#### PATTERSON *v.*WILKINS.

Practice — receipt against a judgment — satisfaction—assessment—after notice assignee protected — precipe authority for clerk.

Where a justice of the peace against whom there is judgment, issues process on a judgment on his docket against the party recovering of him in favor of a stranger, with intent, to use the process to obtain a receipt for so much of the judgment against him, he is not entitled to favor — if he have right, it is matter of stiict law.

If, under such circumstances the defendant get a receipt in full for the judgment, and have notice of an assignment of part of the judgment, another execution will issue for the amount assigned.

No form of notice in case of assigned judgments is requisite; that which puts a party on his guard, and enables him to protect himself, is sufficient.

The receipt upon a judgment does not, per se, satisfy the judgment, nor is the clerk authorized to judge of receipts and satisfy the judgments — that power is confided to the courts. The precipe justifies the clerk for issuing an execution, and if improperly issued, the courts may stay, until motion to enter satisfaction, or to quash.

The proper course, in case of a receipt, is to apply to the court to order satisfaction — without satisfaction entered, the judgment is in apparent force, and execution may issue.

Certiorari, to the Court of Common Pleas, to reverse an order of that court, for error in ordering an execution. The bond showed, that Wilkins had a judgment in the Common Pleas against Patterson. One Roberts had a judgment of earlier date, rendered by Patterson, as a justice of the peace. Patterson issued an execution upon Roberts’ judgment against the body of Wilkins, and gave to the constable, telling him to say to Wilkins, that if he would give a receipt upon his judgment against Patterson, it could be so compromised. Wilkins’ judgment had been in part assigned and transferred in writing to Brush, for $15, and to R. Collins for $30, of which Patterson had been notified, but the notice did not specify that the transfer to them was in *writing,*and as to Collins’ lien, it *502•was described as for *$20,*instead of *$30.*Wilkins was arrested on the ca. sa. on the 8th of July, brought by the constable to Patterson’s office, informed that he could discharge his body, by giving a receipt upon the judgment he had against Patterson, but that Brush said he had a lien upon it, and was asked how he would fix that? . Wilkins replied, he thought he could arrange that, and would do so. Patterson then instructed the constable not to proceed further in the execution then, and Wilkins went at large, and after-wards returned and gave Patterson a receipt in full of the judgment, dated two days before, and then went at large. Collins and Brush applied to the clerk for an execution, which the clerk refused, because Patterson had filed Wilkins’ receipt in the office. A motion was made in the Common Pleas for the execution; a rule upon Patterson to show cause why it should not issue was made. Upon hearing of this rule, the above facts were made to appear to the court, and it thereupon ordered an execution for the^ amount of the judgment transferred to Collins and Brush, deducting *$10,*omitted in the notice as to Collins’ amount by mistake.. To reverse this order, this writ is brought.

*Keenan,*for the plaintiff in error,

contended that the judgment was not assignable except in writing, and the notice was insufficient, because it did not state the assignment to be in writing, and set out a copy of it. .

*R.*Collins/ contra.

By the Court.

The receipt given by Wilkins did not per se discharge the judgment, though if properly and fairly obtained, it was authority for the court, on proper application, to order satisfaction on the record, if that could be done without affecting the rights of other persons. The judgment, it is admitted, was the subject of assignment in writing — a part of it was so assigned, but it is asserted that the notice of the assignment did not express that the assignment was in writing, or set it forth, and therefore that the assignment for want of notice was in operation against Patterson. It is an answer to the objection that the law does *not*prescribe any particular form of notice in such cases, and therefore, any which conveys information of the fact, is sufficient. We think the notice in this case sufficient; it put Patterson on his guard, and afforded him an opportunity to protect himself, and that was its sole object. He knew of the assignment, and afterwards issued his execution, and sent word to Wilkins of his proposed compromise, spoke of the assignment to Brush before he took the receipt, and then asked the court, in the exercise of its equitable power, to protect him, not *503because he had not notice, in fact; not because he htid parted with any thing in good faith, and in ignoran'ce of the rights of Collins and Brush, for it is not even shown that Roberts ordered the execution against Wilkins, or knew of it, or that any credit had been given on the docket for the amount of the receipt; *but because the notice was not in due form of law!*The reason is one not entitled to favor upon *equitable grounds*— if it have *favor,*it must be because of its unbending legal obligation. We have already said that the law prescribes no particular form for such notice. The notice was one of fact — the *fact*is conceded — but is now sought to be avoided, as the reward of a contrivance to get round it, and throw the loss upon Collins and Brush.

The proper course would have been for Patterson to have moved the Court of Common Pleas to satisfy the judgment, and that the court on hearing could decide as advised. Without satisfaction entered, the judgment remained open, and the plaintiff had a right to his execution. The clerk had no power to judge between the parties upon the validity and effect of the receipt. The law confers no such power upon him — that duty belongs to the courts of justice. The precipe justifies the clerk for issuing the writ, and the party sues it out at his peril. If improperly sued out, it may be quashed by the court at the costs of the party sueing it out. If sued out after the judgment is paid, the court would order it stayed until it decide the question upon the motion for satisfaction. But, however that may be, the Court of Common Pleas ordered the execution for the $35. In so far they ordered as we should have done. If there be error, it is not against the plaintiff in error, of which he need complain, but in not directing the execution for $10 more.

The order is affirmed with costs.