By the report of the Judge it appears that the only question reserved is, whether the evidence disclosed on the trial is sufficient to prove that at the time of the commencement of the action, the defendant held possession of the premises demanded or any part thereof. The Stat. of 1826, ch. 344, renders it necessary, even under the general issue, for the demandant to prove that fact. It seems to have been understood, until the testimony was nearly closed, that the action was commenced prior to the passage of the act, above mentioned, and so did not come within its provisions ; and little evidence seems to have been directed to the point; the merits of the cause, depending on the agitated question of fraud, occupying the principal attention of the parties. The only proof of the alleged possession, arises partly from the deposition of Marlborough Sylvester, and partly from the defendant’s disclosure. Sylvester testifies that the defendant never had any possession of the premises, except putting up some fence, which was after Slcoljield’s death ; but it does not in any manner shew what was the state of the fact at the time the action was commenced. The defendant in his disclosure says, “ Slcolfield now lives on my property in Harjis-well. There is no particular agreement between us on the subject” (of rent) “ nor any understanding. I calculate to take the property into my hands, whenever I think proper.” On these facts we cannot say that ever the relation of landlord and tenant existed between them; and the expression of the defendant as to his calculation to take the property into his hands at some future day, carries a strong implication with it that he had, not done so, directly or indirectly, when the suit was commenced. It does not appear that the jury considered the question. On the whole, we think there must be a revision of the cause and the facts, touching the question of possess*337ion moro particularly examined, so that the demandant may furnish more satisfactory evidence, if lie can. In many instances parties have been led into mistakes by the new provision introduced by the act before mentioned; still, as the act requires proof of such possession, on the general issue, even where the whole question between the parties is a mere question of title, we must see that the law is carried fairly into execution. We doubt not that the act was passed with the best of motivos, but in practice it has been found not only inconvenient, but sometimes leading to perplexity; and where, on the trial of the cause, a demandant may fail to sustain it, on the ground, merely, of an accidental absence of proof of possession, although lie may have a legal title to the premises demanded, great attention must be paid to prevent uncertainty as to the real and true reasons of the verdict, inasmuch as the record will not show the principles on which it was returned in favor of the defendant. And in case of a second action brought to recover the same premises, there often may be great difficulty in-showing tliat the merits of the title were not decided on the first trial, unless the precise ground on which the verdict was given, was stated in the verdict. In the present case wc are of opinion that there must be a new trial.

Verdict set aside.