
    Weaver and Crocket, Adm’rs of Pitcher v. Reese.
    Where letters of administration are revoked, and an administrator de bonis non appointed, seire facias can not he sued in the name of the removed administrator, to revive a judgment rendered in his favor while in office.
    In scire facias to revive a judgment, it is not necessary to aver specially that no execution had been issued.
    This case was adjourned from Fairfield county. It came up on a scire facias, setting forth that the plaintiffs, as administrators of Pitcher, recovered judgment against one George Hanison and David Reese, which yet remains unsatisfied without execution, and praying execution thereof against Reese as survivor.
    The fourth plea is, that the judgment was recovered by the plaintiffs in their capacity of administrators, and after the judgment their letters of administration were duly revoked, and they compelled to settle their administration account; an administrator de bonis non was appointed, and thenceforth- the plaintiffs ceased to have any control over the assets of the intestate, but the same were in the administrator de bonis non when the writ of sci. fa. was issued.
    
      *To this plea the plaintiffs demur specially, and set forth [419 the following causes of demurrer, that is to say:
    1. That there is no averment in the plea that the plaintiffs did not charge themselves with said judgment, as assets, in the settlement of their accounts.
    2. That it is not averred in the plea that the judgment was assets of the estate of the intestate.
    3. That it is not averred in the plea that the plaintiffs were administrators.
    Hunter, for the plaintiffs, contended:
    1. That an administrator de bonis non can in no case have a scire facias at common law, to revive of execute a judgment recovered by a former administrator; and as no statute in this state gives such a writ, he can not have one here. He cited 1 S. & R. 594; 1 Salk. 306, 323; 4 Mass. 611; Cro. C. 167; 2 Ld. Raym. 1049; 2 Saund. 72, o.
    
    2. Although it is alleged that the judgment was recovered by the plaintiffs as administrators, yet it does not ex necessitate affirm that their demand was not in the individual plaintiffs, but in the administrators as such; the description as administrators may be rejected as surplusage. He cited Ld. Raym. 436, 1215 ; 1 Salk. 207; 6 Mod. 92; 2 Str. 1106; 3 Mass. 319; 2 Ohio, 159; therefore it' should be averred explicitly that the cause of action was in the intestate.
    3. That a scire facias will lie to revive a dormant judgment against a surviving defendant, one having died since the judgment recovered, though there is no express statutory provision for such a case. 2 Saund. 51, n. 4, 71, k.
    
    4. That the scire facias-will lie to revive against.the survivor;, without joining the heirs of the deceased defendant.
    5. That it is not necessary to aver in the writ of sci. fa. to revive a dormant judgment, that the judgment has become dormant. Arch. Forms, 431; Wil. Forms, 231.
    H. Stanbery, for the defendant, insisted :
    I. That an administrator after his removal, can not have a scirefacias to revive a judgment, recovered in his representative character. Yelv. 148, 149; 4 Mass. 612.
    42. Upon the death of one of two judgment debtors, a [420 
      scire facias does not lie against the survivor alone. 2 Saund. 72, k; Ib. 51, o.
    
   Judge Wright

delivered the opinion of the court:

The first question raised by the defendant’s counsel seems to us to decide this cause, and to render it unnecessary for us to examine any other of the points made by the parties.

Our statute, 29 Ohio L. 234, authorizes the probate court to remove administrators for cause, and provides that when an administrator is removed, and another one is appointed in 1ns stead, the new administrator may immediately have his action against the removed administrator, and recover all assets received by him and not applied according to law, and all damages done by him to the estate while in his hands. The removal terminates the authority of the removed administrator over the assets received as well as those not received. An unsatisfied judgment is not assets received, the original debt, though merged in the judgment, remains due the estate. The right to receive the amount is in the new, not the old administrator, and he can not have a scire facias to aid him in executing the judgment.

The plaintiff’s counsel, however, insists that this recovery may have been for a debt due the individual described as administrator, ,.and not to the estate of his intestate. The scire facias recites a judgment recovered by Weaver & Crocket, administrators of the .estate of Pitcher. Apparently this recovery is by the plaintiffs in their fiduciary character. The plea alleges that the judgment was '.recovered by the plaintiffs in their capacity as administrators. 'This the demurrer admits. The character of the recovery must ■be taken as true for all purposes connected with our present in•quiry '; so that the broad question is open, whether the right of an administrator to recover assets not reduced to possession, continues after the revocation of his letters. We are clearly of opinion, that his authority is put an end to by the revocation of his letters.

Objections are made to the form of the writ. It is insisted that in a scire facias to revive a dormant judgment, it is necessary to aver that no execution has been issued for a period of five years or more. The scire facias sets forth the date of the judgment, and that execution thereof remains to be made. No execution is, or 421] need be recited. An averment *that five years and one month had elapsed between the date of the judgment set out, and the date of the writ, would seem.to be superfluous. As both dates appear, the court will take notice whether it is more than five years between them, and if so, the right to revive is shown, unless the defendant shall, in showing cause by plea or otherwise, set up the fact that execution has issued within five years. I allude to this objection, because it was urged that the form in Wilcox had been followed and was bad ; and that it was held bad by the profession in this part of the state. We think it good.

The plaintiffs ask leave to withdraw their demurrer, and to reply or amend. They may take leave to amend on paying all the costs since the return of the writ, or to reply on paying those arising since filing the demurrer..  