Jenney v. Jenney
Massachusetts Supreme Judicial Court
This was an action of debt on bond, given by the defendant, as surety with one Gerrish, to the plaintiff, a deputy sheriff of the county of Bristol. Upon oyer of the bond, with its condition, it appeared to be a replevin bond, in the form prescribed by the statute, * with the condition that Gerrish should prosecute the suit.
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This was an action of debt on bond, given by the defendant, as surety with one Gerrish, to the plaintiff, a deputy sheriff of the county of Bristol. Upon oyer of the bond, with its condition, it appeared to be a replevin bond, in the form prescribed by the statute, * with the condition that Gerrish should prosecute the suit. The defendant, in his plea in bar, sets forth the entry of the action at the Court of Common Pleas, to which it was returnable, and a judgment of that court, from which an appeal was regularly claimed by the said Gerrish, plaintiff in replevin, and allowed. He then avers…
1Opinion of the CourtParker, C. J.
The question to be decided in this case is, whether the matter contained in the plea is a sufficient bar to the action. And we are satisfied that it is. For although, by law, the cause of action survived, yet we think that it was not a duty of the administrator of the plaintiff in replevin to enter and prosecute the action at the Supreme Judicial Court, until summoned thereto by the defendant in that suit; who might by process have compelled the administrator to come in, or, in case of his default, after notice, he would have had judgment for a return of the chattels replevied, and would have…
2Cited by4 opinions
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