
    COWDEN v. STARR.
    Scire facias on a judgment of restitution — execution—profert—mandate for execution.
    A scire facias to be restored money collected upon a judgment which is reversed, is process of execution, and issues from the court having by law execution of the judgment of restitution on error.
    Such writ, by our practice, should aver that the judgment was remanded by the Supreme Court to the Court of Common Pleas for execution.
    Profert of a record must be made in a scire facias; it is not sufficient to make profert of the books in the clerk's office.
    
    Appeal from the Common Pleas. Scire facias, on a judgment of restitution, in the reversal of a former judgment to recover'back the money collected upon execution, on the judgment before its reversal. General demurrer to the sci. fa. which is joined.
    
      D. L. Collier, for the demurrant,
    made two points:
    1. That the Common Pleas had no jurisdiction in this case, as the record is in this court.
    2. The profert is bad, as showing ho record, it only averring that it appears, by the books in the clerk's office. Arch. Forms, 200; Sil. Ent. 641-51; Tidd'sP. 541; 2 Saund. R. 101.
    Tappan, contra,
    cited Hob. 4. The record remains in the Common Pleas, and the sci. fa. must issue from that court.
   By the Court.

The sci. fa. does not show that the judgment of restitution was remanded by the Supreme Court to the Court of Common Pleas for execution; if it did, as the sci.fa. in this instance is used as process of execution, it would properly issue from the court having the execution of the judgment, conferred upon it by law.

A sci. fa. supposes the existence of a record, and profert must be made of a record. The profert here of the books in the clerk's office, may, or may not be of a record. The demurrer is well taken.

Leave was given to the plaintiff to amend, on paying costs.  