Lewis v. Oliver

Decided November 26, 1825

Indiana Supreme Court · decided 1825-11-26

— Scire facias to revive a judgment. In September, 1819, the plaintiff obtained a judgment against Oliver, Jacobs, and E. John, for 1,500 dollars; and, in December following, R. John entered himself replevinsurety on the record. The scire facias averred these facts, and required the judgment-debtors and their replevin-surety to show cause why execution should not issue against them. Demurrer to the scire facias, and judgment for the defendants.

Decided 1825-11-26

Blackford, J.

¶1This judgment must be reversed. By the statute of 1817, p. 44, under which this debt was replevied, a joint execution may issue within the proper time against the principal and surety. It follows that when, by the lapse of time, a presumption has been raised in favour of'the debtors, the scire facias which issues to defeat that presumption, cannot he objected to for praying that execution may issue against the same, parties that were liable before such presumption existed.

Per Curiam.

¶2The judgment is reversed with costs. Causé, remanded, with directions to permit the defendants to withdraw their demurrer, &c.