Forbes v. Tiffany

¶1Scire facias on the transcript of a justice’s judgment for execution against real estate.

¶2The scire facias alleges that Osmond C. Tiffany, Elias B. Long, and William W. Bym, merchants trading under the firm name of O. C. Tiffany, Co., recovered a judgment before a justice, under their firm name, against Angus Forbes.

¶3*205The defendant in the Court below filed five pleas, upon three of which issues were formed. The other two were, on motion, rejected. The rejection of these pleas is the error complained of.

¶4The first plea alleges that Osmond C. Tiffany, Elias B. Long, and William W. Bym, were not, at the time of the recovery of the judgment before the justice, or at any other time, partners under the name of O. C. Tiffany, Co., nor did they, as partners, or otherwise, recover the said judgment, &c.

¶5The second plea alleges that Osmond C. Tiffany, Elias B. Long, and Wiliiam W. Bym, were not, at the time of the commencement of this suit, (nor are they yet), the owners of said judgment, as partners under the name of O. C. Tiffany, Co., or otherwise.

¶6The scire facias is an original suit, founded on the judgment of the justice of the peace. In the writ, which, in this proceeding is the declaration, it is alleged that Osmond C. Tiffany, Elias B. Long, and William W. Bym, partners, recovered a judgment before the justice, under their partnership name of O. C. Tiffany, Sp Co., and that the judgment belongs to them as such partners. The pleas were not sworn to, and on that ground were rejected. They, in effect, denied that the plaintiffs, as partners, as they alleged in the scire facias, had recovered and were the owners of the judgment before the justice. They should have been verified by affidavit. There was no error in their rejection.

¶7The issues joined were found for the plaintiff below, and he had judgment of execution.

¶8The plaintiff in error contends, that inasmuch as it was shown in proof that one Groves was the owner of the judgment at the time of the issuing of the scire facias, the proceeding to enforce it should have been in his name, and not in the name of the original judgment-plaintiffs.

¶9Section 15, art. 2, of c. 31, R. S. 1843, provides that in case of the assignment of a judgment, execution shall issue in the name of the original plaintiff.

¶10There was no impropriety in the writ, the object of which was to establish the lien of the original judgment and enforce its execution, being in the name of the party jn whose name the execution is to be issued.

¶11It was perhaps proper, under the provisions of the statute, that the clerk should have indorsed upon the writ that it was for the use of the assignee. But his omission to do so cannot, in any way, injure the judgment-defendant. It does not affect his rights. It was an omission of which the assignee alone had a right to complain. (1)

¶12The judgment is affirmed, with 5 per

¶13cent, damages and costs.