Brattle v. Willard

U.S. District Court

Decided May 15, 1798

U.S. District Court · decided 1798-05-15

At law. This was a scire facias. It recited the judgment obtained by the plaintiff [Thomas Brattle], as executor [of W. Brattle], against the estate of the defendant’s testator; the suing out of execution; the marshal’s return of nulla bona. It then suggested waste by administrator, and concluded with a prayer for execution against the administrator de bonis propriis.

[Demurrer sustained · Decided 1798-05-15

¶1THE COURT were divided in opinion.

PICKERING, District .Judge,

¶2held the plea a good bar, and CUSHING, Circuit Justice,' the contrary. They gave their Teasons at length; in substance using the same arguments as the counsel had used.

¶3The cause was, of course, continued till May term, 1798; when it was again argued,by Mr. Livermore, for the defendant, and Mr. Parsons, for the plaintiff.

¶4THE COURT, consisting of Circuit Justice ELLSWORTH and the District Judge, were divided in opinion, Judge PICKERING adhering to the opinion he gave before, and the Circuit Justice agreeing in opinion with the former circuit judge. Judgment according to law was given in favor of the demurrer, and the plaintiff, accordingly, had his execution against the administrator de bonis propriis. See New Hampshire Strafford Bank v. Mellen, Smith (N. H.) 385.