising from the defendant's having been in the occupation of land owned by the plaintiff, may be rebutted by evidence that the defendant claimed to hold under an adverse title. If a tenant at will or sufferance renounces the title of his landlord, assumpsit cannot be maintained for the occupation subsequent to the renunciation. Where the defendant bound himself under a penalty, to convey land to the plaintiffs at such sum as arbitrators should award, and deposited a deed with the arbitrators to be delivered to the plaintiffs on the publishing of the award, and agreed to become tenant to the plaintiffs until August 1, at such rent as the arbitratora should award, and the arbitrators made an award and delivered the deed to the plaintiffs, who thereupon tendered the purchase money to the defendant, but the defendant refused to abide by the award, and tendered the penalty of his bond, and about the first of August consented that the tenants then in possession should remain, upon condition of their paying him the rent as they had theretofore done, it was held, that there was no implied contract on the part of the defendant to pay the plaintiffs for the use and occupation of the land after the first of August. Held also, that in an action of assumpsit by the plaintiffs against the defendants for such use and occupation, the title to the land, which was claimed by both parties, could not be tried. Boston บ. Binney. ASSUMPSIT for the use and occupation of a parcel of land in Boston, from August 1, 1824, to May 5, 1825. On the trial, before Wilde J., it was proved, that on February 25, 1824, the defendant, being the owner of the land, entered into an agreement with the plaintiffs, in which it is stated that the plaintiffs are disposed to purchase, and the defendant is disposed to sell the land for a fair compensation in money, and by which arbitrators therein named are authorized. to award what sum of money the plaintiffs shall pay to the defendant for all his estate in the land; and it is recited, that the more effectually to carry the agreement into effect, the defendant has executed a deed of conveyance of the land to the plaintiffs, to be delivered with the award to the plaintiffs, and that for that purpose he has deposited the deed with the arbitrators; and the plaintiffs covenant to pay the defendant the sum which shall be awarded, within thirty days after the award shall be made and published; and it is agreed, that the buildings on the land shall belong to the defendant, and that they shall be removed by him by the 1st of August then next; and that the arbitrators may award what rent shall be paid by him for occupying the land until the buildings shall be removed; and for the faithful performance of the award the parties bind themselves each to the other in the penal sum of $10,000. Annexed to the submission is a writing of the same date not under seal, but signed by the defendant and Josiah Quincy, (who was then mayor of Boston,) as follows:-"It is agreed by the parties to the annexed instrument, that posses sion shall be given on the payment of the money awarded, and that Amos Binney shall become tenant to the city, after the delivery of the deed by the referees, and that the referees shall award what sum he shall pay for the use of said land, as tenant of the city, during the term he may hold the same afterwards, until the removal of the buildings, which shall not be delayed beyond the first day of August next." On May 21, 1824, the arbitrators made and published their award, and delivered it to the plaintiffs, together with the defendant's deed. The arbitrators awarded, that the plaintiffs should pay to the defendant $9000 for the land, and that, for |