#### Peyton’s Administrator v. Carr’s Executor.

May, 1823.

Limitation of Actions* — Judgment against Executor.— A judgment obtained against a testator in bis lifetime, and not revived against bis personal representative after bis death, within five years from the time of bis qualification, is barred by the statute of limitations.

Same* — Suspension of Statute — Nonsuit.†—The operation of the statute will not be prevented by a scire facias sued out within the five years, on which the plaintiff suffered a non-snit.

This was an appeal from the Fredericksburg chancery court.

William Carr, in his life-time, obtained a judgment against Yelverton Peyton, in August, 1794. Both parties having died, the" executor of the plaintiff sued out a scire facias against the administrator of the defendant, to revive the said judgment. At the trial of the scire facias, the plaintiff suffered a non-suit. Some years afterwards, Carr’s executor filed a bill in chancery against Peyton’s administrator, alleging, that he had been compelled to suffer a non-suit, because the defendant having pleaded “fully administered,” the plaintiff was unable tó prove assets, tie alleges, that the defendant has abundant assets; which, however, he is unable to prove by evidence, and therefore calls upon the defendant for a discovery.

To1 this bill the administrator of Peyton pleaded, that the original subpoena in this cause was not sued out within five years after the administration with the will annexed of the estate of the said Yelverton Peyton had been committed to the defendant. This plea was overruled by the chancellor, and the defendant ordered to answer.

The defendant accordingly answered, alleging various matters of defence, which it is not material to notice.

It appeared, by the records of Fauquier courtty court, that the original judgment was obtained in August, 1794, on which an execution issued in the same month, but was *never returned. The administrator of Peyton qualified on the 38th day of February, 1803, and the subpoena in the chancery suit was sued out in 1809. The scire facias was issued and served in 1804.

The chancellor ordered an account of the administration of Peyton’s estate to be made up, and finally rendered a decree in favor of the plaintiff. From this decision, the defendant appealed.

Stanard, for the appellant.

Harrison, for the appellee.

*

 limitation of Actions. — See monographic *note*on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.

†

Same — Suspension of Statute — Nonsuit.—It is of every day’s occurrence tbat a party loses his remedy by the operation of the statute of limitations, where lie lias been forced to suffer a nonsuit. Catlett v. Russell, 6 Leigh 372, citing principal case.

See principal case also cited in Smith v. Hutchinson, 78 Va. 687.

*

JtrDGE Green did not sit in this case.

JUDGE BROOKE,

May 7. — delivered the opinion of the court.*

The court is of opinion, that the proceedings on the scire facias, sued out by the appellee against the appellant, were insufficient to take the case out of the act of limitations. The non-suit submitted to by the appellant, restored the claim to the situation in which it stood before the scire facias issued; and more than five years having elapsed, before the subpoena issued in this case, the plea of the act aforesaid, relied upon also in the answer, ought to have been sustained by the chancellor. The decree is, therefore, reversed, and the bill dismissed.