250 Pa. 422 | Pa. | 1915
Opinion by
Charlotte Thompson Ames Brown, a resident of Massachusetts, died there in 1913, and her will was admitted to. probate in Suffolk County, that state. Letters testamentary were issued by the probate court of the said county to Walter I. Badger, whom the testatrix had named as her executor. She left certain real estate in Northampton County, this State, which was seized by the sheriff under a writ of foreign attachment issued at the instance of the East Bangor Consolidated Slate Company, in which her executor was named as defendant. On his motion the writ was subsequently quashed and all proceedings under it set aside, for the reason that such process does not lie against a foreign executor. The correctness of this ruling is the sole question for our determination.
Foreign attachment is a purely statutory proceeding, and, being in derogation of the common law, the provisions of the statute authorizing its issue are to be strictly construed. The writ “may be issued against the real or personal estate of any person not residing within this Commonwealth, and not being within the county in which such writ shall issue at the time of the issuing thereof,......in all actions ex contractu, and in actions ex delicto for a tort committed within this Commonwealth” : Act of June 21,1911, P. L. 1097. These words clearly show that a writ of foreign attachment may issue only against a living person against whom a claim is made for breach of contract by him or for a tort committed by him within this State. The affidavit of the appellant’s cause of action avers that the tort of which it complains was committed by the decedent some years before her death. The act contemplates a breach of contract or a tort committed by a defendant having a residence somewhere outside of the Commonwealth; dead persons have no legal residence anywhere. In dissolving the attachment the learned court below followed the rule announced as early as 1790, in McCoombe v. Dunch,
Appeal dismissed at appellant’s costs.