Butler v. Haynes

Richardson, C. J, The issuing of the execution against Eastman after his death, was an irregularity, for which it might, have been set aside ; and the court would have been bound to set it aside, had Butler made application ; in which case he would have been discharged as endorser. 6 D. & E. 368, Heapy vs. Paris.—2 Tidd's Practice 915, 1044. But Butler could not call in question the regularity of the execution in the scire facias brought against him. 13 Johnson 378, Scott vs. Shaw.—16 ditto 117, Gillespie vs. White.—2 N. H. Rep. 491, Blanchard vs. Goss. The question then is, was Butler bound to procure the execution against Eastman to be set aside, and thus discharge himself from his liability as endorser of the writ ; and has he discharged Haynes by his neglect in this particular ? In the first place, it does not appear that Butler was apprized of the irregularity. Had the execution issued before the death of Eastman, his death would not have discharged Butler; because in that event, the officer might have returned the execution not satisfied, which is all the statute requires. If Butler was liable as endorser of the writ, he was under no obligation to stand trial, in order to entitle him to an action against Haynes (4 Johnson 461, Sluby vs. Champlin.—13 ditto 58, Maurie vs. Heffernon); and if he paid the money bona fide, and without a knowledge of the irregularity in the issuing of the execution, his claim against the defendant is founded in strong equity. And we are of opinion, that although the execution issued irregularly, it was not a nullity, and that its validity cannot, be called in question collaterally in this action. 2 N. H. Rep. 491, Blanchard vs. Goss.—3 Caine's Rep. 267.—6 D. & E. 368. [23] It appears in this case, that Butler endorsed the writ at the request of the defendant, that judgment was rendered against Eastman for costs, and that an execution issued against Eastman and was returned “ non est inventus” From these facts, it. appears, that Butler was liable, and it is not disputed that he paid the costs. We are of opinion, that the plaintiff is entitled to retain his verdict, and that there must be Judgment for the plaintiff.