
    Executors of Thomas S. Dimond against Ira Allen, Administrator of Remember Baker.
    In scire facias against administrator, to shew why execution should not issue de bonis propriis, it is not necessary to allege expressly that defendant is administrator, or that he has assets.
    
      SCIRE FACIAS, to shew cause why execution should not issue de bonis propriis.
    
    Demurrer by defendant.
    Causes of demurrer:
    First. It is not alleged that said Ira was ever administrator on the intestate’s estate.
    Secondly. That the plaintiff in his declaration hath not alleged that there were assets in the hands of the supposed administrator.
    The counsel for the demurrant doubted whether in any case an action of this nature would lie: but more especially relied on the second exception; and cited Durnford & East, vol. 7. p. 27. Gill v. Scrivens. Lilly’s Entries, vol. 2. p. 627.
    Counsel for the plaintiff.
    The law is so well ^t'ablished, that as to the action’s being well founded, I shall be silent.
    In reply to the first exception in demurrer. It is sufficient to name plaintiff or defendant as administrator, without expressly alleging him to be such. Com, Dig. vol. 5. p. 586.
    
      To the second exception. It is established, that in every case the administrator is to be considered as having assets in his hands until shewn by him to the contrary in pleading. Com. Dig. vol. 5. p. 576. In declaration against administrator, it is not necessary to allege assets in his hands.
    
      Daniel Chipman, for plaintiff.
    
      Samuel Miller, for defendant.
   By the Court.

A scire facias is a judicial writ, and the recital of the record on which it is founded is sufficient. If the defendant was not administrator, he should have shewn it in his defence in the original suit. If he has no assets, plene administravit will be good shewing in the present suit.

Declaration sufficient.  