Philadelphia Loan Co. v. Amies

2 Miles 292

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: April 20, 1839
• Status: Published

Opinion

Per Curiam.—

It is unnecessary to decide whether as to plaintiffs’ fieri facias there was an irregularity. The sheriff has sold under that writ, and has so returned it. If the objection existed, it was competent to the defendant to move the court, before the sale, to set aside the levy, and his acquiescence must be deemed a waiver of the error. Another execution creditor cannot take advantage of the irregularity. As to the other point which has been raised, relative to the issuing of an attachment of execution subsequently to that of th e fieri facias, we cannot sustain the views taken by the counsel of Mr. Lennig. It is true that we have decided, and the decision is adhered to, that the writs of execution provided by the act of 16th June, 1836, may be issued cotempo-raneously, but before execution the defendant may require the plaintiff to elect on which he will proceed, and if the plaintiff does not so elect, the defendant may successfully move to set aside the service of either writ, at his election. But here the defendant interposes no difficulty as to the irregularity in this respect, and we cannot take notice of it if suggested by any other person.

Rule absolute.

a

See Davies v. Scott and Grant v. Potts, in this volume.