The entry of the defendant was not tortious, but lawful. His covenant to convey is outstanding, and no means have been taken, by restoring the consideration, or otherwise, to rescind or annul the contract. The filing a declaration in ejectment does not in our opinion rescind the contract. In this class of cases some steps should be taken to determine the lawful possession of the defendant; some demand or notice should be given to the tenant, before suit is brought, and so are the authorities: 10 John. R. 335; 13 East. R. 210; 9 John. 267; 7 T. R. 83.

Nonsuit entered.