The Venue in this case was laid in Philadephia, and Judgement
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, alledging that it ought to have been preceeded by a
Fi fa, in the county where the Venue was laid, in order to ground a
Testatum into Bucks.
Page 1 U.S.
330, 331
Levy, in showing cause, contended, that the act of Assembly had
departed from the practice in England; and that in directing a
Testatum it referred only to the Courts of Common Pleas, which are
limitted 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 diviation
Page 1 U.S.
330, 332
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
Page 1 U.S.
330, 333
been the same. But, he contended, that unless the act of
Assembly had expressly 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 attornies, contrary to
his opinion.
Page 1 U.S.
330, 334
By The Court: 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 mulla bona; and then a term must
intervene before the Testatum issues, in order to support the
fiction.
The Execution quashed.
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