Ramirez

Heydenfeldt, J., concurred.

This was originally an action of assumpsit to recover rent for the occupation of premises in the city of Marysville. The complaint is in the usual form of a declaration in indebitatus assumpsit.

On the trial, the plaintiff introduced the record Court of Yuba County, showing a recovery in ejectment against defendant, and after proving the monthly value of the J the case. The defendant moved for a nonsuit, and the Court directed the jury to find a special verdict reserving the question”

From the plaintiff's own showing it is apparent that he was not entitled to recover in this form of action. To enable a party to recover rent eo nomine he must show that the defendant’s possession was by virtue of some express or implied agreement; and no action will lie where the possession was adverse and tortuous, for such possession excludes all idea of contract. See O'Conner v. Corbitt, 3 Cal., 370 .

Some nine months after the trial, the Court set aside the verdict of *224 the jury, and allowed the plaintiff to amend his complaint, on which judgment was afterwards rendered in his favor.

The amended complaint founds in tort, and is in fact an action of trespass…