Glover v. Heath

3 Mass. 252

Opinion

By the Court.

The names of all the persons, whose names were endorsed on the original writ, and for whose use executions were awarded, ought to have been inserted in the scire facias.

The writ was amended by consent, and the cause stood con tinned to this term. The errors assigned were, that two of the persons, for whose use execution was awarded, were dead at the time of rendering the judgment.

To the errors thus assigned the defendant in error demurred, and the plaintiff joined in demurrer.

By the Court.

In the present case, the legatees producing no

decree for the payment of their legacies, nor any judgment of any court, by which they are ascertained, the former judgment in awarding execution is erroneous, and must be reversed. But the Court here will render the judgment, which ought to have been rendered in the original suit.

T. Williams, for the plaintiff in error (1).

The judge of probate must have judgment for the penalty; ana as the plaintiff in error has refused to account upon oath for the personal estate of the testator, which he has received, the judge of probate must have execution for the amount of the personal estate, as it stands in the inventory, to recover the same for the use of ail persons interested therein.