Slayton v. Russell ( 1860 )

By the Court.

Lyon, J.,

delivering the opinion.

The right of the plaintiff in error to the possession of the corn in controversy depended entirely on the vitality of the writ of habere facias possessionem, under which the deputy sheriff, William A. Crumby, acted in putting him in possession thereof. That writ had been superseded and suspended by an order of the Superior Court of Fayette county before the deputy sheriff had placed the plaintiff in error in the possession. The writ was, therefore, inoperative, and the possession acquired under it wrongful and tortious, whether the plaintiff in error had notice of the order or not. But there is abundant evidence in the record, that if Slayton himself did not have notice of the order, his agent and attorney did,< and by which he is bound. The tenant, Russell, who made the corn, and who had thus been deprived of his property, had the right to rescue the possession of which he had been illegally ousted. The judgments of the Courts below, in so holding, must be affirmed.