M'Kinney v. Mehaffey , 7 Watts & Serg. 276 ( 1844 )

The opinion of the Court was delivered by

Gibson, C. J.

A scire facias answers the purpose both of a writ and a declaration; and where a legal title to have execution of the original judgment or recognizance is not set out in it, judgment may be arrested as for want of a cause of action. But execution is to be had only in the name of the legal plaintiff; and what title to the character does this plaintiff show ? He has set out the judgment truly as it exists; and as there was no variance between his description and the truth, there was no room for the plea of nul tiel record. There is exactly such a record as is stated in the scire facias; but it stands as a judgment recovered by Henry Share & Co., and the plaintiff insists that it is a judgment recovered by the firm, which entitles him to execution in his own name as surviving partner. But it would be inconsistent with the certainty required in judicial proceedings to treat any one as a party whose name does not stand distinctly as such on the record. Mr Justice Duncan was right in saying, as he did in Porter v. Cresson, (10 Serg. & Rawle 257), that the parties, plaintiffs and defendants, should be brought byname on the record; but he was wrong in saying, without qualification, that an omission to do so might not be error. The judgment may not be altogether void; but it follows not that a person not named as a legal party to it can, as a legal party, derive advantage or suffer prejudice from it. If parties plaintiff might be ascertained and fixed by extrinsic proofs, so might parties defendant be; and to ascertain the legal ownership of a judgment, or the persons and lands bound by it, would sometimes require another trial by a jury; so that such a judgment, instead of being the end of the suit, would be the beginning of it, and it would not give notice to purchasers. The judgment in the case before us is entitled “ Henry Share & Co. v. Samuel Kinney,” in accordance with the form of the bond; and though it is legally inoperative as a judgment in favour of the firm, it is good for the party named as tne obligee. Nor is the name of the firm cognominal in this instance, as it serves to designate the use or equitable ownership. Nothing in Porter v. Cresson will be found to militate against this. In that case, the bond and the action were in the partnership name of Cresson, Wistar & Co.; and no more was determined than that the defect, if it were one, could not be taken advantage of on the plea of non est factum, which put nothing in issue but the sealing and delivery of the instrument described in the declaration. It was doubted whether the irregularity could have been reached in any way after verdict, as the name of the firm might have been treated as the name of an individual; but it doubtless might have been by a plea in abatement, giving the members of the firm a better writ in their individual names, under which they might deduce title to the bond with proper averments. But, without such averments, there would be no more colour of title in them than in a stranger. In the case before us, the word company is not cognominal, but indicative of the beneficial ownership; and, even under our mixed system, it gives the cestui que trust no right to maintain the action while there is a trustee legally capable of maintaining it. We held in Armstrong v. Lancaster, (5 Watts 68), that the equitable use is no part of the title between the plaintiff and the defendant, and that it is surplusage when it is traced in the pleadings. In the present case, the word company is to be rejected for every purpose except to designate the title to the money when it shall be recovered. In contemplation of law, the judgment stands in the name of Henry Share for the use of the firm; and as the other partners were not legal parties to it, a scire facias can be brought on it only in the name of his personal representative, to the use of the present plaintiff, who is entitled by survivorship to the money. The converse of the proposition is to be found in Mehaffy v. Lyttle, (1 Watts 314), in which it was held that an action on a bond of indemnity to two must be brought by both for an injury to the one.

The motion to set aside the original judgment is not a ground of error; and, if it were, it is far from clear that it ought to have prevailed after the lapse of twenty years, when the witnesses who might have explained the reason of the interlineations must be presumed to have passed away. If the facts were doubtful, it would be in the discretion of the court to award an issue; but it certainly would be rash to destroy the foundation of the scire facias by a summary interference in the trial of an issue raised by the pleadings under it.-

It is unnecessary to decide the questions raised by the bills of exceptions; but it is not improper to say that we perceive no error in the admission of evidence, or the direction to the jury.

Judgment reversed.