Lesher v. Gehr — 1 U.S. 330

Majority

p. 351

*Lesher v. Gehr.

Syllabus

Execution.

Where the venue was laid in Philadelphia, it was held, that an execution could not issue into Bucks county, without z,fi. fa. previously issued and returned in Philadelphia.

The venue in this case was laid in Philadelphia, and judgment being entered, an execution was thereupon issued immediately into Bucks county.

Sergeant

obtained a rule to show cause why the execution should not be quashed, alleging that it ought to have been preceded by a fi. fa. in the county where the venue was laid, in order to ground a testatum into Bucks.

*Bevy, in showing cause,

contended, that the act of assembly had departed from the practice in England ; and that in directing a rí¡ *- testatum, it referred only to the courts of common pleas, which are limited in jurisdiction to a single county. That the same act established the jurisdiction of the supreme court, and made it co-extensive with the state ; and that, therefore, as the legislature was silent with respect to issuing a testatum from this latter court, it was fairly to be inferred, they did not mean to require it. He further insisted, that the practice supported his construction, and that a deviation *from it would be attended with great delay and injustice; for, when the act was passed, although a testatum might issue in three months from a court of common pleas, it must have been suspended for six months in the supreme court; and thus a debtor would have it in his power to give an unfair preference to creditors in the county where he lives.

Sergeant, in reply,

stated, that the supreme court has powers similar to the courts of King’s Bench and Common Pleas in England, and that the course of practice, with respect to a testatum, had always *been the same. But he contended, that unless the act of assembly had ex-[*333 pressly extended the power to the county courts, they could not have proceeded by testatum, to execute out of their immediate jurisdiction ; which is the true reason why the legislature takes notice of the writ in one case, and not in the other.

Upon a question from the court, Mr. Burd, the prothonotary, said, that previously to the revolution, the proceeding, in such cases, had always been by testatum ; though since that period, a different practice had been introduced by some of the attorneys, contrary to his opinion.

The legislature, before the revolution, prescribed no rules for the supreme court ; but it is certainly vested with the powers of the King’s Bench and Common Pleas in England; and the practice has been, in general, governed by the same law. Hence, we find, that it was formerly thought necessary to proceed by testatum in Pennsylvania ; and although a contrary practice has lately obtained, it is without the opinion or sanction of the court.

We think, therefore, that this execution must be quashed ; and in every future case of the same kind, let a fi. fa. be filed in the supreme court, with a return of nulla bona ; and then a term must intervene, before the testatum issues, in order to support the fiction.

The execution quashed,^[1]

(a) (a) See Fulton v. Irwin, Addis. 19; Ewing v. McNair, 4 Yeates 192 ; s. c. 2 Dall. 169 ; Baker v. Smith, 4 Yeates 189 ; Cochrane v. Cummings, 4 Id. 136; Maybury v. Jones, 4 Id. 21, Green v. Allen, 2 W. C. C. 280; Cowden v. Brady, 8 S. & R. 505; and the act of April 1823 (8 Sm. Laws 175).