Roberts v. Knight

Jul 1, 1859
Reporters:
Before:
Davis

The opinion of the Court was drawn up by

Davis, J.

The only question presented by the pleadings is this — can ‍‌‌​‌‌​​​‌‌​‌‌​‌​​‌​‌‌​‌​​​​​‌​​​‌‌​‌​​​​​​‌​‌​​​‌‌‌‌‌​‌‌‌‌​‌‌‌​‌‌​​​​‌​​​​‌‌‌‌‌‌​‌‌​​‌‌‌​​‌​‌‌​​‍a writ of scire facias be lawfully issued against one who has been adjudged a trustee, before the return day of the execution against the principal defendant ?

*172In this case, a demand was duly made upon the defendant, and the execution returned ‍‌‌​‌‌​​​‌‌​‌‌​‌​​‌​‌‌​‌​​​​​‌​​​‌‌​‌​​​​​​‌​‌​​​‌‌‌‌‌​‌‌‌‌​‌‌‌​‌‌​​​​‌​​​​‌‌‌‌‌‌​‌‌​​‌‌‌​​‌​‌‌​​‍before the writ of scire facias was sued out. But, the return day of the execution did not occur until February 14th, 1858; and the writ was issued December 29th, 1857.

Before such a writ can be sued out, the statute requires, that ‍‌‌​‌‌​​​‌‌​‌‌​‌​​‌​‌‌​‌​​​​​‌​​​‌‌​‌​​​​​​‌​‌​​​‌‌‌‌‌​‌‌‌‌​‌‌‌​‌‌​​​​‌​​​​‌‌‌‌‌‌​‌‌​​‌‌‌​​‌​‌‌​​‍the “execution be returned unsatisfied.” R. S., c. 86, § 67. Until that is done, it is uncertain whether it may not be satisfied by the principal defendant. Nor can this uncertainty be removed until the return day of the execution. ‍‌‌​‌‌​​​‌‌​‌‌​‌​​‌​‌‌​‌​​​​​‌​​​‌‌​‌​​​​​​‌​‌​​​‌‌‌‌‌​‌‌‌‌​‌‌‌​‌‌​​​​‌​​​​‌‌‌‌‌‌​‌‌​​‌‌‌​​‌​‌‌​​‍If, in fact, returned before, it may be re-issued; as it is only when the officer has’ used the power conferred by the process during the whole time given to him that he can return it unsatisfied, within the meaning ‍‌‌​‌‌​​​‌‌​‌‌​‌​​‌​‌‌​‌​​​​​‌​​​‌‌​‌​​​​​​‌​‌​​​‌‌‌‌‌​‌‌‌‌​‌‌‌​‌‌​​​​‌​​​​‌‌‌‌‌‌​‌‌​​‌‌‌​​‌​‌‌​​‍of the statute. Adams v. Cummiskey, 4 Cush., 420.

Demurrer sustained;• — Declaration adjudged bad; —

Judgment for the defendant.

Tenney, C. J., Rice, Appleton, Goodenow and Kent, JJ., concurred.