Bean v. Parker
Massachusetts Supreme Judicial Court
This was a Scire Facias against the two defendants, as sureties upon a bail bond, alleged to have been made by them upon the arrest of one Aiken, in a suit brought by the plaintiff against Gilmore Sf Aiken, partners in trade.
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This was a Scire Facias against the two defendants, as sureties upon a bail bond, alleged to have been made by them upon the arrest of one Aiken, in a suit brought by the plaintiff against Gilmore Sf Aiken, partners in trade. The declaration alleges a judgment of this Court, recovered against the said Gilmore &f Aiken; an execution issued thereon, with non est inventus as to Aiken; and that the defendants became bail for him, who, it is alleged, was arrested on the original writ; and all this is averred to appear of record. [ * 592 ] * Eight pleas in bar of execution were made by the…
1Opinion of the CourtParker, C. J.
We think the third and fourth pleas cannot be sus[*601 ] tained, because they deny * the return of the officer upon the writ; which is matter of record, and is conclusive between these parties. The arrest could not be proved but by the return of the officer, nor can it be disproved by parole when it appears by the return to have been made. If this return be not true, the defendants’ remedy is by action against the officer or the sheriff, for a false return. So, also, if a bail bond had been given in common and proper form, it would admit, as a fact, the arrest of the principal; and the sureties…
2Cases cited4 opinions
- Slayton v. Inhabitants of ChesterMassachusetts Supreme Judicial Court · 1808
- Bott v. BurnellMassachusetts Supreme Judicial Court · 1814
- Eastabrook v. HapgoodMassachusetts Supreme Judicial Court · 1813
- Bott v. BurnellMassachusetts Supreme Judicial Court · 1812
3Cited by71 opinions
- Carver v. JacksonSupreme Court of the United States · 1830
- Empire State Surety Co. v. Carroll CountyCourt of Appeals for the Eighth Circuit · 1912
- Fauci v. MulreadyMassachusetts Supreme Judicial Court · 1958
- Russell v. AnnableMassachusetts Supreme Judicial Court · 1871
- Larkin v. RobbinsNew York Supreme Court · 1829
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