The defendant as the tenant of the farm was in possession of the premises, whilst the landlord was not, as against him, and as such, was in the actual and rightful possession of the wheat in question, which was in the barn on the premises, from the time he moved in as tenant until after the commencement of this action ; and under these circumstances, without proof of an actual demand and refusal before the commencement of it, plaintiff cannot maintain this action for the property, or the value of it; but as there has been no such proof in the case, the motion should prevail and the plaintiff must be nonsuited.