Brackett v. Winslow
Massachusetts Supreme Judicial Court
This was an action of audita querela, to be relieved and discharged from an execution, which issued on the 3d of March, 18)9, in favor of the defendants, against the plaintiff and one John Peters. Trial was had on the general issue, before Jackson, J., and the following facts were proved or admitted.
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This was an action of audita querela, to be relieved and discharged from an execution, which issued on the 3d of March, 18)9, in favor of the defendants, against the plaintiff and one John Peters. Trial was had on the general issue, before Jackson, J., and the following facts were proved or admitted. The present defendants, at the November term of this Court, in 1818, recovered judgment against the plaintiff and the said Peters for 727 dollars, 85 cents, damages, and 22 dollars costs. The original execution, which was issued thereon, was delivered to one Luke Baldwin, a deputy sheriff for…
1Opinion of the Court
Parker C. J.,
delivered the opinion of the Court.
Whether the default in this action was rightly entered or not, depends upon the question, whether the judgment upon which the *128execution issued, whereby the plaintiff was committed, was satisfied before the institution of this suit; for if it was, the execution must have lost its power, having no judgment to rest upon. We think it immaterial whether payment was made before or after the issuing of the alias execution. If before, the execution issued improvidently or fraudulently, and would be therefore void ; if after, its virtue was gone, and the…
2Cited by12 opinions
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- Comstock v. GroutSupreme Court of Vermont · 1845
- Radclyffe v. BartonMassachusetts Supreme Judicial Court · 1894
- Holmes v. DayMassachusetts Supreme Judicial Court · 1871
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