5 Blackf. 11 | Ind. | 1838
Scire facias, issued by the clerk of the Circuit Court, to show cause why an execution should not issue on the transcript of a justice’s judgment filed in the clerk’s office. Demurrer to the scire facias, and the. demurrer sustained.
Three objections are made to the scire facias.
First, that there is no averment that the justice was informed that the defendant had lands. Such a statement is unnecessary. If such information "must be given to the justice, it will be presumed, from his furnishing the transcript, that the information was given.
The second objection is, that the scire facias does not show that the justice had issued an execution to the proper constable, as is required by the statute. It appears by the scire facias, that an execution had issued to a special constable; and that is sufficient. It must be presumed that the constable had been legally appointed.
It is objected in the third place, that the scire facias does not aver the judgment to be in forces Such an averment is unnecessary. If the judgment be paid or reversed, the defendant must show it. 1 Chitt. PI. 404.
The judgment is reversed with costs. Cause remanded, &c.