Samuel Wellborn v. Nathaniel Gordon’s Administrator, &c.

1 ‡- From Wilkes. J

Wherever an administator establishes the plea of “ fully administered,” he is entitled to judgment of execution for his costs, immediately against the Plaintiff.

In this case the Plaintiff established his claim against the estate of the intestate, and obtained a verdict for the same: but the Defendant supported the plea of “plene administravit;” upon which1 the counsel for the Defendant moved for judgment of execution against the Plaintiff for his costs. And three questions were made, 1 st, Whether the Defendant was entitled to costs \ 2dly, If so, who was to pay them, the Plaintiff or the heirs at law of the intestate? Sd, Was he to wait for his costs until final judgment against the heirs pt law, upon a sdret fadas to be sued out against them by the Plaintiff to subject the real estate descended tó the payment of his debt, or was he entitled to an execution immediately against the Plaintiff for his costs.

Bx the Cotjiit.

The administrator having established the plea of “ plene administravit,” is entitled to judgment for his costs. There is no person in Court against whom he can pray for judgment, but the Plaintiff. He and the Plaintiff are the parties litigant upon the record. If the Plaintiff should proceed by save fa-das against the heirs at law to subject the real estate to the payment of his debt, the administrator will be no party to that proceeding, unless the heirs should wish to have a collateral issue made up between themselves and the Defendant, to try whether the Defendant has fully administered. If the finding of the Jury upon such collateral issue should be in favour of the Defendant, he could have judgment against, the heirs only for the costs of such collateral issue. If the Plaintiff failed to sue out *503a scire facias, the heirs would not be before the Court, and no judgment could be prayed against them. And in all cases where there was no real estate in the hands of the heirs, the administrator would lose his costs if he could not look to the creditor for them. Wherever the administrator, establishes the plea of “ fully administered,” he is entitled to judgment and execution for his costs against the Plaintiff immediately. Let the motion he allowed.