Kendrick v. Wentworth

14 Mass. 57

Opinion

Where a judgment creditor has extended his execution upon land not belonging to the judgment debtor, he may not sue out a scire facias, under the Stat 1785, c, 6, without a previous application to the court from whence the execution issued.

There were several pleas to the scire facias, which resulted in demurrers. When the cause came on for argument upon the demurrers, it was suggested by the defendant’s counsel, that the writ had been sued out by the plaintiff, without application to the Court, and that the defendant had some equitable ground, which he could have addressed to the discretion of the Court, had such application been made. —And upon consideration it was decided by the Court that a scire facias under this statute was not a writ of right, which the party may take from the clerk’s office at his pleasure; but he must first make application to the Court as the statute has prescribed ; and the Court will, if they see cause, order notice to the judgment debtor, before the writ shall issue; or they will refuse the writ, if it does not appear that substantial justice requires that it should issue.

The writ was dismissed, as having issued improvidently.