
    Royal Wilson vs. Job Hatfield & others.
    Middlesex.
    January 9. — 10, 1877.
    Colt & Ames, JJ., absent.
    An action may be maintained upon a judgment, although an execution issued thereupon has not been returned, in the absence of plea or proof of payment or satisfaction.
    Contract on a judgment recovered by the plaintiff in the Superior Court. Answer, a general denial.
    At the trial in the Superior Court, before Bacon, J., the plaintiff put in evidence the docket record of the proceedings in the action in which the judgment was recovered, and also the papers in the case, the record not having been extended. It appeared that execution had been issued on the judgment, but not returned into court; but there was no evidence introduced by the plaintiff to show what had been done by virtue of the execution, or of any proceedings thereon, nor was any evidence introduced to show its loss or to give any account thereof. The judge thereupon ruled that the plaintiff could not recover; and the plaintiff alleged exceptions.
    
      B. W. Whitney, for the plaintiff.
    
      J. Cutler, for the defendants, submitted the case without argument.
   By the Court.

The defendants not having pleaded payment or satisfaction, nor appearing to have offered any evidence thereof, the ruling below that the plaintiff could not recover in this action (which is evidently not a finding or conclusion of fact, but a decision that the plaintiff could not recover as matter of law) was erroneous. O'Neal v. Kittredge, 3 Allen, 470. Linton v. Hurley, 114 Mass. 76. Exceptions sustained.  