
    Cude vs. Spence.
    Where the administrator pleaded to a scire facias against him, that he did not waste or consume the assets of his intestate, and the plaintiff replied, and a verdict was found for the plaintiff; it is held, that though the plea was bad, the plaintiff was entitled to his judgment.
    This is a scire facias which was issued on a judgment for four hundred dollars, debt, in the Circuit Court of Hickman county. A verdict was rendered for the plaintiff, and the presiding Judge, Dillahunty, arrested the judgment, and the plaintiff’in the scire facias appealed.
    
      Fogg, for the plaintiff.
    
      Walker, for defendant.
   Turley, J.

delivered the opinion of the court.

John Cude recovered a judgment in the Circuit Court of Hickman county against John L. Spence, administrator of Mark R. Patterson, dec’d, upon which a writ offieri facias was issued, and returned nulla bona. Whereupon he caused a writ of scire facias to be issued against the defendant, seeking to charge him de bonis propriis. To the scire facias the defendant pleaded:

1st. That he was discharged from the office of administrator before the judgment, and B. B. Saterfield appointed administrator, to whom he delivered over the assets.

2d. That he did not waste or consume the assets of his intestate.

To the first plea, there was a demurrer, which was overruled by the court. To the second, there was replication and issue, upon which the jury found a verdict for the plaintiff. Upon which the court arrested the judgment, and the plaintiff appeals to this court.

We think the judgment of the Circuit Court is erroneous.

The 1st. plea is bad, and the demurrer to it should have been sustained. It constitutes no defence to the scire facias; if true, it ought to have been pleaded to the original action.

The -2d. plea is also bad, but the plaintiff took issue upon it and it has been found in his favor, and he was entitled to judgment upon it.

Let the judgment of the Ciicuit Court be reversed, and now given for the plaintiff for the amount found in his favor by the jury-  