
    [No. 9907.
    Department Two.
    September 24, 1885.]
    J. E. SIMPSON, Appellant, v. G. W. APPLEGATE, Respondent.
    Ejectment—Jdbt Tbial—Tenancy at Wlu,—Nonsuit.—In an action of ejectment tried by a jury,where one of the issues was as to whether the defendant was a tenant at will, the evidence on the subject being conflicting, held, that a nonsuit could not be granted on a ground which assumed the existence of the tenancy.
    Appeal from a judgment of the Superior Court of the county of Placer, and from an order refusing a new trial.
    The facts are stated in the opinion.
    
      C. A. & F. P. Tuttle, for Appellant.
    
      Hale & Craig, for Respondent.
   Foote, C.

A suit in ejectment for certain lands. The defense set up was an equitable title of the defendant in possession. A jury was impaneled to try the issues of fact in the case. The plaintiff and defendant respectively introduced their evidence, and then the defendant moved for a nonsuit, which was granted by the court, and from its judgment and an order denying a new trial the plaintiff appealed.

The ground upon which the court rendered its j udgment was, that by the evidence a tenancy at will was shown in the defendant and no notice had been given him under section 789 of the Civil Code.

There appears to have been a conflict of testimony as to whether the defendant was or was not such tenant, which question should have been submitted to the jury under proper instructions.

For this reason the judgment and order of the court below should be reversed and the cause remanded for a new trial.

Searls, C., and Belcher, C. C., concurred.

The Court. For the reasons given in the foregoing opinion the judgment and order are reversed and the cause remanded for a new trial.

Hearing in Bank denied.  