| Pa. | Apr 11, 1840
The opinion of the Court was delivered by
By several acts of assembly enacted in 1836, certain chancery powers are vested in the Supreme Court, and other common law Courts of this state. No one of those laws however, nor all of them, gave to this or any other of those Courts the general powers of a Court of Chancery. The subjects of the chancery jurisdiction are particularly pointed out, as well as the Courts by which each portion of that power is to be exercised. 1 shall confine my observations to the particular question before us, which relates to the power of this Court on a bill to compel an executor to discover property on which to levy an execution obtained in a suit against that executor as representing the estate of Charles P. Roberts; and also calling upon B. Gerhard, a trustee under a deed made by Charles F. Roberts in his lifetime, to disclose what property he holds under that deed; which deed purports to be a conveyance of all the grantor’s real estate, but does not designate any particular property.
To this bill the defendant demurred as to part of it and put in an answer to other parts. This Court did not hear any argument either on the demurrer or answer; an exception being made as to the jurisdiction of this Court in this case.
To this it was at first answered, that neither party objected to the jurisdiction. The constitution of this state after specifying certain chancery powers says, “ and the legislature shall vest in said Courts such other powers as shall be found necessary; and may from time to time enlarge or diminish those powers, or vest them in such other Courts as they shall judge proper for the due administration of justice.” This would seem to limit the powers of this and the other Courts in matters of chancery jurisdiction, to the cases which have been or may be specified by the legislature. So this has been understood; and we do not believe that the consent of parties or counsel can justify us in going out of the legislative provision. On any other construction of the constitution we might by consent assume the whole power of a Court of Chancery.
The powers given in this particular to the Supreme Court, and the Courts of Common Pleas, are enumerated in the 13th section of an act passed the 16th of June, 1836. Of these this power is not one. Then comes a specification of the powers which may be exercised by the Supreme Court in bank in the city of Philadelphia, and by the Common Pleas of the city and county. Of these the third is “the discovery of facts material to a just determination of issues, and other questions arising or depending in the said Courts;” and the sixth is, “ that in the discovery of facts material to the just
The above provisions seem to apply to issues or questions depending and undetermined in the said Courts: but if by a little stretch they could be extended to the discovery asked in this case, there is another act passed on the same day, which is as follows. Section 9. “ It shall be lawful for the plaintiff in any judgment for the recovery of money obtained in any Court of this commonwealth to have a bill for the discovery of the real and personal estate of the defendant in such judgment.” “ § 10. Such bill may be filed against the defendant in such judgment and against any person having possession of such real or personal estate, or who may owe or be accountable for the same, or may have knowledge of .the same; and shall be filed in the Court of Common Pleas of the county in which such judgment may be; or if the person of whom the discovery may be sought, shall reside out of such county, such bill may be filed in the Court of Common Pleas of the county where such person shall reside.” In the 11th section, the act specifies what shall be set forth in such bill. Of this we need only say that it is not material here.
Although the acts above cited are found under different titles, yet as. they both relate to the administration of justice, though in different stages of the proceeding, they are both to be taken into view in giving the true construction of one of them. They relate to the same matter, viz. discovery; but the one to discovery of facts materia] to the decision of issues, or questions depending in the Courts, and would seem confined to what occurred before judgment. It is not necessary to inquire what might have been the extent of the jurisdiction given to this Court by the act first cited, if it stood alone: because the provision of the act relating to exe-ecutions is specific and precise. “ The bill shall be filed in the Court of Common Pleas of the county in which such judgment may be: or where the defendant in the bill, or person of whom such discovery may be sought, shall reside out of such county, it may be filed in the Common Pleas of the county where such person resides.”
It would not be difficult to give many reasons why this last cited act confines this proceeding to the county Courts of Common Pleas. This Court sits but once a year in a great portion of the state; and it might happen that a long period of time would elapse before the discovery could be obtained. The expense of bringing parties from distant counties to the Supreme Court would be considerable; and many other reasons might be added: but where the provisions of a law are plain and positive, Courts have only to carry them into effect. The bill is dismissed because this Court has not jurisdiction.
Bill dismissed.