69 Me. 97 | Me. | 1879
Benjamin P. Ware and John Q. A. Clifton, as executors of the last will and testament of John Clifton, having obtained judgment against the defendants as trustees of John E. Gowen, assigned their judgment to this plaintiff, who brings scire facias against the defendants as trustees.
Execution was seasonably issued and placed in the hands of an officer, by whom a demand was made on the defendants to pay over and deliver to him “any goods, effects and credits” belonging to said Gowen, which they neglected and refused to do.
I. It is claimed that this process cannot be maintained in the name of an assignee.
By the act, e. 235, approved March 3, 1871, “assignees of choses in action, not negotiable, assigned in writing, are hereby authorized to bring and maintain actions in their own name,” etc.
Generally all causes of suit for any debt, duty or wrong are to be accounted choses in action. Jacobs’ Law Dictionary— Chose.
In case of the death of the plaintiff in the original action, scire facias against the trustee must be in the name of the executor or administrator. In Winter v. Kretchman, 2 D. & E. 45, it was held that the assignees in bankruptcy might bring scire facias to revive a judgment. “I cannot,” observes Ashurst, J., “distinguish
In Murphy v. Cochran, 1 Hill (N. Y.), 339, a judgment was held to be a chose in action, and that assignees, under a statute authorizing them to bring actions in their own names, might sue out scire facias guare executionem non, to revive the judgment.
But reliance is placed on the distinction taken in Adams v. Rowe, 11 Maine, 89, that in trustee process scire facias against the trustee is not so much a new action as a continuation of the original suit, when it is used to carry into effect a former judgment against a party to it. It is conceded that scire facias against bail or indorsers on the writ would be new actions. But while it may be conceded that, in the trustee process, scire facias may well be considered in one view as a continuation of the original suit, yet it is difficult to see why it is not a new process, by which a new and different judgment is obtained against a defendant as principal who in the former one was merely a trustee. The judgment in the second action differs from that obtained in the first, and the same is true of the execution issuing thereon.
II. Taking the whole return of the officer together, we think it apparent that the officer made a seasonable demand on the trustee, and the execution remained in his hands until its expiration, and that at that time it was unsatisfied.
Judgment for plaintiff.
