Sturgis v. Reed

Mellen C. J.

By the 19th section of the Act of 1821, ch. 52, (being a transcript of the law now in force in Massachusetts,) upon the facts stated in the declaration, the plaintiff is entitled to maintain this action, his case being precisely within its provisions ; unless the order of the Circuit Court of Common Pleas passed at December term, 1821, setting aside the execution after it was returnable, and actually returned in the manner stated in the declaration, has operated to divest the plaintiff of his cause of action, which was good when he commenced the same in March, 1821. — This order of Court which is the only material fact stated in the plea in bar was passed for reasons set forth inihe defendant’s petition to said Circuit Court of Common Pleas: but the plea does not state what those reasons were. The plaintiff, before demurring, sets out the petition at large; so that the reasons and grounds for the Court’s proceeding are now before us on the record. — The record discloses nothing which shows that the execution on which the return was made, had issued irregularly or improperly. It is true it appears that the estate of the intestate was represented insolvent before the defendant assumed the defence, and that it actually is insolvent ; — still as there was no averment in the defendant’s plea in the former actions, that the estate' was under a representation of insolvency nor any motion made and entered on the docket after judgment was rendered, for a stay of execution on account of such insolvency, the clerk was authorized and it was his duty to issue execution in the manner before stated It a>cts issued, and by virtue of it, the officer to whom it was delivered, demanded payment of the administrator, and could not obtain it or find property of the deceased wherewith to satisfy it; and made a regular return thereon to this effect and returned the precept to the clerk’s office. — Thus the execution was functus oficio — and the plaintiff’s right of action, founded on this return, had accrued and become perfect. It is not denied but that ¡he Court, on the abovementioned petition, might legally have passed an order that no further execution should be issued on such judgement, and thus far protect the defendant from the operation of the judgment. But we do riot perceive how the order could have a retrospective effect and deprive the plaintiff - of his rights, without any fault on his part; and, as it seemsj without a hearing. There are many cases where an execution may be set aside; but those cases are where it has been irregularly issued or executed. 4 Mass-. 483. Suppose that in this case the executioh had been in due form extended on the real estate of the intestate, and regularly recorded in the registry of deeds; and that, instead of this scire facias, the plaintiff had brought a writ of entry to obtain the possession : Would the present plea, stating that the Court had set aside the execution for the above reasons, long after the extent was completed, be any legal bar to such actions ? The question admits of but one answer. For the same reason we think the plea is bad wheii offered as a bar in this "action The decision of this cause may subject the defendant to some personal loss or liability; but it is owing to his own inattention. When he assumed the defence of the original action, he should have disclosed the representation of insolvency to the Court, either by plea, or motion for a continuance or a motion on record to stay execution on account of the insolvency. — Having done neither in due season, the plaintiff has a right to the advantage he has gained by his vigilance. — There must be judgment entered that the

Plea in bar is insufficient.