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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 all 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 devastavit, and that the proceeds of all his estate being thus vested in the widow, would render it necessary, independent of any express direction in the will, that recourse be had to the real estate for the payment of the debts. (10 Peters, 562, 563.) The court then decide, that the surviving executor had 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 unexecuted, and the land still remains charged with it. If the executors have paid the banks, or the banks have accepted their notes in payment of the notes of the testator, the only effect 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 also 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 to be this:

148*] *That the will created a power coupled with an interest that survives; that the surviving executor is the person authorized to exe cute that power and fulfil that trust; that the debt due the banks has not been extinguished, or the estate in any way discharged from the payment. That the executors are not chargeable with negligence or such misapplication of the personal estate as to make them responsible for the payment of these debts; and that from the auditor's report on the accounts of the executors, exhibited to, and allowed by him, there has at all times been, and now is, a considerable balance in favor of the executors against the estate. The court then refer to the exceptions taken to the auditor's report, and declare them to have been properly overruled by the court below, and proceed to render their decree as before referred to. (10 Peters, 569, 570.)

So far, then, as related to the construction of the will, the disposition of the personal 11 L. ed. U. S., Book 11.

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 contreversy 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 to consider the questions appropriate to this cause, a reference to the case of Fenwick v. Chapman (9 Peters, 466) will be useful, in order to ascertain what principles were there laid down and are applicable to the present controversy. Adopting the general rule that the personal estate of a testator shall in all cases be primarily applied to the discharge of his personal debts or general legacies, unless he by express words or manifest intention exempt it, the court thus qualify the rule; where the testator's intention clearly appears that a legacy shall be paid at all events, the real estate is made liable on a deficiency of personal assets. So where without any assistance from the will, the nature of the thing to be done may clearly show the intention to charge the real estate with a debt; as, where the thing to be done cannot be partially performed by the executor, without defeating the instruction which directs it, and the thing itself. On this principle the court holds that the manumission of slaves

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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-examinaion 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 forbid156*] 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, bear ing 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

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 insolvent 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 plaintiff 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 of fered 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 proceedings, 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.

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 tortions 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."

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