The evidence in this case proves beyond a doubt that Outright was a tenant of the plaintiff, and had the possession in fact of the premises at the time the trespass complained of was committed. A special contract had been entered into, by which Outright was bound to pay to the plaintiff two-thirds of the proceeds of the mill. Under this contract, Outright took actual possession of the mill and its appurtenances, and employed and paid his own laborers, in conducting the business of the mill. The same relation of landlord and tenant existed between Outright and the plaintiff, as between any other tenant who is bound to yield one-third of the crop, and the owner of the soil.

It is no longer an open question, whether trespass guare clausum fregit can be supported by the lessor, for a wrong done by a *397stranger, while the tenant has the actual possession. 1 Chitty’s Pl. 161; 1 Johns. 511; 3 Sorg. & Rawle, 514.

New trial granted.