Opinion of the Court by
Tompkins Judge.Benton brought an action of trespass against Roussin and others in the circuit court- of Washington county, when judgment being given for him, the defendants prosecute their writ of error in this court to reverse- the judgment of the circuit court.
On the trial of the cause the court was prayed to instruct the jury, that if they believe from the evidence that Lord was in possession of the premises as tenant to the plaintiff at the time the trespasses were charged to be committed then Benton could not maintain his action of trespass. This instruction the court refused, to give, and instructed the jury that Lord might recover for injuries done to his possession, but that the injury complained of was ¿n injury to the freehold, and that for such injury the owner of the freehold could maintain his action of trespass, although Lord might be his tenant in possession. The opinion of the court is excepted to, and the giving of the instructions is assigned as error.
The instruction given by the court was wrong. No evidence of the possession of Lord appears on the record. The instruction asked as well as that given raise the presumption that such evidence was given. But whether such evidence were given or not, the instruction being unfavom-able to the defendants, it was error in the court to give it, see 1 Johnson 511 and 12 Johnson 183 where it is decided that a lessor cannot maintain an action of trespass quare clausum fregit while there is a tenant in possession.
The judgment of the circuit court ought to be reversed, and all the court concurring it is reversed.