Hussman

This is an action of ejectment. The plaintiff was non-suited at the trial, and the appeal is taken from the judgment and an order subsequently entered denying the plaintiff a new trial.

1. The action was brought in 1869, and Hayes, the landlord of the defendant Wilke, was joined with the latter as a defendant in the action. Hayes, among other defenses, pleaded the general issue, and there being no proof that at the time of the commencement of the action he was in pos- . session of any part of the premises sued for, the nonsuit was proper as to him.

2. As to the defendant Wilke, the material facts are, that in 1861, one Rix, being at the time in charge of the premises for the benefit of the plaintiff, agreed with the defendant Wilke to let the latter into possession, to hold for the protection of the plaintiff, and that in pursuance of this agreement, and for the purpose of carrying it into effect, he, Rix, subsequently delivered to the defendant Wilke a lease, in which lease, however, Rix purported to be the lessor and Wilke the lessee, and that upon the delivery of the lease, the latter took possession of the premises, and has ever since remained in their possession. In this…