— This was an action of ejectment or possessory action under the statute. On the trial of the cause the court below found that the plaintiff was not in possession of the premises sued for at the time of the commencement of his action, and therefore not entitled to recover. According to our recollection of the law, if he had been in possession, he would have had no right, and certainly no necessity, to bring suit.
Judgment reversed and new trial ordered.
I concur: Terry, J.