Lesher v. Gehr
1788.
LESHER verʃus GEHR.
T
HE Venus in this cafe was laid in Philadelphia, and Judgment being entered, an execution was thereupon iffued immediately into Bucks county.Sergeant obtained a rule to fhew caufe, why the execution fhould not be quafhed, alledging that it ought to have been preceeded by a Fi.ƒa in the county where the Venus was laid, in order to ground a Teʃtatum into Bucks.
Levy, in fhewing caufe, contended, that the act of Affembly had departed from the practicein England; and that in directing a Teʃtatum it referred only to the Courts of Common Pleas, which are limited in jurifdiction to a fingle county : That the fame acts eftablifhed the jurifdiction of the Supreme Court, and that, therefore, as the Legiflature was filent with refpect to iffuing a Teʃtatum from this latter court, it was fairly to be inferred, they did not mean to require it. He further infifted that the practice fupport his conftruction, and that a deviation from it would be attended with great delay and injuftice; for when the act was paffed, although a Teʃtatum might iffue in three months from a Court of Common Pleas, it muft have been fufpended for fix 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, ftated, that the Supreme Court has powers fimilar to the Courts of King's Bench and Common Pleas in England, and that the courfe of practice, with refpect to a Teʃtatum, had always been the fame. But, he contended, that unlefs the act of Affembly had exprefsly extended the power to the county courts, they could not have proceeded by Teʃtatum, to execute out of their immediate jurifdiction ; which is the true reafon why the Legiflature takes notice of the writ in one cafe, and not in the order.
Upon a queftion from the Court, Mr. Burd, the Prothonotary, faid that previoufly to the Revolution, the proceeding, in fuch cafes, had always been by Teʃtatum; though fince that period a different practice had been introduced by fome of the attornies, contrary to his opinion.
1788.
by the court:–The Legiflature before the Revolution prefcribed no rules for the Supreme Court ; but it is certainly vefted with the powers of the King's Bench and Common Pleas in England ; and the practice has been, in general, governed by the fame law. Hence, we find, that it was formerly thought neceffary to proceed by Teʃtatum in Pennʃylvana ; and although a contrary practice has lately obtained, it is without the opinion or fanction of the court.
We think, therefore, that this execution muft be quafhed ; and in every future cafe of the fame kind, let a Fi.ƒa. be filed in the Supreme Court, with a return of nulla bona; and then a term muft intervene before the Teʃtatum iffues, in order to fupport the fiction.
The Execution quafhed.
RESPUBLICA