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DUNCAN, Adm'r v. HARGROVEs.
PARSONS, J. It was held in the case of Warren’s Ex’r v. Rist, 16 Ala. 686, that, under the act of 1821, the administrator de bonis non of an estate is the proper person to revive a judgment recovered by the first administrator as such, he having died after the recovery. This disposes of the first question in this case. 2. It is now contended for the defendant in error, that the declaration should have avered that the Clerk of the Supreme Court had certified the judgment of that court to the Circuit Court.
The declaration avers the recovery of the judgment in the Circuit Court; the writ of error; that the writ of error was by the Supreme Court dismissed, and that the judgment of the Circuit Court was here affirmed and judgment rendered "accordingly, “ as by the record and proceedings thereon, remaining in the said Circuit Court, will more fully appear,” &c. It is settled that the sci.fa. to revive this judgment was issued correctly from the Circuit Court, in which alone the judgment could be revived. — Barron, adm’r, v. Pagles et al., 6 Ala. 422.
The judgment of this court, in such cases, is to be certified to the Circuit Court. The record of this court is thus removed, so far as necessary in this proceeding, into the Circuit Court. The declaration refers to the record of this court remaining in the Circuit Court, by the words, “ as by the record,” &c. quoted above.
The objection made by the demurrer in this case is not, therefore, that the record is not there, or that there is no such record, but it is that it is not stated that it went there by certificate. However material the certificate might be upon some questions, we think it is not material on a demurrer, and more especially a general demurrer, under the statute. 80 3.
It is contended that there is' no authority to issue branch writs o>f sci.fa. in such a case as this-, where the defendants reside in different counties. If that were admitted, which we do not decide, however, the answer is that a demurrer to the declaration is not the appropriate mode of making the objection». We think there was error -in sustaining the demurrer to the declaration. Let the judgment be reversed, and die cause reimanded..