It is clear that these equitable plaintiffs can have no remedy in the name of M’Clurken,' which M’Clurken could hot have had himself. In what relation, then, did he stand to Blume, the defendant? He had demised the premises, by a sealed lease, to Gerding for a term unexpired; and Gerding had assigned it to Blume. M’Clurken’s remedy would have been covenant or debt, against Gerding, on the privity of contract; and against Blume, debt or covenant on the privity of estate. Such is the rule laid down in Walker’s Case, 3 Rep. 22 b, and recognized in many modern cases. There could, therefore, be no implication of a promise to M’Clurken, who had leased the estate by specialty to Gerding, expressum facit cessare taciturn, and Blume was in under the same lease. Assumpsit for use and occupation is essentially an action ex contractu; and as there was no room for the implication of a promise in this instance, the action ought not to have been sustained.
Judgment reversed.