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.