
    Biggs and others against Brown.
    When a landlord’s nó« tice to quit stated that the tenant had a lease till the 1st JLprü, 1811, a purchaser under the landlord •annot gainsay this assertion : and such tenant may maintain trespass for the way-going crop. .
    Though such purchaser obtain possession under a hab.fac. poss, on a judgment in ejectment obtained by his landlord against a former tenant, the tenant’s right to the way-going crop remains: and the record in the ejectment is not a justification of the trespass.
    In Error.
    ERROR to the Common "Pleas of Westmoreland county.
    Brown, the plaintiff below, brought an action of trespass against Biggs and others, for breaking and entering his close, and cutting and carrying away his corn there growing, fkc. On the trial the case was as follows :
    . Plumstead and Bernard Gratz were the owners of the land on which the alleged trespass was committed. In April, 1808, the agent of Plumstead and Gratz leased the premises to one Campbell at 20 pounds per annum, with an "agreement that if the place were not sold Campbell was to have the first offer of it for the next year; if sold he was to leave it at the end of any one year. In January, 1810, the place was sold to the defendant, Biggs; and on the 26th of the same month Campbell was told by the agent that he must leave the premises on the 1st April next ensuing, which he agreed to do,, and said that a written notice was not necessary ; but on the 1st April, 1810, when the agent went to the premises to deliver possession to Biggs, Campbell refused to surrender it for want of a written notice, and said he would hold the same for another year. On the 14th December, 1810, the agent of Simon Gratz (who claimed under Bernard Gratz) served a written notice on Campbell to quit on the 1st April, 1811} asserting in the notice that Campbell had a verbal lease of the premises from Simon Gratz for one year, to expire on the 1st April, 1811. The plaintiff, Brown, was under-tenant of Campbell, and had sown grain on the premises in 1810. In 1811 he went to reap this grain, but was prevented by Biggs; who afterwards, with the other defendants, reaped the grain and carried it away. The defendants offered in evidence, first as matter of justification, and secondly in mitigation of damages, the record of an ejectment by the lessee of Bernard Gratz against Patrick Campbell, in the Circuit Court of Westmoreland county, in which the plaintiff obtained judgmenton the 4th November, 1800, for an undivided moiety of the prg-. mises; a habere facias possessionem thereon in the spring of 1811, by virtue of which possession was delivered to Biggs,' prior to his cutting and carrying away the grain aforesaid. To which evidence the plaintiff objected; and produced a copy of the record of reversal of that execution by the Supreme Court, and of an award of restitution to Brown, after the present suit had been brought. The defendants admitted, that Patrick Campbell died several years before the time of issuing the execution, and that Bernard Gratz was also dead at that time. The court, thereupon, refused to admit this evidence as a justification of the trespass; but allowed it to be read to the jury in mitigation of damages, to which the defendants excepted.
    The court charged the jury in favour of the plaintiff, and the defendants excepted to the charge of the court. The jury found a verdict for the plaintiff.
    
      Alexander and Wilkins for the plaintiff in error.
    1. The record produced by the defendants was a full justification of the trespass. The habere facias possessionem gave Biggs possession of an undivided moiety : and the judgment being in force and unreversed, and by a court of competent jurisdiction, the execution was not void. The sheriff and those acting under - him are justified, as well as the party in the suit. Though an execution be issued irregularly, the sheriff is bound to obey it, and his acts pursuant thereto are legal. If a party acts maliciously he may be made liable in an action on the case: in which the jury are to decide on the circumstances. 10 Co. 76. Case of the Marshalsea, 2 Bac. Ab. 717. Jones v. Wilkins.
      
       Woodfall Land. and Ten. 218. 636. Reynolds v. Koch.
      Prigg v. Adams.
      
       Patrick v. Johnson.
      
       3 Binn. 410. Moore v. Chapman.
      
       2. Brown being tenant at sufferance, cannot support trespass against his landlord. Wild v. Cantillon.
      
       2 Black. 153. One having right of possession enters by force, the person turned out' cannot maintain trespass. Hyat v. Wood. There are circumstances in this case which preclude the tenant from the right to take-the way-going crop. Notice to quit had been given in January, 1810. He ought to have gone off in April, 1810: instead of which he remained and sowed his grain while he was a wrong-doer.
    
      Foster and Forward, contra.
    1. The hah. fac. poss. was void. The term had expired, and both parties were dead.At best it authorised the delivery of only an undivided moiety, in pursuance of the verdict and judgment. But a purchaser is bound to see that the execution, is warranted by the judgment. 2. Will trespass lie ? It is admitted, that tenant at sufferance cannot maintain trespass: but it is denied, that the plaintiff was tenant at sufferance. Besides, Brown never had notice to quit. Nor was notice given to Campbell three months prior to the 1st April, 1810. But what puts the matter out of doubt is, the notice of the 14th December, 1810, stating, that Brown had a lease for a year to expire on the 1st April, 1811.
    
      
      
         1 Vez. 195.
    
    
      
       3 Johns. Sep. 267.
    
    
      
      
         2 Salk. 674.
    
    
      
      
        3 Lev. 403.
    
    
      
       3 Hen. & Munf. 260.
    
    
      
       1 Johns. Cas. 123.
    
    
      
      
         4 Johns. Rep. 150.
    
   Tilghman C. J.

This is an action of trespass, brought by Robert Brown against Andrew Biggs, for breaking and entering his close, and cutting and carrying away his corn there growing, &c. Brown shewed title as an under-tenant of William Campbell, who had a lease of the premises from Simon Gratz (under whom the defendant claims) to expire on the 1st April, 1811. Brown had sown grain in the year 1810, and he claimed the way-going crop under the custom of Pennsylvania. There was a dispute respecting the termination of the lease. Notice had been given to Campbell in January, 1810, to quit the premises on the 1st April following, and he promised to do so, but afterwards refused, on the plea of not having received notice in-writing; although it was proved, that he had agreed to accept a verbal notice. So far the evidence was in favour of the defendant. But after-wards, on the 14th December, 1810, a new notice in writing was served on Campbell to quit on the 1st April, 1811, in which notice it was asserted, that the agent of Simon Gratz had made a verbal lease to Campbell for one year to expire on the 1st April, 1811. The defendant, Bigg’s, claims by a purchase from Gratz; so that he cannot gainsay Gratz s assertion, that the lease continued till the 1st April, 1811. Upon this state of the case, Brown would be entitled to recover on the authority of Stultz v. Dickey, 5 Binn. 285. in which it was decided by this court that the tenant is entitled to the way-going crop, by the custom of the state: and may sup-” port an action of trespass against his landlord after his lease is expired. The charge of the Court of Common Pleas- in favour of the plaintiff was therefore right.

But an exception was taken to the Court’s opinion, on the admission of a record offered in evidence by the defendant, which remains to be considered. This was the record of an action of trespass and ejectment, brought by the Lessee of Bernard Gratz against Patrick Campbell (father of William Campbell) in which the plaintiff obtained a judgment on the 4th November, 1800, for an undivided moiety of the premises. No execution was taken out on this judgment, till the spring of the year 1811: but in the mean time Patrick Campbell, and, after his death, his son William Campbell, held as tenants under Bernard Gratz and Plumstead, who owned the land as tenants in common. In the year 1811, Bernard Gratz and William Campbell being both dead, and Biggs, the defendant, haying purchased the land, in order to obtain the possession which was withheld by Brown, (the plaintiff) a hab. fac. pass, was issued on the judgment, by virtue of which possession was delivered to Biggs, who afterwards cut and carried away the grain of Brown, for which this action was brought. A writ of error was brought on this execution, on which the proceedings were reversed, and the possession restored to Brown, but not till after the commencement of the present action. The defendant contended, that the delivery of possession, under the execution, was a justification of the trespass complained of by the plaintiff. But the Court of Common Pleas were of opinion, that the record might be given in evidence in mitigation of damages, but not as a justification of the trespass. Many cases have been cited by the defendant to shew, that although an execution is irregularly issued, the sheriff is bound to obey it; and that neither the sheriff nor the plaintiff are liable to an action of trespass, although the plaintiff, if he acts maliciously, may be responsible in an action on the case. The principle established by these authorities is not applicable, because it only' proves, that neither the sheriff, who delivered, nor the dedefendant, who received, possession, were liable to an action of trespass. Supposing then the defendant to be lawfully in possession, still the plaintiff’s right to the way-going crop re~ mained. For the defendant, who claims through Gratz, cannot by an execution under Gratz, defeat the lease which Gratz had given. He had possession subject to the plaintiff’s right to the grain sown during the,lease. The Court of Common Pleas was, therefore, right, in deciding, that this record was not a justification of the trespass. The judgment is to be affirmed.

Yeates J. absent.

Brackenridge J. concurred.

judgment affirmed.'  