Niles v. Drake
Massachusetts Supreme Judicial Court
Scire Facias. The writ set forth, that a judgment was recovered in this Court, against Charles Starbuck and others ; that a writ of execution issued thereon was returned non est inventus, and otherwise in part unsatisfied ; that Starbuck did not abide the judgment ; and that Ethan Earle, now living, and Shepherd Leach, then living but since deceased, were bail for Starbuck.
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Scire Facias. The writ set forth, that a judgment was recovered in this Court, against Charles Starbuck and others ; that a writ of execution issued thereon was returned non est inventus, and otherwise in part unsatisfied ; that Starbuck did not abide the judgment ; and that Ethan Earle, now living, and Shepherd Leach, then living but since deceased, were bail for Starbuck. Wherefore the writ commanded, that Earle, and that Lincoln Drake and others, who were the executors of Loach, the other bail, should be notified to appear and show cause why execution should not be had against Earle and…
1Opinion of the Court
Putnam J.
delivered the opinion of the Court. A scire facias against bail is a new action, and not a continuation of the original action of the plaintiff against the principal. 6 Dane’s Abr. 463, and cases cited. “ It is a distinct action, but is always a judicial writ.” A release of all actions may be pleaded by the defendant in bar to scire facias. Lit. § 505, Co. Litt. 290 b. The bail bond here is not a part of the record, as the recognisance entered into by the bail is considered in England. The remedy for the plaintiff, is by scire facias under the St. 1784, c. 10 ; and an action of debt…
2Cases cited2 opinions
- Smith v. Indianapolis, Peru & Chicago Railway Co.Indiana Superior Court · 1871
- Parsons v. PlaistedMassachusetts Supreme Judicial Court · 1816