From Surry.
Suit instituted on a Sheriff's bond against Sheriff and his securities. Pending the suit one of the securities dies, and a scire facias is ordered against his representatives; but this sci. fa. never issued, nor was any proceeding ever had upon the order. The suit is continued against the other Defendants for many years, and then dismissed. During the pendency of this suit, and after more than three years had elapsed from the death of one of the securities, a suit is instituted against the executor of the last will of the deceased security, and to this suit he pleads in bar the act of 1810, ch. 18, limiting the time for bringing suits on Sheriff's bonds, c. Plea sustained; for
The act limits the bringing of the suit to three years after the right of action accrues; and neither the pendency of the suit against the other Defendants, nor the order for a sci. fa. to issue against the representatives of the deceased security, will take the case out of the operation of the act.
At September term, 1814, of Surry Superior Court, the Plaintiffs instituted this suit against Meshack Franklin, the executor of the last will of Gideon Edwards, deceased; and the defendant pleaded in bar the act of 1810, ch. 18, entitled "An act relating to bonds given by Sheriffs and Clerks of the Superior Courts, and Courts of Pleas and Quarter Sessions." Upon the trial of the case, the Court was of opinion that the plea should be sustained. The Plaintiff appealed.
TAYLOR, Chief Justice:
This action is founded on a Sheriff's bond, and brought against the executor of one of the securities. The cause of action accrued before 1810; and the act of Assembly passed in that year, limiting such suit to a certain (215) period, is relied on by the Defendant as a bar to the action. The provision of the act of 1810, ch. 18, is express, that "all suits on Sheriff's bonds, c. if the right of action has already accrued, shall be commenced and prosecuted within three years after the passage of this act, and not afterwards." The suit, originally commenced against the Defendant's testator, abated by his death, the suggestion of which was made on the record in October, 1810; and the circumstance of its continuing to be prosecuted against the other parties, cannot affect the operation of the act upon this case — Between the abatement of the suit against Edwards, and the commencement of this action, nearly four years elapsed, whereas but three were allowed, even in an original action. The act contains no clause, upon the equitable construction of which the right of the Plaintiffs is saved; nothing, corresponding to section 6 of the act of limitations of 1715, allowing a year after a reversal or arrest of judgment, to commence a new suit. Nor could such a clause possibly embrace this case, on account of the great lapse of time; and it cannot be contended that the institution of a former action in time will make the present action in season. Lutw. 261. Wilcocks v. Huggins, 2 Strange 907. The case is completely within the act relied upon, and there must be judgment for the Defendant.
Cited: S. v. Hawkins, 28 N.C. 430. (216)