In an action against an administrator, he pleads "no assets," which plea the jury find to be true, and the plaintiff signs judgment: he then sues out a scire facias 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 quando, etc.
HALL, J.
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 would be difficult to devise a process by which they could be reached, for Greenlee, after the plea of "fully administered" was found against him, made his election to proceed against the real estate, (282) 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, 1, 2; Saunders, 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 agreement by him made; and the defendants only acted in conformity with the agreement. They are, therefore, entitled to retain to the amount of their costs, although an execution may have issued against them for the costs before the assets came to hand, and the sheriff may have returned on that execution, nulla bona. 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.
Cited: Green v. Williams, 33 N.C. 141; Carrier v. Hampton, 311.
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