#### Miller *v.*Spencer’s Administrators.

& an action against an Administrator, lie pleads *“*no assets/^whicll plea the Jury find to be true, and the Plaintiff signs judgment ; he then sues out a *scire ftcias*against the heirs at law, to subject the real estate of the debtor to the payment of his debt; and pending this *sci. fa*assets come to the hands of the Administrator. The Plaintiff' cannot have a *scire facias*against the Administrator, to subject those assets to the payment of his judgment. This process lies only on judgments which are taken *guando,*&c.

. Judgments were taken in 1807, against. Defendants to the full amount of assets then on hand j ,and afterwards James Greenlee obtained a judgment for *¿6280;*and about the same time a suit instituted by Defendant’s testator, against one Davidson, was dismissed agreeably to a compromise made in 1 he life time of Defendant’s testator. At the time of Greenlee’s judgment no assets were in the hands of the Defendants, and that fact so found by the Jury. Greenlee sued out a *scire jadas*against the heirs at law, to subject the real estate, and that *sd. fa.*being pending, the Plaintiff in this case, Miller, brought his suitj to which the Defendant pleaded— *“*fully administered, former judgment, &c.” And assets to the amount of £94 3s. 3d. having come to the Defendant’s hands, a question arose and was sent to this Court, how these assets were to be disposed *of;*whether Greenlee’s judgment created any lien upon them, or they were to be applied to the payment of the costs in the case of Defendant’s testator against Davidson, or were liable to the recovery of the Plaintiff in this case.

Haix, Judge,

delivered the opinion of the Court:

It is clear that Greenlee's judgment is no lien, upon the assets which, have come to the hands of Defendants since that judgment was obtained. It Mould be. difficult to devise a process by which they could be reached ; for Greenlee, after the plea of *u*fully administered”' was *282found against him, made his election to proceed against' the real estate, by signing judgment and suing out a *sci. fa.*against the heirs at law, agreeably to the directions of the act of 1784, ch. 11. Had Greenlee intended *to*rely upon assets to be received by the Defendants, subsequent to the time of obtaining his judgment, he ought to have taken a judgment *quando*acciderunt; in which case a *sci. fa.*might have issued conformably thereto, that would have reached the assets in question, (6 *Term R.*1, *2*—Saunder's *Rep.*217.) But no such process can issue from the judgment as it stands. This judgment then cannot stand in the way of the Plaintiff/

As to the costs due upon the dismission of the suit against Davidson, they must be considered as a debt due by the Defendant’s testator, because that dismission took place in consequence of an agreément by him made *•,*and the Defendants only acted in conformity with the ■agreement.. They arc, therefore, entitled to retain to the amount of their coáts, *although an execution may*have issued against them for the costs, before the assets came to hand, and the Sheriff may have returned oh that execution, *nulla, lona.'*Yet the party interested in that execution, is not precluded from suing another execution at a subsequent time. The assets in question must therefore be applied, in the. first place, to the payment, of these costs ; and in the second place, to. the satisfaction., as far as they will go, of the Plaintiff’s judgment.