Trin. 2 Car.
ONE had judgment on an obligation, as administrator of I. S. and died intestate; administration of his goods was granted to Pastal, who sued out a fieri facias on this judgment against the first obligor, and on two nihil returned had judgment and execution. Now Jermyn moved, the money being brought into court should be delivered to the administrator. For althought he ought not to have execution, yet there being a judgment, there is no remedy, except by writ of error.
Bramston, Serj. e contra.
He ought not to have execution. But the administrator of the first obligee, shall have a new action of debt, for now the judgment is ineffectual. But as long as the judgment may be executed, the party cannot resort to a new action upon the bond.
Jones, J.
Debt now lies on the first bond, but here judgment is given, which cannot be remedied on motion.
And on another day the court gave further time to the party to shew further cause, why the money should not be delivered to the administrator, according to the motion of Jermyn.
Quære. Whether, if the administrator of the first obligee should bring debt, whether this execution could be pleaded in bar? It seems not. Noy 81. Palm. 443.