Crosby v. Wentworth

48 Mass. 10

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1843
• Status: Published

Opinion

Shaw, C. J.

The defendant having been defaulted, the question is, upon the facts agreed, what judgment shall be rendered ? The court are of opinion, that the bankrupt law does not apply to the case; its operation being to bar actions for the recovery of debts only. But this is a summary process, in nature of a possessory action, and is founded on an alleged unlawful and tortious holding of the possession of lands or tenements, against the right of the plaintiffs.

As to the effect of the plaintiffs’ entry and taking possession of the premises, pending the appeal, the court are of opinion, that if the defendant could take advantage of it at all, it must be by a plea puis darrein continuance; and not having been so pleaded, at the first term after the entry was made, it is no bar to a judgment. The rule upon which the defendant relies is strictly technical; and a technical answer therefore is sufficient. As to the intervening damages, they are not settled by this judgment ; and the whole question as to the amount will be open on a scire facias upon the recognizance, if the plaintiffs should have occasion to resort to it.

Judgment for the plaintiffs for possession, and for their costs