Roberts v. Knight
Supreme Judicial Court of Maine
On Exceptions to the ruling of Hathaway, J. This was an action of scire facias against the defendant as____ trustee of one McDonald. The defendant demurred to the writ, and the demurrer was joined. The presiding Justice overruled the demurrer, and adjudged the declaration to be good, and the defendant excepted.
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On Exceptions to the ruling of Hathaway, J. This was an action of scire facias against the defendant as____ trustee of one McDonald. The defendant demurred to the writ, and the demurrer was joined. The presiding Justice overruled the demurrer, and adjudged the declaration to be good, and the defendant excepted. The declaration alleged, inter alia, that execution was i'ssued against McDonald as principal and the defendant as trustee, Nov. 14, 1857 ; that an officer made demand upon the defendant, Dec. 10, 1857; and, on the same day, the officer made his return on said execution, that the…
1Opinion of the Court
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…
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