
    [Chambersburg,
    November 1, 1825.]
    BIGGER, by his Guardian, DIXON, against WESTBY.
    . IN ERROR.
    • Execution for costs cannot be issued against a guardian, on a judgment for the defendant, in a suit in the minor’s name, brought by such guardian.
    The remedy is by attachment.
    Ejectment was brought by James Will Bigger, a minor, by his guardian, Peter >S'. Deckert, in the Court of Common Pleas of Franklin county, against the defendant in error, Henry Westby. Deckert died before the trial of the ejectment, and James Dixon was substituted as guardian of Bigger. A .verdict was afterwards rendered in favour of Westby, the defendant, in August, 1823, on which judgment was entered. A scire facias was issued by Westby to April term, 1825, against Bigger, by his guardian, Dixon, and judgment entered therein on the. 5th of June, 1825, by default for want of a plea. A fieri facias was issued thereon against the estate- of Bigger, by his guardian, &c. This, on motion of Westby, was set aside: and he issued a fieri facias against the property of Dixon, reciting a judgment against him. The writ of error was now taken out to remove this execution.
    
      M‘Culloch, for the plaintiff in error,
    now contended that this execution was irregular and erroneous, and that the guardian could only be proceeded against by attachment. 2 Sell. Prac. 67. 2 P. Wms. 297.
    
    
      Chambers, contra,
    insisted that a guardian or prochein amy was liable for costs, though the infant is not, Phill. Ev. 48, 1 Tid, 72, 1 Wils. 131, and may be proceeded against by execution. Beeves’ Dom. Bel. 265.
   Per Curiam.

The execution in this case was erroneous, because there was no judgment to warrant it. The remedy for costs is by attachment against the guardian. This is the law, and this has always been the practice.

Execution set aside.  