The judgment of the court was entered October 16th 1871.

The questions arising out of the proof in this case were properly left to the jury. Taking care of the key of the house and repairing the floor after the tenant had voluntarily left, were no eviction. ■ He would have been entitled to enter if he had returned — but he did not return. He was neither put out nor sold out by the plaintiff. If the acts of the plaintiff would have been no defence in defendant’s favor, it would not avail the surety, and we are very clear they would not have availed him.

Judgment affirmed.