George M. Barnes, Administrator, and Ann Coor, Administratrix of John Coor, deceased, vs. John McLemore.
Where a judgment has been recovered, and the defendant therein has executed a forthcoming bond with surety, and the surety has died, it is error for the plaintiff in the judgment to sue out a scire facias to revive it against the administrator and heirs of the surety in the forthcoming bond; the administrator and heirs cannot legally be thus joined.
In error from the circuit court of Copiah county; Hon. Thomas A. Willis, judge.
John McLemore, on the first day of May, 1838, recovered a judgment against John W. Arnis in the Copiah circuit court, for $>212-53; upon which execution issued, and was levied by the sheriff. A forthcoming bond was given by Arnis with John Coor as'security, which was forfeited on the third Wednesday of October, 1838.
On the 11th of September, 1844, in vacation, a scire facias issued against Geo. M. Barnes and Ann Coor, administrators of John Coor, deceased, and against the heirs of Coor, jointly, to revive this judgment, which writ was served, and at the November term, 1844, the cause was continued.
*317At the May term of the court, 1845, an alias scire facias was ordered and issued. This scire facias run jointly against George M. Barnes, administrator, and Ann Coor, administratrix, of John Coor, and against the heirs of Coor by name, one of whom, Elizabeth, is stated to be the wife of Shelton H. Heard, but the husband is not joined. This writ calls upon them to show cause why said McLemore should not have his judgment against them for his debt and damages. The writ was served, and at the May term, 1846, the cause was continued.
At the November term, 1846, the plaintiff appeared by his attorney, and the defendants made default, and judgment was rendered against the administrators and against the heirs of Coor, as also against Amis, the surviving defendant, on the scire facias.
At the next term of the court, in May term, 1847, the plaintiff, without any further service of scire facias, or other notice to the administrators, the heirs of Coor, or the surviving defendant, took another judgment against all the parties. And the defendants sued out this writ of error.
TP". P. Harris, for plaintiffs in error,
Assigned fifteen causes of error in the proceedings upon the scire facias, but insisted especially upon the error in reviving the judgment against the heirs of Coor jointly with his administrators •, before a previous revival as to them and return of nulla bona.
Mr. Justice Thachee
delivered the opinion of the court.
John McLemore recovered a judgment in the Copiah county circuit court in May, 1838, against John W. Arnis. Upon the execution issued on this judgment, a forthcoming bond was executed by the defendant in the execution with John Coor his surety, and returned into court forfeited. As late as September, 1844, a scire facias was taken out against the administrator and administratrix, and also the heirs of John Coor, deceased. Upon this scire facias, a judgment was ultimately rendered against the surviving defendant in the judgment upon the for*318feited forthcoming bond, against the administrator and adminis-tratrix, and likewise against the heirs of John Coor, to be levied upon the goods and chattels, and lands and tenements, See.
Numerous errors are claimed to exist in the whole proceeding, from the issuance to the final judgment upon the scire facias. It is sufficient, however, to say, that it was erroneous to have issued the scire facias against the administrator and administra-trix jointly with the heirs of John Coor. They could not legally be thus joined. The judgment also was equally erroneous. The same conclusion could also be arrived at upon various other grounds.
The judgment must be reversed, and the scire facias directed in this court to be quashed.