
    MEACHAM v. DODGE.
    liability of a trustee suing for another’s use to the judgment — a scire facias improper' — must proceed by order and attachment.
    "Where a suit is brought in the name of one person for the use of another, the cestui que trust, though in fact the actor, is not liable to a scire facias to satisfy the judgment against his trustee.
    The cestui que trust, in such case, occupies a relation to the suit, similar to that of an attorney, and must be proceeded against, if at all, by order and attachment.
    Error to the Common Pleas. Beckwith, for the use of Meacham, sued Dodge, and Dodge got judgment for the costs. He sued out a fi. fa. which was returned non est, and then sued out a scire facias against Meacham, to show cause why judgment should not be had against him. Meacham demurred to the sci. fa., and Dodge had judgment. To reverse which, this suit is brought.
    
      Geo. Swift for the plaintiff in error.
    
      Giddings contra.
   BY THE COURT.

The sci. fa. avers that Dodge recovered against Beckwith, without saying that it was in the case sued for the 376] useof *Meacham. The simple question is, willa soi.fa. lieinthe case made ? A sci. fa. in our practice, is the great remedial writ, where no other writ is provided. It must, however, be given by express statute, or rest on matter of record. Throwing aside all technicalities, and looking at this transaction as it is, the cestui que trust is the actor in fact, though he use the name of the trustee; because, he has the legal interest. This cestui que trust occupies a similar relation to the subject, as is occupied by an attorney, and may be proceeded against in the same way, by order and attachment. This is a more convenient way than by sci. fa., and we think this writ does not lie.

The judgment is revex-sed, with costs.

[Summary enforcement of payment of costs explained ; Naper v. Brown, infra, 692, 693.]  