Orinton bt

The judgment of the justice, on which execution was immedi- ■ ately issued, was not void by reason of the alleged irregularities or otherwise. At most it was merely voidable; and hence it was sufficient to support the execution on which the property in controversy was sold to the beneficial plaintiff. She must be regarded as a stranger, and cannot be affected by mere irregularities in the proceeding. The constable having rightfully levied on the property, it was his duty to proceed with the execution of his writ until he was notified that it was stayed or superseded, if in fact it ever was superseded.

As was said in O’Donnell v. Mullin, 27 Pa. 199, 67 Am. Dec. *9458, it is the business of the justice, not the constable, to determine in the first instance whether an alleged appeal is regularly taken or not. If it is so taken as to operate as a supersedeas,, it is his duty to notify the constable and revoke the execution. If he erroneously or unjustly refuses to do so the defendant’s remedy is by certiorari to the execution.

In the case at bar no such notice was, given by the justice or anyone else, and the action of the justice, in that regard, was acquiesced in until after the sale was effected. Under the circumstances disclosed by the uncontradieted evidence of plaintiff, we think the learned judge erred in nonsuiting her on the ground that she acquired no title to the property in controversy by the constable’s sale, and in afterwards refusing to take off the nonsuit. The assignment of error is therefore sustained.

Judgment reversed and a venire facias de novo awarded.