Priest & Fricke v. Whitelow

1 Mo. 259

• Court: Supreme Court of Missouri
• Decided: November 15, 1822
• Status: Published

Opinion

M’Girk, C. J.,

delivered the opinion of the Court.

This was a sci. fa. on a hail bond, entered into by¿Briest and Ericke, for one Strange. The bond was taken to John Hays, Sheriff j the sci. fa. is in the name of Whitelow. To this sci. fa. there was a demurrer, because the action should have been in the Sheriff’s naipe, to the use of Whitelow. Th.e Court decided the action well brought, and gave judgment for plaintiff. This judgment is erroneous; because, to enable Whitelow to bring the action in his own name, he should have taken an assignment of the bond, or, he might have used the Sheriff’s name to his use, neither of which has been done. It was also alledged, 1hat a sci. fa. on this bond, would not lie. It has been decided by this Court that it will lie; so that, on this point, there is no error. It vva3 also alledged, thpt Strange should have been sued also, This is not error; for there was already an execution against him, and to have another, by sci. fa., would not be advancing the plaintiff’s remedy. Some other point? >vere made, but not necessary to be noticed.

The judgment is, therefore, reversed, with costs,