
    Mahan v. Power.
    Justice’s Judgment—Tkanscbipt.—A plea to a scire facias on a jnaiice’s. transcript for execution against real estate, that it was not made known to the justice that the defendant had such estate, is bad on general demurrer.
    Same—Evidence.—The order book of the Circuit Court is evidence of the record of such transcript in that Court, but- not of the execution and it? return described in the scire facias.
    
    EEROE to the Bush Circuit Court.
   Dewey, J.

Scire facias on a transcript of a justice’s judgment, &c., for execution against real estate. The writ alleges *that a transcript of the proceedings before the. justice, including a statement of the issuing of an execution and a return thereof of “no goods found,” duly certified, was filed and recorded in the Circuit Court.. Pleas: 1, “There was no such record of the said supposed recovery and proceedings as in said scire facias is alleged.” 2, “No. execution against the goods and chattels of the defendant was issued upon the judgment specified in said scire facias, and returned Dio property found,’ as in said scire facias is alleged.” 3, “The said supposed transcript in said scire facias described was not made out, certified, filed, and recorded in manner and form,” &c. 4, “It was not made known to the justice that said defendant had lands and tenements.” There were issues upon the three first pleas. A general demurrer to the fourth was correctly sustained. Trial by the Court, and judgment for the plaintiff.

The plaintiff produced the order book of the Circuit Court to prove the transcript of the justice’s judgment, and proceedings, as set forth in the scire facias; the defendant objected to its admissibility, but the objection was overruled, and the evidence received. We think there was no error in this. The first and third pleas put in issue the existence of a duly certified transcript of the justice’s judgment, and also its being filed and recorded in the clerk’s office. The statute authorizes transcripts of justices’ judgments to be entered on the order book of the Circuit Courts. R. S., 1838, p. 135. This renders tlie transcripts a matter of record in that Court; and the order book is competent evidence of such record.

J. S. Newman, for the plaintiff.

G. £. Tingley, for the defendant.

The second plea denies the existence of the execution and of its return, which the scire facias alleges were certified by the justice of the peace. No other evidence of the execution and return was given except the order book of the Circuit Court. As the statute does not authorize the justice’s certificate of the issuing of the execution and of its return to be recorded in the Circuit Court, the order book was not competent evidence to establish the execution and return. And we have decided at this term, in the case of Henkle v. German, that when the existence of the execution is denied by plea, the original, or a certified or sworn copy must be produced. The plaintiff, therefore, did not sustain the issue *on the second plea, and the Court erred in rendering judgment in his favour.

Per Curiam.—The judgment is reversed with costs. Cause remanded, &c.  