Motion for a new trial. The action is against the sheriff for the alleged wrong-doing of his deputy in the service of a writ of possession issued in an action of forcible entry and detainer. The judgment was obtained and the writ issued against James N. Cushing. The plaintiff’s goods were removed from the premises described in the writ and this is the act complained of in the present suit.
That the premises had for some time been occupied by the plaintiff and one Euel J. Cushing, each occupying a specific portion agreed upon between them, is not in dispute. The plaintiff claims to have been a tenant at will under Hollis Bowman, the owner. This is denied on the part of the defendant who contends that Cushing was tenant of the whole premises and that the plaintiff was tenant under him. After this occupation had continued for about two months Bowman gave a written lease to James N. Cushing for ten months and at or within seven days after its expiration commenced the action in which the writ in question was issued. The plaintiff had continued to occupy until his goods were removed at the time of the service of this writ.
Hence the nature of the plaintiff’s occupation became a material question which was submitted to the jury. If he was a tenant under Bowman it is evident that his goods were wrongfully removed for such tenancy had never been terminated as the statute required and the jury must have so found.
It is unquestionable that no man can become the tenant of another without his consent. In this case the decided prepon*202derance of evidence shows that Bowman never did consent to the plaintiff’s becoming his tenant, that he never received or recognized him as such before the written lease, and after that he could not. What then were the plaintiff’s rights in the premises ?
In a former action in which this plaintiff was defendant and James N. Cushing was plaintiff, it was decided by the court that the written lease was held by Cushing in trust for this plaintiff and upon that ground he succeeded in that, action, Cushing v. Danforth, 76 Maine, 114. If the question were now open the testimony in this case would lead to the same conclusion. Thus the right and only right which this plaintiff had in the premises was through and under James N. Cushing, as his cestui que trust. He had no direct claims as tenant, upon Bowman, and Bowman none upon him. He was not responsible under the lease to deliver up the premises to the lessor at its expiration, but at that time all his rights under it would cease and if he remained it would be only as a tenant at sufferance. Hence a judgment against Cushing would be a judgment against him and the writ of possession would authorize the officer not only to remove Cushing but all others whose rights there were dependent upon him or were in without right. As Cushing was the contracting party and his lease and its expiration laid the foundation of the process, the action was properly begun against him alone. Howe v. Butterfield, 4 Cush. 302.
But this defendant justifies further. In his brief statement of defence he says, " That all and every act his said deputy did in the premises, he did under and by virtue of his said precept, and also as the servant and agent of Hollis Bowman.”
As already seen after the expiration of the lease the plaintiff, as against Bowman, had no rights whatever in the premises. His tenancy whatever it was had ceased and it was competent for Bowman by himself or servant to remove him and his goods with or without process, if done in a peaceable way and orderly manner, after due notice. The testimony shows that whatever was done in this respect was done under the direction and by the order of Bowman, and that the plaintiff had due notice. If it *203was not done peaceably and orderly, of which there is no proof, Bowman or the servant might be liable but not this defendant as sheriff, as the writ was not served by him but by a deputy. Stearns et al v. Sampson, 59 Maine, 568.
Motion sustained.
Peters, C. J., Virgin, Foster and Haskell, JJ., concurred. Emery, J. concurred in the result.