Carrier & McPherson v. Esbaugh
Supreme Court of Pennsylvania
Error to the Court of Common Pleas of Jefferson county: No. 32, to October and November Term 1871. This was an action of trespass d. b. a., commenced, December 29th 1868, by F. C. Esbaugh against Nathan Carrier, Jr., A. D. McPherson and A. J. Smathers. Smathers was plaintiff in an execution against Esbaugh; Carrier was the sheriff and McPherson his deputy, who executed the writ and sold the goods.
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Error to the Court of Common Pleas of Jefferson county: No. 32, to October and November Term 1871. This was an action of trespass d. b. a., commenced, December 29th 1868, by F. C. Esbaugh against Nathan Carrier, Jr., A. D. McPherson and A. J. Smathers. Smathers was plaintiff in an execution against Esbaugh; Carrier was the sheriff and McPherson his deputy, who executed the writ and sold the goods. A judgment had been entered to February Term 1867 in favor of Smathers against Esbaugh for $144.30. On this judgment a fi. fa. was issued to September Term 1868, under which the personal property of…
1Opinion of the Court
*242The opinion of the court was delivered, January 9th 1872, by
Williams, J.
The first question presented by the record is, whether trespass or case is the proper remedy for the seizure and sale of the plaintiff’s goods on an execution against him without giving six days’ notice of the sale, as provided by the Execution Act of the 16th June 1836. The action is trespass, and we are clearly of the opinion, both on principle and authority, that it is the appropriate remedy. Though the levy was lawful, the sale, without the notice required by the statute, was such an abuse of the authority contained…
2Cases cited2 opinions
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3Cited by2 opinions
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