concurred with Haywood, Judge, as to the last point in the cause, concerning which Whyte and Haywood disagreed, that the tenant could not, without restoring the possession, oppose the claim of his landlord; therefore the judgment was reversed and the cause remanded, that the evidence of the tenancy be received as proposed to be given by Phillips on the trial.

See Lane v. Osment, 9 Yer. 86; Marley v. Rogers, 5 Yer. 217; Duke v. Harper, 6 Yer. 280; Watson v. Smith, 10 Yer. 476; Lee v. Netherton, 9 Yer. 315; Blount v. Garen, 3 Hay. 91, and note sub fin.