Jarrett v. Tomlinson
Supreme Court of Pennsylvania
THIS was a writ of error to the Common Pleas of Montgomery county, to remove the judgment and proceedings, but not the executions.
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THIS was a writ of error to the Common Pleas of Montgomery county, to remove the judgment and proceedings, but not the executions. A summons in debt was issued in that court to May term 1838, by Jesse Tomlinson, assignee of Thomas Tyson, against Levi Jarrett, which was returned served, and the plaintiff obtained a judgment by default for want of appearance on the 3d of July 1838; debt and damages, $2288.98. A fieri facias was issued to November term 1838, which was levied on a messuage and 123 acres of land, situate in Upper Dublin township. On the 20th of November 1838, the court granted a…
1Opinion of the Court
The opinion of the Court was delivered by
Rogers, J.
In making the rule absolute, for staying proceedings on th e fieri facias, the court committed a manifest error; for the plaintiff creditor had a right to sell the interest of his debtor, although the premises on which levy was made, were in the adverse possession of another claiming under a personal title. In consequence of the course pursued, there was no alternative but to issue a scire facias, and to warn the claimants as terre-tenants. On the trial however, it being perceived that the title could not be tried, the court retraced their…
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