Sargeant v. Andrews

• Decision Date: 01 June 1824
• Citation: 3 Me. 199
• Parties: SARGEANT v. ANDREWS & AL
• Court: Maine Supreme Court

3 Me. 199

SARGEANT v. ANDREWS & AL

Supreme Judicial Court of Maine, Penobscot

June, 1824

THIS was assumpsit, on a written promise of the defendants to deliver certain specific articles at the plaintiff's house; and came before this Court upon exceptions taken by the defendants to the opinion of Perham J. in the Court below.

The defendants pleaded in bar, that the defendant, John Andrews had been summoned as trustee of the plaintiff, in a foreign attachment, and that judgment was rendered against him in the Court of Common Pleas at January term 1823, by default, and execution awarded; by which judgment the debt was bound and payable to the plaintiff's creditor.

The plaintiff replied that the execution which issued in that case being returned unsatisfied, the creditor sued out a writ of scire facias against John Andrews, who appeared and submitted himself to examination under oath, pending the present action, and answered that he had no goods, effects or credits of the plaintiff in his hands; and that the Court of Common Pleas, at the June term 1824, adjudged him not trustee of the plaintiff, and he was thereupon discharged; --to which the defendant answered by a general demurrer.

It appeared that after the filing of the plea, this cause had been continued, in order that the scire facias, which was then pending, might be determined; after which the pleadings were closed, as above stated.

Replication adjudged good.

Williamson for the defendants, contended that when this suit was commenced, the plaintiff had no ground of action, his effects in the hands of John Andrews, to the full amount of his claim, being bound by the judgment in the foreign attachment which was then in full force. Stevens v. Gaylord 11 Mass. 265. Jewett v. Bacon 6 Mass. 61. And if not yet no costs were taxable for the plaintiff while the scire facias was pending.

OPINION

Godfrey, on the other side, was stopped by the Court; whose opinion was delivered by MELLEN, C. J.

The plea in bar is good, unless avoided by the replication. The question then is, whether the replication is sufficient. It discloses the fact, that notwithstanding John Andrews, the supposed trustee, was defaulted at the return term, and judgment was then entered against the goods effects and credits of the plaintiff in his hands; still he appeared upon the scire facias and disclosed to the Court that he was not the trustee of the plaintiff, and at...