Whitney v. Dolloff

Virgin, J.

The defendant’s plea of nul tiel record and the plaintiff’s joinder present the question, — Whether there is a variance between a declaration counting on a judgment against " Clara Dolloff, of Lisbon”, and a record of a judgment against " Clara Dolloff, of Lisbon, married woman.” We have no doubt that the omission of the addition — "married woman” did not create a variance. There is no difference in the name, and the judgment is otherwise fully and truly set out.

It is urged, however, that if judgment be recovered upon .the declaration as it now stands, the execution to be issued thereon, may run against the body of the judgment debtor contrary to the provisions of E. S., c. 61, § 4.

But that is a matter with which the judgment has no concern, but is governed by the provisions regulating the issuing of final process. Thus if a person, served with mesne process otherwise than by arrest, disclose before judgment, under the provisions of E. S., c. 113, § § 8, et seq. and the commissioner determines that the execution shall not issue against the body of the debtor, the judgment is in nowise affected thereby; and if the proper suggestion be made upon the docket, the execution will run against the debtor’s property alone.

If, in the case at bar, the plaintiff omits to protect himself and officer by seeing to it that the proper execution shall issue, the defendant can do it.

Exceptions overruled.

AppletoN, C. J., Barrows, Danporth,Peters and Symones, JJ., concurred.