McIntire v. Wing

The opinion of the court was filed Per Curiam. There is no error in the refusal of the court to take off the compulsoiy nonsuit. The evidence wholly failed to show that the defendants were in possession of the land in question; They were not served with the writ by the sheriff. The presumption of possession created by the statute, when the sheriff makes return under oath that he has duly served the writ on the defendants, does not exist. While an appearance and plea by counsel may lead to a verdict and judgment against the defendants, yet on the trial, it is necessary to prove that they were in possession of the premises. Failing in this, the nonsuit was properly entered. This view makes it unnecessary to consider the other questions. Judgment affirmed.