The opinion of the court was delivered by
Gibson, C. J.A certiorari to remove the judgment in an action before a justice of the peace, has long been considered with us to be in substance a writ of error, as the remedy would be in form, were the justice the judge of a court of record. In the King’s Bench, the judgment of non pros, on a writ of error from the Common Pleas, is that the plaintiff in error take nothing by his writ, and that the defendant go without day as well as have execution of the judgment below for his debt or damages. In the Exchequer Chamber, or the House of, Lords,, the judgment is the same, except that there is no special award of execution; but the record is remitted-to the King’s Bench in order, as it is said, “that the plaintiff may have execution thereupon.” But this special award of execution is unlike an affirmance, which is itself a judgment quod recuperet; for if it were not, it would be final, and it is certain that a second writ of error may issue, the difference being, that it does not suspend execution, which may issue in pursuance of the award of it, after the second writ has been obtained. The practice of our own court was, I believe, the same as that of the King’s Bench, till the act of the 11th of March, 1809, which, in directing the record to be remitted for execution, produced no alteration in the nature of the judgment, though it changed the court by which it was to be executed. But it never was the practice, here or elsewhere, to treat a non pros, as a final judgment for the money; and in this respect there has been no difference between a writ of error and a certiorari. While in the case of an affirmance, the debt has been collected by an execution from the Com*25toon Pleas; the pra'ctice has been general; if not Universal; to collect it, in the case of a nonpros, by an execution from the justice.
On the remaining point, the argument of the plaintiff in errtír is Constructed on an analogy from a case that bears little resemblance to the present Assets which have not been brought into a. course of administration, but remain unblended with thé goods of the executor or administrator at his death, belong to the administrator de bonis nori, whose title relates to the time of his predecessor’s death; But to obtain the possession of assets, is not to administer them; and a suit, not founded on.a new contract or duty tó thé administrator himself, being but an instrument of collection; Vests no title in exclusion of that of the administrator de bonis non, who is entitled even to the fruit of á judgmént in the actual possession of his predecessor at his death, whenever it can be specifically distinguished and ascertained, just as if it had been received in consequence of a Voluntary payment or delivery. It is for this reason that neither the representative of the first adttiinistrator; for vVant of title, nor the administrator dé bonis non, ffer want of privity, cah, by .the commflii law, have execution of a judgment obtained fey thé executor or preceding administrator. The inconvenience of this 'in practice,-though incontestable in principle, caíled So 1'dücÜy for iedress, as to induce the legislature to interfere; Why should we introduce the same inconvenience into actions by guardians?' • Not for defect of title in the plaintiff on the record, áfter the attainment of the ward’s age; for he remains the,legal party, and perhapá the holder of the security; and even were he not beneficially interested; there would be no reason why he should not recover as a trustee. Indeed, the security being taken to him personally; it is not easy to see how the ward could recover in the name of any one else. But he is in fact interested so far as regard's thé settlement of his account; and though he were released from responsibility, on account of the debt; before recovery, had, yet; that would be á inattéi' exclusively between the ward and himself. The demurrer to thfe special plea, then, was well taken; but on the pleá of fiu'l liéí record, the judgmént cannot be sustained;
Judgment reversed.