Fitzpatrick v. Edgar
Supreme Court of Alabama
Error to the County Court of Montgomery. This was a scire facias sued out at the instance of the defendants^ error against the terre tenant and heirs of Joseph Fitzpatrick, deceased, and others alleging that on the 10th December, 1840, the plaintiffs recovered a judgment against Joseph Fitzpatrick, deceased, for $1192 91 damages, besides costs, and six other persons, who are named; that execution of the damages and costs aforesaid, remain to be made, and commanding the…
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Error to the County Court of Montgomery. This was a scire facias sued out at the instance of the defendants^ error against the terre tenant and heirs of Joseph Fitzpatrick, deceased, and others alleging that on the 10th December, 1840, the plaintiffs recovered a judgment against Joseph Fitzpatrick, deceased, for $1192 91 damages, besides costs, and six other persons, who are named; that execution of the damages and costs aforesaid, remain to be made, and commanding the sheriff to make known these facts to the tenant in possession of the lands of Joseph Fitzpatrick, and others, his heirs, who…
1Opinion of the CourtOrmond, J.
The question to be decided is, whether on a judgment recovered against the ancestor, the plaintiff can have execution against the heir upon scire facias, for lands descended without including the personal representative, no execution having issued on the judgment.
It appears that at common law, this writ lies in favor of the plaintiff against the heir, upon judgments after a year and a day. [Withers v. Harris, 1 Salk. 600.] It is however, stated in the Institutes, that this remedy at common law was confined to real actions, and was given in personal actions by the statute Westminster, 2; [3…
2Cases cited3 opinions
- Blount v. TraylorSupreme Court of Alabama · 1843
- Bells v. Heirs of RobinsonSupreme Court of Alabama · 1827
- Woods v. McCannSupreme Court of Alabama · 1841
3Cited by9 opinions
- Phillips v. Ash's Heirs & Adm'rsSupreme Court of Alabama · 1879
- Lamar v. GunterSupreme Court of Alabama · 1864
- Ray v. ThompsonSupreme Court of Alabama · 1869
- McEachin v. ReidSupreme Court of Alabama · 1867
- Fry v. Branch Bank at MobileSupreme Court of Alabama · 1849
4 more not listed; retrieve them via the Exa API.