Gibson v. Davis

22 Vt. 374

Opinion

The opinion of the court was delivered by

Bennett, J.

We think the declaration is clearly insufficient. The defendant is not, as appears from the record, as set up in the declaration, fixed with any debt, duty, or obligation, as trustee, by the judgment of Justice Leland, upon which a scire facias could be properly grounded. All that the record shows is, that the plaintiff recovered a judgment against the defendant, as the trustee of Clark. It should appear, for what the trustee was made chargeable. Without this, there can be no certainty in the judgment, or the declaration.

Besides, a writ of scire facias is a judicial writ, and issues only from the court, in which the judgment was rendered ; and it is not regarded as an original suit, but is, in one sense, a continuation of the former action; and when an execution is obtained, it is for the purpose of executing the original judgment. I am not aware of any statute provision, which will authorize the enforcing of a judgment rendered by one justice of the peace, by means of a scire facias brought before another justice; and none has been referred to by counsel, upon which they have relied.

In the case of Rice et al. v. Talmadge & Tr., 20 Vt. 378, where the trustee had been adjudged chargeable for specific articles of property, it was held, that such a determination could not serve as a foundation for a scire facias in favor of the creditor against the trustee, and that the only mode, in which such a judgment can be enforced, is that pointed out by the statute. We have no occasion to decide the question, whether a judgment could be enforced against a trustee by a scire facias, in a case where he had been adjudged chargeable for a specific sum of money, — though I apprehend, there would be found some difficulties in the way of such a proceeding.

The judgment of the county court is affirmed.