
    Henry Lienow versus Uriah Ritchie.
    Where real property is in the possession of a lessee, other than a tenant at will, case, and not trespass, is the proper form of action to be brought by the landlord for an injury by a stranger, affecting the inheritance, even where trespass would be the proper remedy if the landlord were himself in possession.
    
      June iOtit,
    cited Morgan v. Hughes, 2 T. R. 231 ; Hay v. Edwards, 5 T. R. G48 ; Savignac v. Roome, 6 T. R. 128 ; Ogle v. Barnes, 8 T. R. 188 ; Starr v.' Jackson, 11 Mass. R. 520.
    This was an action on the case brought by the owner of a house for cutting away a part of it while it was in the occupation of his tenant for the term of one year. After a verdict for the plaintiff, it was moved in arrest of judgment, that trespass, and not case, was the proper form of action.
    S. D. Parker, in support of the motion,
    
      H. A. Simmons and Gay, contra,
    
    cited Ward v. Macauley, 4 T. R. 489 ; Hammond’s N. P. 15, 28, 29 ; Taylor v. Townsend, 8 Mass. R. 411 ; Commomoealth v. Bigelow, 3 Pick. 31; 1 Chit. PI. 142 ; Jesser v. Gifford, 4 Burr. 2141.
    
      June 27 th
    
   Per Curiam.

The facts found show a proper ground for an action on the case. The plaintiff, not being in actual possession, nor having the right to possession against his lessee, could not maintain trespass. Case is the proper remedy for the landlord, when an injury is done to the inheritance.

The case of Starr v. Jackson affirms this doctrine, and only decides that trespass may be maintained by the landlord when the lessee is only tenant at will, not that case, even under those circumstances, would not lie.

Judgment according to verdict '. 
      
       See Hall v. Snowhill, 2 Green, 8; Ran dell v. Cleaveland, 7 Connect. R. 328.
     
      
       See Hinghani v. Sprague, 15 Pick. 102. In New York, case only will lie even where the land is in possession of tenant at will. Campbell v. Arnold, 1 Johns. R. 511; Tobey v. Webster, 3 Johns. R. 468. See also Revett v. Brown, 5 Bingh. 7; Harper v. Charleicorth, 4 Barn. & Cressw. 574, and cases cited in Starr v Jackson, 11 Mass. R. (Rand’s edit.) 527, note (a).
      
     