This case does not involve the question, whether title can be resorted to when there are adverse occupants to decide the fact of possession. The fact of possession between Cely Weeks and the prosecutor, being before the Jury, the deed was offered to show that the same state of facts existed between one of the Defendants and the prosecutor. It was not offered to show that title was in the Defendant, and not in the prosecutor, but to communicate to the Defendant the possession of Cely Weeks, if she had one, to substitute him *137for her as to that fact, and for no other purpose. I think that the evidence should have beeu received.
It appears from the testimony of the prosecutor, that he had the consent of the owner of the land, to use the house as long as he pleased. There was no contract for that purpose, guarding her orchard from the inroads of the boys, made none; either party might alter their mind when they pleased, lie might have left the house without any breach of contract, and the owner had the right of requesting him to do so, and enforcing the request by any lawful means. It appears that the Defendant Weeks purchased the house of the owner, notice of this was given to the prosecutor, he persisted in re-taking possession of it, after the Defendants had become possessed, and here I suppose that the assault and battery charged, was committed. It does not appear that the Defendants acted otherwise than to take up the prosecutor and put him out of doors, and as one of .them owned the house, and the other acted by his authority, they had a right under the circumstances of the case to do so, if they used no unnecessary violence ; but to. shew this right in them, I think the deed from. Celt/ Weeks to Fender Weeks, ought to have been read in evidence. As it was not, a new trial must be granted.
J Ü.O GHENT REVERSED.