
    *Joseph Vandoren against John H. Bellis.
    ON CERTIORARI.
    In an action of trover for 200 sheaves of rye, the defendant, in order to justify the taking of the rye, may give in evidence the record of a judgment in ejectment by A. against the plaintiff, and the habere facias possessionem by virtue of which A. was put in possession of the premises on which the rye was cut, and the lease from A. to the defendant, of said premises.
    This was an action of trover, brought by Bellis against Vandoren for 200 sheaves of rye. A judgment had been rendered, by the justice, for the plaintiff, whereupon Vandoren appealed; and, upon the trial of the appeal, the following facts appeared in evidence. Bellis, the plaintiff, had purchased a farm of Doct. J. Schenck, and gave a mortgage on it for the consideration money; Bellis entered into possession of the farm, and in the fall of 1821 had sown a crop of rye; the money due on the mortgage remaining unpaid, Schenck, in the meantime, had brought an ejectment therein, obtained judgment, and by virtue of an habere facias possessionem, was, on the 22d of June, 1822, put in possession of the farm by the sheriff; and on the same day made a lease of the same premises to the defendant, Vandoren, who gathered and threshed the rye which had been sown by Bellis, the plaintiff, and for which the action was now brought. The defendant Vandoren, the appellant in appeal, offered in evidence the record of the judgment in ejectment in the case of Den ex dem. Jacob R. Schenck v. John H. Bellis, and also the writ of habere facias possessionem, with the sheriff’s return; likewise a lease between Jacob R. Schenck and Joseph Vandoren, dated 24th June, 1822, for the premises on which the rye in question grew; and it was admitted that all these papers were read in evidence on the trial before the justice. The Court of Common Pleas rejected this testimony, and the jury found a verdict in favor of Bellis, the appellee, for $40.
    
      
      Vroom,
    
    now moved to reverse the judgment of the Court of Common Pleas, because they refused to receive the testimony offered. The evidence, he contended, was perfectly proper; Joseph Vandoren defended the taking the grain, as the tenant of Jacob R. Schenck; and if Schenck, when he was put in possession of the premises by the sheriff became entitled to the *grain growing on the farm, then it was obvious the plaintiff could not recover; that the possession which the sheriff delivered by virtue of an habere facias was an unconditional one, and negatived any tenure which the tenant might have. Adams on Eject. 308. The evidence offered, therefore, was proper to shew the right of Schenck, under whom Vandoren claimed, and ought therefore to have been received.
   The opinion of the court was delivered by

Ford, J.

It was error in the court to refuse to receive in evidence the writ of possession and the proceedings in ejectment.

Let the judgment be reversed.  