
    Blount & Williams, Adm’rs. of Williams vs. Hopson and Allen.
    Reynoldsburg,
    May, 1830.
    A plea which might have been pleaded to the action before the justice by the administrator, is not a good defence to the scire facias founded on such judgment.
    In this case judgment was recovered against the administrators of Williams, before a justice of the peace, without any defence on their part, an execution was issued and returned “nothing found;” the papers were then filed in the office of the clerk of the county court, pursuant to the act of 1822, ch. 43, a scire facias was issued against the defendants, to show cause &c. To this scire facias, they pleaded fully administered, which plea was demurred to. The circuit court sustained the demurrer.
   Opinion of the court delivered by

Judge Catron.

This cause involves the construction of the act of 1822, ch. 43. In courts of record, the rule is settled, that an administrator must show the want of assets by pleading the fact, and that a judgment against him without this defence being pleaded, or if pleaded found against him, is conclusive that he has not fully administered the assets; as is the return of a fieri facias “nothing found,” prima facie evidence of a devastavit, and that want of assets cannot he pleaded to a scire facias upon such judgment suggesting a devastavit, 2 Starkie’s Ev. 561.

There can be no objection to proving the fact of fully administered before a justice of the peace; indeed the first section of the act of 1822, ch. 43, contemplates the plea of fully administered being found before the justice; and directs how proceedings shall be had against the heirs in the county court; previous thereto, the real estate in the hands of the heir could not be reached through a justice’s judgment.

The act of Assembly puts a justice’s judgment on the foot of those rendered by courts of record — it follows that the plea came too late, and the demurrer was correctly sustained by the circuit court.

Judgment affirmed.  