Boyer v. Kimber

2 Miles 393

Opinion

Per Curiam.—

The 76th section of the act of June 16, 1836, is directory, and it is true that it permits a suggestion that the defendant has not real or personal estate in the county where the judgment is obtained, in order to enable the plaintiff to have a testatum execution. This provision evidently, however, refers to cases where a fieri facias has not been issued and returned nulla bona. Where that writ has been issued and so returned, record evidence is furnished that the defendant has not estate in the county, being evidence of a higher nature than the mere suggestion of the plaintiff In such a case the old practice obtains, and no suggestion is necessary. The testatum was therefore rightly issued.

Rule discharged.