
    
      Miller v. Spencer's Administrators.
    
    The administrators plead fully administered, former judgments, &c.
    Judgments had been taken at July term, 1807, to the full amount of assets then on hand; since which time, a judgment had been taken in favour of James Greenlee for £280, against these defendants also; a suit which had been depending between the defendant’s intestate and Davidson was dismissed about the time of Greenlee’s judgment, under a compromise made between the parties, in the life time of said intestate; (which was that the said intestate should pay a certain part of costs), to which suit Stevelie had been security to prosecute. At the time of Greenlee’s judgment, no assets were in the defendants’ hands, which was so found in the verdict in said suit of Greenlee; and sci. fa. had issued against the guardian of the heirs of the plaintiff’s intestate, but no judgment thereon; this suit by sci. fa. is yet depending. Also in the case of Davidson’s suit, proceedings are carrying on to subject Stevelie, the security of Spencer. Now since those suits went off (of Davidson and Greenlee) assets to the amount of £94:3:3, have come to the defendants’ hands, which are so found by the jury, subject to the opinion of the court, on this case, whether the judgments of Greenlee and Davidson, or either of them, are legally entitled to a preference, in exclusion of the present debt whereon this judgment is rendered. Greenlee’s judgment was not entered to subject assets when they should come to hand, by any words expressed by the jury in their verdict delivered by the court.
   Hall, J.

It is apparent that Greenlee’s judgment is no lien upon the assets which have come to the hands of the defendant since that judgment was obtained. It would be difficult to devise a process by which they could be reached, because the plaintiff in that action, after the plea of fully administered was pleaded by the defendant, and found against him by the jury, made his election to proceed against the real estate of defendant’s intestate, by signing judgment and issuing a sci. fa. against the heirs of the intestate, as a pre-requisite to the issuing of an execution against the lands descended to them agreeably to the directions of the act of 1784, c. 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 procured a judgment of assets 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’ Rep. 217—but no such process can issue from the judgment as it stands. That 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 defendants’ testator; because that dismission took place in consequence of an agreement by him made; and the defendants only acted in conformity to that agreement. If so, they could legally, if they thought proper, retain to the amount of those costs in the present action of assumpsit. Although an execution may have issued against them, before the assets in question came to their hands for those costs, and the sheriff, on that execution returned nulla bona, yet the party interested in that execution, is not precluded from issuing another execution at a subsequent time; the door is not shut against him, as we have seen it is against Greenlee, by his judgment. It matters not that proceedings are carrying on against Stevelie. It is sufficient that Stevelie has not paid the debt—then it is still due by the defendants. To be sure, if Stevelie had paid the debt, things would be different; he would then be a creditor like the present plaintiff, and like him sue for his debt, and get it if he could. The result seems to be, that Greenlee’s judgment creates no lien on the assets in question; but that the costs of the compromise do create such lien.  