Marshall, Ch. J.
delivered' the opinion, of. the spurt to the following effect.
The. act of assembly of Virginia, is copied almost literally from the.English statute of 8 and 9 W. III. c. 11. The case in 6 Mod. is a. decision expressly upon that statute, and is precisely in point, that the defendant upon the scire.facias can only plead what the intestate could have pleaded; and that it is not to be considered as a proceeding against the representative of die deceased, but a continuance of the original action.
The plea is such as could not have been pleaded in the original action, and is therefore bad.
The judgment must be reversed, and the .emanded for the defendant to plead to me original action, if he should think proper.
To a question by E. J. Lee, the Chief Justice answered, that 'if the plaintiff, in error should obtain a judgment in the court below, it will of course be with costs. So in all cases of reversal, if this court direct .the court' below to enter • judgment for the plaintiff in error, the court below will,.of course, enter the judgment with the costs of that court.
The .court below considered this case as coming witüin the act of congress, vol Up 71. passed 24 th 1789, Authorizes the court (t to render judgment for or against the executor gr adminisvr.qtor, as the case may require." It does not appear whether that act. was taken into consideration by this court.