¶1delivered the opinion of the court.
¶2John Cude recovered a judgment in the Circuit Court of Hickman county against John L. Spence, administrator of Mark R. Patterson, dec’d, upon which a writ offieri facias was issued, and returned nulla bona. Whereupon he caused a writ of scire facias to be issued against the defendant, seeking to charge him de bonis propriis. To the scire facias the defendant pleaded:
¶31st. That he was discharged from the office of administrator before the judgment, and B. B. Saterfield appointed administrator, to whom he delivered over the assets.
¶42d. That he did not waste or consume the assets of his intestate.
¶5To the first plea, there was a demurrer, which was overruled by the court. To the second, there was replication and issue, upon which the jury found a verdict for the plaintiff. Upon which the court arrested the judgment, and the plaintiff appeals to this court.
¶6We think the judgment of the Circuit Court is erroneous.
¶7The 1st. plea is bad, and the demurrer to it should have been sustained. It constitutes no defence to the scire facias; if true, it ought to have been pleaded to the original action.
¶8The -2d. plea is also bad, but the plaintiff took issue upon it *279and it has been found in his favor, and he was entitled to judgment upon it.
¶9Let the judgment of the Ciicuit Court be reversed, and now given for the plaintiff for the amount found in his favor by the jury-