Lloyd v. Hough. stead of a local action. Vid. Sutton v. Mandeville, 1 Munf. 407; Eppes v. Cole, 4 Hen. and Munf. 161; Sessions Acts, February, 1816, c. 15, s. 6; Tate's Dig. 465, s. 28. But whenever the action of assumpsit for use 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. To 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. and 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." Lloyd v. Hough. Authorities upon this point might doubtless be multiplied. We will add two others to those already cited, viz. the cases of Stockett v. Watkins's administrators, 2 Harr. and Johns. 326; the opinion of the court on pp. 338, 339; and of Stoddert v. Newman, 7 Harr. and 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 rent to this trustee in pursuance of such agreement, until a claim was interposed on behalf of the United States, as creditors of the insolvent debtor; it further proves a failure or forbearance by the plaintiff to assert any interest or right to the subject, anterior to the year 1839, about the time of the institution of the plaintiff's aetion, and so far as a negative is capable of proof, a total ignorance on the part of the defendant of any right of the plaintiff, either to the rents or to the subject from which they were to issue. Upon the above view of the evidence as disclosed in the second, third, fourth, and fifth bills of exceptions, we hold the opinion of the Circuit Court to be correct; it is therefore affirmed. 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 Alexandria, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be and the same is hereby affirmed, with costs. CHARLES MCKNIGHT, APPELLANT, v. LAWRENCE B. TAYLOR, TRUSTEE, &c. There must be conscience, good faith, and reasonable diligence, to call into action the powers of a court of equity. In matters of account, where they are not barred by the act of limitations, courts of equity refuse to interfere, after a considerable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice, when the original transactions have become obscure by time, and the evidence may be lost. THIS was an appeal from the equity side of the Circuit Court of the United States for the District of Columbia, holden in and for the county of Alexandria.. The facts in the case are fully stated in the opinion of the court, to which the reader is referred. Semmes and Jones, for the appellant. Semmes, for the appellant, contended that the decree of the court below was erroneous, and should be reversed for the following, among other reasons. 1. Because there is no equity in the bill or supplemental bill, and no case made for the interference of the court. 2. Because it decrees debts to be paid which the record shows has already been paid. 3. Because it decrees the debt mentioned in the schedule as that due to Thomas Janney and Co., to be paid to John Lloyd, who claims by virtue of various assignments named in said decree. 4. Because it did not allow the appellant, a lien on or pro rata dividend out of the trust fund for the debts paid off, and assigned for his use, as shown in the record. 5. Because the court should have presumed payment of the debts, in the absence of all evidence showing them still due, after the great lapse of time; or, if the court believed them still unpaid, they should have presumed an abandonment of the claims by the creditors from their laches and the lapse of time; and therefore erred in decreeing relief to claimants whose demands were stale, and who had knowingly slept upon their rights. McKnight v. Taylor. 6. Because the court should, for like reason, have presumed a performance of the covenant contained in the deed of trust executed between the appellant and Robert I. Taylor, for payment of the schedule debts-a release of the same, or that it was abandoned or extinguished. 7. Because, if the said covenant was any part of the grounds or foundation of their decree, the court erred in deereeing upon it in favour of parties between whom and the covenantor there was no privity; or, if there was any such privity, then, because the covenant was a personal matter, disconnected from the trust, and upon which the remedy was by action at law; and more especially as there was no prayer in the bill for an enforcement of the covenant. 8. Because, if it was right under the circumstances to give any relief at all, the court should have decreed only the principal of the debts found due, and should, on account of the laches, have refused to allow any interest, on the principle on which the account of profits was denied in Acherly v. Roe, 5 Ves. 565; or, upon the principle of Pickering v. Lord Stamford, 2 Ves. jr. 272, 581, interest should have been allowed only from the filing of the bill; the plaintiffs having gone into equity for general relief, and not for an enforcement of the covenant in the deed, on which there was full remedy at law. On the subject of the lapse of time, he cited 5 Leigh, 350; 6 Wheat. 481; 4 Johns. 1; 9 Peters, 416; 5 Leigh, 381; 7 Johns: 556; 2 Nott and McCord, 360; 9 Leigh, 393; 2 Baldwin, 477; Cowper, 109. Bradley, for appellee. As to lapse of time: there was a covenant between McKnight and Taylor, the consideration of which was the forbearance of creditors to sue, and they did forbear. 3 Swanston, 417. As to the presumption of payment: it is not well settled whether it is a matter of fact or law. Hughes v. Edwards, 9 Wheat.; same case in Cond. Rep. 654, 655; Elmendorf v. Taylor, 10 Wheat. 152; same case in Cond. Rep. 55, 56. See also, 10 Leigh, 284. Jones, for appellant. A decree must follow the equity of the bill, but the court below has not done it. Hellary v. Waller, 12 Vesey, settles the rule McKnight v. Taylor. that a court of equity will put itself in the position of a court and jury. The trustee, here, had full legal power to sell without coming to equity, and courts act on different principles when called upon to lend their aid, than when acting regularly. Ambler, 645. The creditors, generally, do not answer or take any notice, but appear to have abandoned the claim. Only one acts. This circumstance ought to be coupled with the staleness of the demand. Mr. Chief Justice TANEY delivered the opinion of the court. This is an appeal from the decree of the Circuit Court of the District of Columbia, for the county of Alexandria, sitting in chancery. It appears from the record, that the appellant Charles McKnight, by deed bearing date the 29th day of September, 1813, conveyed to Robert I. Taylor, certain real property described in the deed, situate in the town of Alexandria, upon trust, to permit the appellant to occupy the same, and to receive the rents and profits without account, until a sale should become necessary, under the terms of the deed; and if he, the said Charles McKnight, should not on the 1st day of April, 1818, have paid the several creditors named in a schedule, annexed to the deed, the debts therein mentioned with interest, then the said Robert I. Taylor should, on notice of such default from any one of the said creditors or his representatives, proceed to sell the said property, or so much thereof as might be necessary, for cash at public auction, after giving three weeks notice of the time and place of sale, by advertisement in any paper published in Alexandria, and after defraying the reasonable expenses of sale, discharge the aforesaid debts with all interest due thereon. The bill in this case was filed in August, 1837, by Robert I. Taylor, the trustee above mentioned, and after setting forth the deed of trust, proceeds to state that Thomas Janney and Co. (who are named as creditors in the schedule) had assigned the debt due to them, to Joseph Janney in trust for the payment of their creditors; and that Joseph Janney, under a provision in the deed of assignment, afterwards transferred the same to George Johnson, in trust for the same purpose; and that the complainant had been required by the said George Johnson, and, by certain |