Dailey v. Coleman

Ames, J. The defendant was adjudged a trustee in the orig mal action. He has not paid over to the officer upon demand anything whatever to be applied in satisfaction of the execution. The period when it should have been returned had long since expired, and there is no suggestion that it had been satisfied in any other manner. According to the strict letter of the statute, fill the conditions which it prescribes, as necessary preliminaries [66] to the issue of this writ of scire facias against the trustee, had been fulfilled. Gen. Sts. c. 142, § 39. Cheney v. Whitely, 9 Cush. 289, 291. It is true that the regular and appropriate evidence of the refusal or neglect of the trustee, when called upon, to pay upon the execution, is the officer’s return. Where the return is lost or destroyed, so that it cannot be produced, secondary evidence of its contents may be received. In the case at bar, there was no such return, and we must assume that it was found as a fact in the case that the execution was lost or destroyed, so that no return can now be indorsed upon it. But if the fact which might be proved by a formal return upon the execution, if it had not been lost, can legally be proved in any other mode, the evidence admitted at the trial was sufficient for that purpose. It was decided in Adams v. Cummiskey, 4 Cush. 420, that, although the provisions of the Rev. Sts. c. 109, § 38, which are substantially identical with the above cited section of the Gen. Sts., did not in terms require that the execution must be returned before the plaintiff could lawfully sue out a writ of scire facias against the trustee, yet his default could only be shown by the officer’s return upon the execution, and such return was an indispensable preliminary. But that was not a case in which the execution had been lost so that it could not be produced, and no question as to the admissibility of secondary evidence was considered. It was an attempt to maintain a writ of scire facias, issued upon a return made before the execution had become returnable. The writ was sued out in that case within less than thirty days after the date of the execution, and the court held that the scire facias was unseasonably and improperly issued, because the execution, being still in force notwithstanding such premature return, might be otherwise satisfied without requiring the funds held by the trustee. There was nothing in the case that called upon the court to decide what circumstances would excuse the want of a formal return, or what would be the effect of proof that the execution had been lost or destroyed, so that such a return had become physically impossible. The only conclusion that can be said to have been established by that decision is that an unseasonable and insufficient return will not justify the issue of a scire facias while the execution is in force and not yet returnable. [67] In Patterson v. Patten, 15 Mass. 473, which is cited on behalf of the defendant, no execution had ever been issued against the trustee, and the case differs widely from that under consideration. Our conclusion is, that neither the terms of the statute, nor any construction which has been put upon them by the court, make it imperative upon us to hold that the disappearance of the execution, whereby it has become impossible that it can be formally returned, shall be necessarily fatal to the creditor’s title. Within the spirit of the rule allowing the admission of secondary evidence where, without fault on the part of the party offering it, the original evidence cannot be had, we think the testimony of the officer was properly admitted. 1 Greenl. Ev. § 84. Nelson v. Boynton, 3 Met. 396. Ryan v. Merriam, 4 Allen, 77. Commonwealth v. Roark, 8 Cush. 210. Pruden v. Alden, 23 Pick. 184. Pease v. Smith, 24 Pick. 122. Exceptions overruled.