
    James Benhard et al. v. Francis Darrow et al.
    
    When a person not a party to the suit, has come into possession of mortgaged premises since its commencement, and refuses to deliver up possession to the purchaser, on production of the Master’s deed and a certified copy of the order confirming the sale, a writ of assistance will not bo granted, unless notice of the motion, with the affidavit on which it is founded, is served upon him.
    Motion for a writ of assistance to put one of complainants in possession of mortgaged premises purchased by him at the Master’s sale. It appeared from the affidavits on which the motion was founded, that one Parks, who was not a party to the suit, was in possession of a part of the premises; that he had but recently taken possession under one of defendants; and that he refused to deliver possession to the purchaser, on being shown the Master’s deed, and a certified copy of the order confirming the sale.
    
      L. Allen,
    in support of the motion.
    
   The Chancellor.

Parks, not being a party to the suit, should have been served with notice of the motion. Where a party to the suit is in possession, the motion is ex parte; but one in possession not a party to the suit, is entitled to notice of the motion, and to be heard on it, so far as the granting of it may affect his rights.

Let an order be entered requiring Parks to show cause against the motion, on being served with copies of the affidavits, &c.  