
    Thomas Dyer and Nathaniel Scammons, Plaintiffs in scire facias, versus Asa Stevens, Trustee of John Haley.
    Of reciting the former judgment m a save facias against one as trustee of the original defendant.
    Where the plaintiff) in his replication, traversed the only allegation in the defendant’s bar, and tendered an issue, and in place of joining the issue, the defendant demurred, the plaintiff had judgment; the Court observing, that if the allegation was immaterial, the demurrer could not prevail; and if material, the issue tendered ought to have been joined.
    In a suit by the plaintiffs against Haley, the principal debtor, and the defendant Stevens, as his trustee, the plaintiffs had recovered judgment against the principal, and had also obtained an award of execution against his effects in the hands of his trustee. The execution issued, and was returned unsatisfied, the sheriff returning that he could not find any of the effects of the principal in the hands of Stevens, who refused to disclose and expose sufficient effects to be taken, to satisfy the execution. Upon this judgment, execution, and return, this scire facias was brought, to have execution against the defendant and his own goods and estate.
    The defendant pleaded mil tiel record, on which issue Was joined. On producing the record, the judgment appeared to be entered regularly against the principal for the damages and costs ; and execution appeared to be awarded against him, his goods and estate, and also against his effects in the hands of the defendant. On examining the recital of the judgment in the scire facias, it appeared that the plaintiffs had declared upon a judgment for the damages and costs against the goods, effects, and credits of Haley, in the hands of the defendant Stevens.
    
    
      The Court were of opinion that the record produced in evidence was not a record of the judgment declared on ; because the record produced was of a regular judgment against the principal, and an award of execution only against his effects in the hands of his trustee ; whereas the scire facias describes the record ot [ * 390 ] a judgment for * the damages and costs, not as rendered against the principal, but as rendered only against his effects in the hands of the present defendant.
    The plaintiffs then moved for leave to amend their declaration ; which was granted on their payment of costs.
    The defendant, by leave, had also pleaded in bar, alleging that the officer had never required him to discover and expose any effects of his principal in his hands. The plaintiffs, in their replication, traversed this allegation, and tendered an issue to the country. To this replication there was a general demurrer and joinder.
    
      Emery for the plaintiffs.
    
      King for the defendant.
   The Court adjudged the replication good ; observing that, if the allegation in the bar was immaterial, then the demurrer could not prevail, and if material, then the issue tendered by the plaintiffs ought to have been joined; so that in either view the plaintiffs must have judgment.  