
    Blair vs. Pathkiller’s Lessee.
    If a writ of possession be issued, and in the execution of it the sheriff put the plaintiff into the possession of a part of the land, which was not in the possession of the defendant at the commencement of the suit, though embraced in the lines described in the declaration, a writ of restitution will be awarded to the defendant to restore him to the possession, upon a petition filed for that purpose.
    John Blair filed his petition in the supreme court, stating that the lessee of the Pathkiller prosecuted an action of ejectment for three tracts of land against James Blair, who during the pendency of the suit died, and the same was revived against said James Blair’s executors, and upon being tried, a judgment was given for the lessee of Pathkiller, and a writ of possession awarded; from this judgment an appeal was prayed and granted to the supreme court of this State, when the judgment was affirmed and a writ of possession awarded against the executors of Blair, of whom petitioner was one. That upon the execution of this writ of possession, all the lands in the possession of James Blair at the commencement of the suit, were delivered to the lessee of the Pathkiller; that afterwards an alias writ of possession was issued, upon the execution of which a quarter section of land belonging to petitioner, and embraced in the lines described in the declaration of the Pathkiller’s lessee, but not in the possession of James Blair at-the commencement of the suit, but in the possession of petitioner, was delivered to the lessee of the Pathkiller, and prays a writ of restitution. Notice was served upon the lessee of the Pathkiller, and Gardenhire, his agent, admitted in his affidavit, that James Blair had not the possession of the quarter section when the suit was instituted against James Blair, but that at that time one Cains held the possession for the Pathkiller, and afterwards delivered the possession to said John Blair, the petitioner. All the other facts stated in the petition are fully proved.
    $. Jarnagin, for the petitioner.
    
      R. J. Meigs, for the defendant.
   Green, J.

delivered -the opinion of the court.

By the petition and affidavit of Blair, as well as by the affidavit of Gardenhire, the agent of Pathkiller, it appears satisfactorily that James Blair was not in possession of the quarter section for which this writ of restitution is asked, at the time said James Blair was sued by Pathkiller. It is true, Gardenhire says that Cains was in possession, as tenant of Pathkiller, and that on the 10th of January 1821, Cains became the tenant of petitioner, without having surrendered the possession to Pathkiller. Take this statement to be true, and it must result that James Blair was not in possession, for whether Cains was in possession as tenant of John Blair or Pathkiller, his possession was not James Blair’s possession, and consequently could not have been put in litigation by the suit against James Blair. If it was not put in litigation, the judgment against James Blair was no judgment for the lands so in possession of Cains, and no writ of possession by virtue of that judgment, could extend to it or act upon the possessor. If John Blair, by collusion with Pathkiller’s tenant, obtained the possession, that cannot affect this question, however it may influence the judgment in an action of ejectment against John Blair. We, therefore, allow the writ of restitution according to the petition.

Writ allowed.  