
    Ex parte P. Reynolds.
    If a man bo turned out of possession, by a mistake in executing a writ ol possession against him, instead of another, the court'will, on motidn, grant relief, and order restitution. •
    This was an application for a writ of restitution. The facts are stated in the opinion of the court, which was delivered by.
    Spencer, J.
    It appears by the affidavit of the deponent, (and the allegation is uncontroverted,) that in October last, upon a writ of habere facias possessionem, issued out of this court, in the case of Jackson, ex dem. Low and others, the deponent was turned out of possession of a house and 50 acres of land, being part of lot No. 37, in Romulus, in the county of Cayuga; that the possession held by him was delivered by the agent of Mr. Low; that the deponent was, prior to the commencement of the ejectment against James Reynolds in peaceable possession of the land from which he was expelled; that the object of the suit against James Reynolds was for the recovery of different lands which he held on another part of the lot, and that the two possessions were separate and distinct.
    It is a settled rule of practice, that no tenant who was in possession anterior to the commencement of an' ejectment, can be dispossessed upon a judgment and writ of possession, to which he is no party. It is the opinion of the court, that Peter Reynolds is entitled to relief, and that a writ of restitution issue to reinstate him in the possession of the, premises from which he has been thus irregularly ousted.
   Restitution ordered.  