¶1The authorities cited by the counsel for the defendant show the general rule to be, that the landlord cannot maintain trespass for an entry upon land while in the occupation of a tenant. -' • - g
¶2In Starr vs. Jackson, 11 Mass. Rep. 521, this doctrine is controverted, -but in that case there was an injury to the estate of a permanent nature, which was considered as a direct and immediate injury to the owner.
¶3.Whether such form of action is in fact proper, even where an injury of a permanent character has been done, it is not material now to enquire. 3 Green. 6, Little vs. Palister.
¶4There is no pretence of any such injury in this case ; and if it had been found that Andrew Robertson was at the. time legally a tenant of the.plaintiffs, it would have been, a sufficient defence to this, action.
¶5But the evidence as stated does not show this conclusively.
¶6*308If the plaintiffs, for the purpose of assisting their father, permitted him to occupy the farm, and take the produce to himself, he would then have been, at least, tenant at will; and although such tenancy might have been terminated at the pleasure of the plaintiffs, so long as it existed they could not maintain this action.
¶7But if, on the other hand, for the purpose of aiding their parent, they permitted him to occupy and labor upon the farm, under an agreement that he should take from the produce what might be necessary for the support of himself and family, so long as he was there, and nothing more, the produce belonging to the plaintiffs, and they taking the residue, the father in such case would be, legally, the servant of the plaintiffs, laboring upon their land, and receiving his support, from time to time, as the wages of his service ; and his possession would in that case be the possession of the plaintiffs.
¶8In such case, the father would have no right to the produce beyond what was appropriated to his use, from time to time, nor until it was so appropriated; and if the plaintiffs saw fit to turn him from the possession, he would have no claim to emblements.
¶9In which of these characters Andrew Robertson stood, does not appear. That is a fact to be found by the jury, upon consideration of all the facts proved. 1 Stark. Ev. 408, 410. And as this question was not submitted to them, there must be a
¶10New trial.