No promise, express or implied, was in fact made by the defendant to pay for his use of the water. The water-right claimed by him is also claimed by the plaintiff in interest; and the suit is brought to settle the disputed aqueduct title. The fiction of a promise implied by law contrary to the fact may be invented and used, for the sake of the remedy, to enforce the performance of a legal duty. , Sceva v. True, 53 N. H. 627; Kelley v. Davis, 49 N. H. 187. The law does not leave this disputed title *428 unsettled for want of an adequate method of procedure, but no fiction is required by adequacy or convenience of the plaintiff’s remedy. Assumpsit does not lie. Barron v. Marsh [ante 107].

Case discharged.