Neal v. Washburn ( 1844 )

The opinion of the Court was by

Shepley J.

This is a writ of scire facias against the defendant as indorser of a writ in favor of R. M. N. Smyth and others against the plaintiff, who recovered a judgment against them Tor costs, on July 3, 1840. Execution issued thereon September 20, 1840, but it does not appear to have been in the hands of an officer for service. It was returned in no part satisfied, and an alias execution issued on August 3, 1841, on which Smyth was arrested on October 1, 1841; and released upon giving a bond according to the provisions of the statute.

It has been decided, that the party must be considered as guilty of laches, if he does not show, that the return of the officer, upon which he would rely to charge an indorser of a writ, was duly made upon an execution issued within one year after judgment. Wilson v. Chase, 20 Maine R. 385. The plaintiff in this case fails to establish that, fact, and the indorser is discharged.

Exceptions overruled.