Wilson v. Green

36 Mass. 433

• Court: Massachusetts Supreme Judicial Court
• Decided: October 21, 1837
• Status: Published

Opinion

Per Curiam.

The defendant contends that the plaintiff could not sue out scire facias as of right, but should first petition the court for relief, and relies on the case of Kendrick v. Wentworth, 14 Mass. R. 57. That case depended upon St. 1785, c. 6, which applied only to real estate, and which authorized relief only by the court, on petition. We think the Revised Statutes have altered this, and give a writ of scire facias as of right, even in case of real estate. Revised Stat. c. 73, § 21.

But whether this be so or not, in regard to real estate, the Court are of opinion, that both by the statute of 1835, and the Revised Statutes, the remedy is given as of right, whenevei any execution shall be returned satisfied, by the sale of any personal property, which shall afterwards appear not to have belonged to the judgment debtor. This is the plaintiff’s case, and we think he is entitled to sue out his writ of scire facias without first being authorized on application by petition.