This action, in each of the three counts of the declaration, is tort for breaking and entering the plaintiffs’ close. It is an action for a violation of the plaintiffs’ possession. The wrongful acts done upon the land, though some of them were of such a character that they would give a cause of action to a reversioner, or owner of the estate not having the possession, are alleged merely in aggravation, and not in such a manner as to make them the foundation of the suit. Knapp v. Slocomb, 9 Gray, 73, 75. Phelps v. Morse, Ib. 207. Hastings v. *200Livermore, 7 Gray, 194. There is nothing in the bill of exceptions from wMch we can determine which of the acts charged in the declaration were proved, or for which of them the jury have assessed the damages.
Under these pleadings and in this state of facts, the ruling of the court in refusing to nonsuit the plaintiffs was right, because it does not appear that the action was not sustained. But there was evidence sufficient for the consideration of the jury that, during a part of the time to which the plaintiffs’ allegations might apply, the close described in the declaration was in the occupation of Smith as a tenant; that he was at least tenant at will, having the possession and paying rent. If this were so at the time when the defendant broke and entered the close, the right of action was in Smith, and not in the plaintiffs. But the court instructed the jury to find their verdict, “ irrespective of the evidence relied upon by defendant to prove an occupation of the close by said Smith.” The ruling made no distinction as to the different times at which the entering the close was committed; and there is nothing to show that the jury have found the defendant guilty of anything but the tort of breaking and entering at a time when the plaintiffs were not in possession.
For this reason the exceptions must be sustained and a new trial granted; though we fear that the apparent error may be owing to an imperfect report of the facts which appeared in evidence when the ruling was made. If the evidence showed only a mixed possession of the plaintiffs and Smith at the time when the defendant entered the close, as it certainly seems to have done at some of the time to which the declaration would apply, the ruling would have been right.
Exceptions sustained.