1. It is very clear to us that a judgment on a sci. fa. to revive a judgment against an administrator is conclusive of assets, and that he might plead in bar of the revival plane aclministravit. The revived judgment is against him as administrator, and to be levied as other judgments against him as such administrator. If he has no assets, there is no reason for the revival. At common law, the only way to make an administrator or executor liable, personally, on a judgment against his intestate was to make him a party by sci. fa. Otherwise, the action of debt, suggesting a devastavit, would lie for want of privity — he was no party to the judgment: See Williams on Executors,1700; 2 Lord Raymond, 972; 1 Saunders’ Reports, 219. Such being the law, and the parties having been, as the bill states, misled by the judge, as to the effect of the judgment, we think there wras error in the judgment sustaining the demurrer. As the bill states, the administrator offered to plead plene administravit. This plea was overruled as not a proper plea to the proceeding. This is presumed to be on the motion of the plaintiff in sci. fa. Can he meet the defendant by such a motion — take advantage of the judgment and then repudiate it? In conscience and equity, to permit him to do this would be to permit him to commit a fraud — to get an unconscientious advantage by repudiating his own action. Is this not a case falling within section 3129 of the Code? Is not this a defense that the *350party was prevented from making, by fraud or accident, or the act of the adverse party without any fraud or negligence on his part. Had he not a right to rely on the statement of the court that he would not permit a judgment which would injure him by his failure to plead plena administravit. Whilst we feel the importance of maintaining, in its integrity, the rule that judgments are conclusive, yet we think it error if the judge or chancellor does not take care that so clear a case of surprise as this shall not hurt.
2. We held, in the case of Rutherford vs. Crawford, at this term, that the two acts of 1866, pamphlet 1865 and 1866, pages 22, 71, transferred to the county court all judicial matter of the old inferior court; that under the words suits on the docket (civil cases in the title,) was included all unsatisfied and unperformed judgments. -The constitution of 1868 transferred to the superior court all the books, papers and proceedings, of the county courts, and the unfinished business thereof: Const. 1868, art. xi., sec. 7. In view of the fact that both the inferior and county courts were abolished, we think these provisions should be liberally construed, so as to prevent a failure of justice, and Our judgment is that whenever it is necessary for the purposes of justice to take any action by either party in relation to any of the judgments of said courts, the superior court, having, as it has, custody of the records, may do what either of those courts might have done in the premises.
Judgment reversed.