[After the foregoing statement of the case.] The ruling was right. R. L. c. 129, § 3, providing that tenants at sufferance in the possession of land shall be liable to pay rent therefor for such time as they may occupy or detain the same does not apply where the tenant has not occupied with the assent express or implied of the plaintiff or one under whom the plaintiff claims. That was decided in Merrill v. Bullock, 105 Mass. 486, to be the true construction of the statute. That construction has been acquiesced in by the Legislature for thirty-five years, and has been followed in later cases. See Central Mills Co. v. Hart, 124 Mass. 123; Kirchgassner v. Rodick, 170 Mass. 543.

Exceptions overruled.