Davis v. Whithead , 83 Mass. 276 ( 1861 )

Bigelow, C. J.

The declarations of the defendant relevant to the issue were clearly competent. It does not appear that any inquiry was made of him concerning immaterial facts calculated to prejudice his defence. All that was necessary for the plaintiff to prove in order to maintain his suit was the “ avoidance or inability ” of the plaintiff in the original suit to pay the costs awarded against him in that suit. Rev. Sts. c. 90, §§ 10, 11. This was sufficiently proved by the officer’s return indorsed on the execution. It was not necessary to show an arrest of the body of the original plaintiff, nor that the execution had been returned into the clerk’s office. Exceptions overruled.