
    Graham and Another v. Smith, Administrator.
    On a judgment against Jl.., 25., and C., a scire facias issued to have execution against the goods of Jl. deceased, in the hands of his administrator: Held, that the scire facias, not averring the death of B. and C., and the survivor-ship of Jl., was bad on demurrer.
    Quaere, Whether the administrator of Jl. could be subjected, jointly with B. and C. if living, to the judgment; or whether, as respects the personal charge, B. and C. were alone liable at law, as the survivors of Jl.
    
    ERROR to the Franklin Circuit Court.
    
      Caswell, for the plaintiffs.
    
      Smith, fpr the defendant.
   Blackford, J.

Scire facias to have execution of the goods of Dixon in the hands of his administrator. The writ avers a joint 'judgment against Test, Jacobs, and Dixon, and that Dixon has since died. Demurrer to the scire facias and judgment for the defendant.

During Dixon’s life, execution could not have issued, upon this joint judgment, against him alone, without an averment of the death of Test and Jacobs. The administrator’s liability cannot be greater than that of his intestate whilst he was alive. Hence no execution can be had in this case against the administrator of Dixon alone, without its being shown in the scire facias that Test and Jacobs are dead, and that Dixon survived them. Whether the administrator of Dixon can be subjected, jointly with Test and Jacobs if they are living, to this judgment; or whether, as respects the personal charge, Test and Jacobs if alive are alone liable at law, as the survivors of Dixon; are questions not now before us. This case is very clear. The scire facias being founded upon the record of a joint judgment against Test, Jacobs, and Dixon, and praying the award of execution against Dixon’s administrator alone, without showing the survivorship of Dixon, is bad upon demurrer.

Per Curiam.

The judgment is affirmed with costs.  