Jarrett against Tomlinson, 3 Watts & Serg. 114

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 steps by a special direction discharging the jury from giving a verdict as to the terre-tenants. Of this the plaintiff complains, but, we think, without cause. The terre-tenants were improperly brought on the record, at his instance ; and it would have been useless to proceed with the trial, on that issue, when the verdict, result as it might, would have been of no service to either party.

The only effect, whatever may have been the object of the party, has been to baffle and delay the creditor; and we cannot say that the.court were wrong in putting an end to it at the earliest possible time. The plaintiffs in error contend that, as heirs, they were prevented from making defence. But this is not so; for the court only discharge the jury as to the terre-tenants; and as to them only was issue joined. It is apparent, from the record, they had no defence, as heirs, and if they had, they were not prevented from asserting it.

It is impossible to avoid seeing that the only controversy was as to the title under the alleged fraudulent conveyance, which "he court ruled could not be investigated on the scire facias. After the jury were discharged, it appears from the record that the counsel for the administrators gave judgment de bonis, which disposed of all the issues. We should be ill employed in reversing a judgment for an irregularity caused by the party complaining; and when no wrong has been done. This is an answer to the 1st, 2d, 4th and 5th errors.

We give no opinion as to the 3d error, because there is no writ of error to the execution. Judgment affirmed.