There was evidently a mistrial in this case. The exceptions state that the plaintiff was either a tenant at will or by sufferance of the defendant Richardson. This was a material fact, which ought to have been determined definitively at the trial. If the plaintiff was tenant by sufferance, he could not maintain this action at all. An action of tort for breaking and entering the plaintiff’s close does not lie in favor of a tenant by sufferance against his landlord. Meader v. Stone, 7 Met, 147. Curtis v. Galvin, ante, 215. Verdict set aside.