Mayo v. Sprout
Synopsis
Service of Writ of Restitution.—One who, after an action of ejectment has been commenced, enters upon the demanded premises, but does not enter under the defendant, or by collusion with him, and is not made a party to the action, cannot be removed by virtue of a writ of restitution issued on a judgment rendered in the action.
Remedy for Abuse of Writ of Restitution.—One who is wrongfully removed under a writ of restitution, will be restored to the possession upon application made to the Court.
By the Court: The authorities of the city were turned out of possession of the premises by means of a writ of habere facias issued in this action, to which they were not parties.
It is true they had entered only after the action of Mayo v. Sprout had been commenced, but it is clearly shown that, they did not go in under Sprout, or by collusion with him.
Under such circumstances it was an abuse of the process of the Court to disturb them, and the Court below properly directed that they be restored to the possession.
Order affirmed.
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