The opinion of the court was delivered by

In one of the counts, the plaintiff claims for use *234and occupation, and in the others, to recover a stipulated rent upon an alleged lease. The parties, in contemplation of, a written lease, had adjusted the terms; but before the time appointed for executing the instrument arrived, the defendant gave notice that he would not take the premises. An arrangement of terms, in contemplation of a written contract, is not a perfect agreement upon which an action can be maintained. To produce this effect, it must be shown, by the acts or declarations of the parties, that they intended the agreement to be operative before execution, and without regard to the writing. This principle is peculiarly applicable to the case before us, where the lease proposed would not have been valid without writing. The action is not brought on an agreement to sign a written lease, but upon an actual lease, upon terms set forth. The evidence does not sustain this allegation. Nor is there any evidence whatever to sustain the count for use and occupation, unless a visit of examination be perverted into an entry for the purpose of enjoyment. The plaintiff was properly non-suited.

Judgment affirmed.