H. A. CLARK ET AL. v. W. J. FELL, EXR.

H. A. CLARK ET AL. v. W. J. FELL, EXR. APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 2 OP PHILADELPHIA COUNTY. Argued January 16, 1891 — Affirmed at Bar. It seems: It is not error to refuse to set aside a writ of fieri facias upon the petition of the defendant, alleging, as the ground thereof, that a levy had been made upon real estate but none upon personal property of the defendant. Before Paxson, C. J. Sterrett, Green, Clark, Williams, McCollum and Mitchell, JJ. No. 120 July Term .1890, Sup. Ct.; court below, No. 885 December Term 1887, C. P. No. 2. On February 21, 1890, judgment was entered on a verdict for $957.96 in favor of Harry A. Clark and others, trading as Clark Brothers & Co., against William Jenks Fell, executor and trustee of the estate of Franklin Fell, deceased. On May 1, 1890, on petition of the defendant setting forth that upon an execution issued from said judgment on April 28, 1890, the sheriff had levied upon certain realty, but no execution had “yet been issued upon the personal property.of said estate, in accordance with the terms and provisions of the act of assembly in such case made and provided,” a rule was granted to show cause why the said execution should not be set aside. On May 10, 1890, the rule was discharged, without opinion filed, whereupon the defendant took this appeal, assigning the order discharging the rule for error. Mr. Edward Barry, for the appellant. Counsel cited: Spear v. Hannum, 1 Y. 380, 387; act of 1705, 1 Sm. L. 57; Morris v. McConnaughy, 2 Dali. 189; Maybury;; v. Jones, 4 Y. 22; Ewing v. McNair, 2 Dali. 269; §§19, 20, act of June 16, 1836, P. L. 764, 765. Mr. M. Hampton Todd, for the appellee, was not heard. The brief filed cited: Sections 41, 42, 43, act of June 16, 1836, P. L. 768, 769. In this case, as well as in that preceding, the paper-books did not show that any exception whatever was sealed in the court below, raising any question for the Supreme Court to decide. [MAJORITY — Per Curiam :] Per Curiam : —On the argument at Bar, Judgment affirmed.