Austin v. Goodale

Kent, J. It has been decided in this State and in Massachusetts, that scire-faeias will not lie against a trustee, until “ the execution is returned unsatisfied,” and that the return intended by the statute is one made on the return-day, and that, until after such return, no suit against the trustee can be instituted, although a demand had been made on him, and he had neglected or refused to pay over or deliver the property. Roberts v. Knights, 48 Maine, 171; Adams v. Cummiskey, 4 Cush. 420. The point made by the plaintiff in this case is a single one, and that is, that, although the return of the execution was made before the day named in it for its return, yet that the three months in which it was in force had expired before this suit was commenced. An examination of the cases cited, and other cases bearing upon the question, satisfies us that the point is not well taken. The reason why such scire-faeias could not issue is that the law intends that the creditors shall look primarily to the property in possession of the debtors, and that the trustee shall not be called upon, until it is shown by a return of nulla bona that the execution could not be satisfied otherwise during the time it was in force. The statute (R. S., c. 86, § 67) is express, that before scire-faeias can issue, it must be shown that “ the execution is returned unsatisfied.” This court, in Roberts v. Knights, say, “ Until this is done, it is uncertain whether it may not be satisfied by the principal defendant. Nor can this uncertainty be removed until the return-day of the execution. It is only when the officer has used the powers con [114] ferred by the process, during the whole time given to him, that he can return it unsatisfied within the meaning of the statute.” The same principle is stated in the case of Adams v. Oummislcey. The court in that case say, “ The trustee cannot be held liable to a scire-faeias before the return-day, because the execution may be ‘ otherwise satisfied ’ at any time while it remains in force, although he has refused to pay over to the officer, goods, effects, or credits sufficient to satisfy it.” The fact that the three months had expired before suit, cannot take the case out of the principle of these cases. The objection is that the execution was not in the hands of an officer or party for three months, but was returned while in force, and that the return contemplated by the statute could only be made on or after the return-day. The date of the writ of scire-f acias is not the material point, but the date of the return. Exceptions sustained. Demurrer sustained. Judgment for defendant. Appleton, C. J.; Walton, Barrows, Daneorth, and Tapley, JJ., concurred.