
    Moses Hamilton versus Moses Lyman.
    Where one of two or more judgment creditors dies after judgment, and before execution issues, the execution ought regularly to issue in the name of all the creditors; but if it issue in the name of the survivors only, it is not therefore void. — Such survivors are not put to their scire facias for such cause only.
    Trespass for an assault and battery, and false imprisonment. The defendant pleads the general issue, which is joined; and also in bar, that at the Supreme Judicial Court, holden at Alfred, in and for this county, on the last Tuesday of October, 1807, Abigail Lyman and the defendant recovered judgment against the plaintiff, for the possession of a certain tract of land described, and costs of suit taxed at 29 dollars 79 cents, unless the said H. should, within two months from, &.c., pay the said Abigail and the defendant the sum of 551 dollars 51 cents, being the amount of the principal and interest due on the mortgage deed declared on; which judgment he avers to remain in full force; and that, on the 15th of August, 1809, it was unsatisfied for said costs only; and the said Abigail having died after the rendition of the judgment, and before the day last mentioned, the defendant on that day purchased
    
      out of the clerk’s office a jpluries execution, in which was stated the death of the said Abigail since the rendition of the judgment, * directed to the sheriff or his deputy, and delivered the same to a deputy sheriff, to be executed and returned according to law. The plea then sets forth the exe cution in hese verba, in which, after the recital of the judgment, there is a suggestion of the death of the said Abigail after the rendition of the judgment, and a command to the sheriff to levy the money for which the judgment was rendered, with two dollars and forty cents more for this and three former writs, and to pay it to the said Moses Lyman. There is then set forth the return of the deputy sheriff, that for want of goods, &c., he had committed the said Hamilton to the jail in Alfred. And the plea concludes with stating that the plaintiff was imprisoned, kept, and detained, under the said execution, for the time mentioned in the declaration, as it was lawful, &c.
    To this plea the plaintiff demurs generally, and the defendant joins in demurrer.
    
      Holmes,
    
    in support of the demurrer, argued that the arrest and imprisonment were illegal, the execution being void. The statute of 1784, c. 28, § 1, prescribes the form of execution. It is to issue only in favor of the party recovering the judgment. In this execution there is added a material fact, and a scire facias ought to have issued, on which the judgment debtor would have had an opportunity to traverse that fact. The execution, thus varying from the judgment, a satisfaction of it would not have been a satisfaction of the judgment. If the execution could lawfully issue after the death of one of the judgment creditors, it ought to have followed the judgment, and still to have issued in the name of both.
    The execution recited in the plea issued nearly two years after the judgment on which it was founded, and the plea sets forth the issuing of no preceding ones. But without a scire facias to revive the judgment, no original execution can issue after one year from the judgment. If previous executions had issued, it was necessary to set them forth, together with the return of each, that the Court might * judge of the legality of that under which the defendant justifies.
    
      Mellen and Emery for the defendant.
    The Court will intend that the previous executions were duly issued and returned, rather than that their clerk issued one which, by law, he had no authority to issue. This is the common form of pleading, namely, to set forth the process under which the party claims to justify, and to aver that it duly issued according to law.
    Perhaps it was unnecessary to suggest the death of Abigail Ly
      
      man in the pluries execution. But it cannot go to vender the exe cution void. Nor was the survivor put to his scire facias by that event. The survivor was entitled to his execution. A payment to him would have satisfied the judgment. He only was entitled to the money; and the precept of the execution was to levy and pay the money to him. In Withers vs. Harris, 
       Lord Holt says, “ Where there are several plaintiffs or defendants, and one of them dies, execution may be sued by or against the survivors, upon suggestion of the death made upon the roll.” The suggestion was I ere made to the clerk, and no doubt entered by him in the records, which must be as good as the roll in England; and he thereupon issued the execution conformably to the fact, truly reciting the judgment as it was rendered. And if this was an error, it was that of the clerk; and it would be inequitable in the highest degree to subject a creditor, pursuing his honest demands with the countenance of the Court, to an action for the misprision of the clerk. But, at any rate, we must insist that this error, if it was an error, did not make the process void, but, at the utmost, only voidable; in which case an action of trespass will not lie.
    
      Holmes in reply.
    The suggestion on the roll mentioned in Withers vs. Harris must be made while the action is pending. It cannot be done after the final judgment is entered up; there is then no court, nor any officer of the court, to receive the sugges-
    tian. The execution must in * every case follow the judgment.  If it does not, it is void, and every act done under it is tortious. But if voidable only, as it does not pursue the judgment, the party taking it out and causing it to be levied is a trespasser, though the officer may be excusable for serving it.
    
      
       2 L. Raym. 808. — 3 Salk. 319. S. P. — 6 Bac. Abr. 106 -- 3 Lev 404. — 1 Salk. 273.
    
    
      
      
         Tidd's Practice K. B. 41
    
   The cause stood continued nisi for advisement, and the next week, at Portland, the opinion of the Court was pronounced by

Parker, J.

This is an action of trespass and false imprisonment, to which the defendant has pleaded a judgment recovered by himself and Abigail Lyman against the plaintiff, for possession of certain premises of which he had disseised them, and for costs of the suit; and that upon a pluries writ of execution, which issued in his name alone, the plaintiff was arrested; which is to be understood to be the same imprisonment, &c.

To this plea there is a demurrer and joinder ; and in support of the demurrer the plaintiff’s counsel has alleged several reasons.

In the first place, he objects that by the plea it appears that the execution, upon which the arrest took place, did not issue within a year and a day after the rendition of the judgment, and it does not appear that any former writs had issued and been returned, whereby the issuing of the writ set forth in the plea would be justified.

But we are satisfied that, upon this demurrer, this objection must fail. It would have been sufficient for the defendant generally to have set forth in his plea that he had recovered judgment, that execution had issued thereon, and that, by force of such execution, he had caused the arrest complained of, leaving the plaintiff, in his replication, to show any defects, if any existed. — Further, the execution is described as a pluries writ, which technically presupposes two or more writs issued and returned before it; and as the judgment was rendered at October term, * 1807, and there are but two terms of the Court holden in this county annually, an execution must have been issued within a yeai and a day of the" judgment, and have been returned, to have author ized the clerk to issue an alias execution, and that alias must have been returned before the pluries could legally have been issued; and what ought by law to have been done, we may presume was done, before this execution was issued.

But a more important objection is, that the clerk has issued the execution in a form not provided by law, and that it does not strict ly pursue the judgment.

The judgment is rendered in favor of Abigail Lyman and Moses Lyman, for the possession of certain lands and tenements; and a writ of habere facias had issued upon that judgment, commanding the sheriff to put the said Abigail and Moses in possession, and to levy the costs of suit. It is alleged in the plea in bar, that the judgment remained unsatisfied for the costs only, and the writ of execution is set forth in the plea. In the writ the clerk has recited, before the mandatory part, that Abigail Lyman had died since the rendition of judgment; and the sheriff is commanded by the writ to raise the money, and cause it to be paid to Moses Lyman, the surviving party to the judgment.

It is contended by the plaintiff’s counsel, that this writ of execution, so issued, was void; and that the arrest under it was therefore illegal. The principle assumed by the counsel is, that where there are two or more judgment creditors, and before execution issues one of them dies, the survivors are put to their scire facias before they can have execution upon their judgment. No authority has been produced in support of this principle ; but, on the contrary, the course of the books shows that the proper mode of proceeding in such case would be to take out the execution conformed to the judgment, in the name of all the creditors, without regarding the death of any one; and this should have been the course *here. A scire facias seems necessary only when the execution is to issue in the name of some person not

a "party to the record, as an executor or administrator; or where, by lapse of time, the right to an execution is lost, and the party in interest wishes to revive it. Probably, however, in a case like the present, on suggestion made to the Court of the death of one of the creditors in a judgment, where the interest survived, after judgment and before the issuing of an execution, the execution would be ordered to issue in the name of the survivor only.

But it appears that, in England, the deceased party may be omitted-in the execution, upon a suggestion on the roll of the intervening death. This is, without doubt, a suggestion out of court, in the office of the legal keeper of the rolls, and seems to be analogous to the proceeding of the clerk in the case before us, and it probably led to the course adopted. We are not, however, satisfied with the regularity of the practice, although we are by no means prepared to say that the execution was for this cause void. Had it issued in the name of Abigail Lyman and Moses Lyman, the latter would have had the sole control over it; he alone could have discharged it, and he was alone entitled to receive the avails of it. The situation of the debtor was in no degree changed; his rights remained the same, and his remedy for any defect or omission the same.

We therefore think that as, on motion to the Court by the surviv ing judgment creditor, the clerk would probably have been directed to issue it in the name of the survivor only, his issuing it in that manner, without order, is not such an irregularity as makes the execution void even against the creditor himself; and that the arrest was not an unlawful act.

Plea in bar adjudged good. 
      
       [2 Tidd. R. 8th ed. 1171.—Archb. Pr. K. B. vol. ii. p. 92. Johnson vs. Lynch, 3 Bibb. 334. — Ed.]
     
      
      
         [No instance can be found of a suggestion upon the record of the death of any party in a cause, which happened after the rendition of final judgment therein ; nor any ?ose wherein it has been expressly held that execution issuing in the name of the survivors onlyy under such circumstances, was good. Suggestions of this kind usually purport to be made in Court, and contain the allegation that the fact suggested is not denied, but admitted by the adverse party to be true. And all the books of practice agree that, in this case, the execution ought to issue in the name of all the plaintiffs or defendants; otherwise it will not be warranted by the judgment. (Tidd, Pr. 8 ed. 1171, 2d Saund. 72, i.) And if so, it would seem that the defendant was liable in trespass. (Chitt. 4, ed. 169.) — Ed.]
     
      
      
         [See Bowdoin & Ux. vs. Jordan, post. 160. — Ed.]
     