
    MATTINGLY & SMITH, ap’elnts, vs. JOHN LANCASTER, appellee.
    
    11 Oct 1819.
    
      On an appeal from a j'dgm't of the Washington circuit court.
    
    A defendant in a warrant of forcible detainer not having entered originally as tenant of the plaintiff, (or those whose estate he hath) is not subject to restitution—Vide 1 Mars. Helm vs Stroder, 320.
    
      Wickliffe for appellant, B. Hardin for defendant.
   Judge Owsley

delivered the opinion of the court.

This is an an appeal from a judgment of restitution, rendered by the circuit court, in favor of Lancaster, on the trial of a traverse taken to the inquisition of a jury had before a justice of the peace, under a warrant for a forcible detainer, against Mattingly and Smith.

The appellants having denied that they entered the premises as tenants to the appellee, or those under whom he claims; and the appellee failing to prove they obtained the possession either as tenants to him, or any other under whom he claims, the court should have instructed the jury to find for the appellants.

But having refused to give such instructions, the judgment must be reversed with cost, the cause remanded, and further proceedings had not inconsistent with this opinion. 
      
      Absent, Judge Rowan.
      
     