The party against whom process of execution issues after it has lain five years, may have it set aside on motion, and put his adversary to his scire facias to revive the judgment; but the writ so issued is not void. Whether emblements are assets depends on the evidence; they may be so in a certain event. The evidence is admitted.
The evidence for the plaintiff being closed,
WRIGHT J. The statute provides (29 O. L. 235) that in case of a death between the 31st of December and the 1st of March,the emblements growing on the land of the deceased, shall pass to the heir with the land, but if the death occur after the 1st of March, the emblements which shall be severed before the 31st of December, shall be assets in the hands of the executor or administrator. The death here took place several years before the crop of corn was planted which was levied upon, and the corn, therefore, was not growing at the death, and not within the provision declaring it assets. By what authority the plaintiff sustains the right to seize the crop on descended lands, several years after the descent, as assets in the hands of the administrator, we are left to conjecture; none is cited to us. It seems to us too clear for dispute, the corn crop in question was not assets, nor subject to levy on an execution *767against the administrators. In that state of case, the sale by the-officer transferred no right to the plaintiff, upon which he can. recover, and the non suit is ordered.
Douglas, for the plaintiff,moved to open up the non suit and for a new trial, insisting that the decision of the court°had taken him by surprise, as he was unaware of the provision of the statute; and, also, that if the emblements belonged to the heir, but had come tO' the possession of the administrator, the law would not protect him, by screening them from execution.
*WRIGHT, J. We do not discover any mistake of the [740' law in ordering the non suit. As to the right of the administrator, that question must be settled between him and the heir; the plaintiff has acquired no legal authority to adjust it. The motion, is overruled.