Opinion
05-07-1823
Peyton's Administrator v. Carr's Executor
Stanard, for the appellant. Harrison, for the appellee.
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 nonsuit, because the defendant having pleaded " fully administered," the plaintiff was unable to prove assets. He 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.
To 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 county 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 28th 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.
The decree is, therefore, reversed, and the bill dismissed.
Stanard, for the appellant.
Harrison, for the appellee.
OPINION
Brooke, Judge [*]
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.
[*]Judge Green did not sit in this case.