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and the executor of such person dying ought not to be prejudiced by the testator's death, to lose a writ which was well commenced. Answer, that the said rule, viz. quod actus Dei nemini facit injuriam, admits of several exceptions, and it will prejudice the party in divers cases. The statute de bonis asportatis, &c. is an instance; for at common law, before the said statute made, by the act of God executors were prejudiced in quare impedits ; and in all actions and cases where damages only are recoverable, which arise ex delicto, unless in cases which arise upon deeds or contracts. A pawn is not redeemable after the death of the pawnor. In appeal the next hejr dies after the appeal brought, the appeal is lost. And, for this reason, the said rule will not support this writ by journeys accounts.

And in the case of Hayward and Kinsey, (a) Holt, Ch. J. observed, that as to the journeys accounts, the plaintiff's intestate brings an action within six years; and it is proceeded, and pending it the plaintiff dies, *and six years are [*162] elapsed in the interim, it were reasonable that the administrator might have another action within convenient time, and have benefit of the first action for the preservation of the right against the statute, as the practice has been in cases of outlawry. But if an heir in tail bring a formedon within five years after a fine levied by a third person, who is not his ancestor in tail, but a discontinuee for the purpose, and pending it, and after the five years, the issue dies, whether the next heir in tail shall have benefit of this formedon, by bringing a new one in convenient time? It were reasonable he should, but this has not been determined. And it is plain journeys accounts will not lie in this case; for the rule is, that it must be between those that were parties to the first writ. And besides, the new writ is to be the same with the former; and the writ that lay for the ancestor, or for the testator, is not the same that lies for the issue or executor, but one of another nature. If an assise be brought within twenty years after a disseisin, and before judg

(a) 12 Mod. 571.

[graphic]

ment twenty years pass, and then the demandant dies, the heir cannot have another assise, but he must have a writ of entry; and it will be hard to prove the heir can proceed by journey's accounts in that case; for it is another writ he is entitled to now by the death of his ancestor; yet still he may be out of the statute of limitations,

CHAP. VII.

[ *163 ]

Of the Fourth Section.

THE time within which actions are, by the third section, directed to be brought, is enlarged by the words, and by an equitable construction of the fourth section, [1] which enacts,

[1] Vide page 118, note [1.] & page 119. note (1.) In the case of Alexander & others vs. Pendleton, (8 Cranch's Rep. 470.) MARSHALL, Cb, J. delivering the opinion of the Court, said ; “But if Charles Alexander had permitted that sa former ) suit to

be dismissed, and had filed a new bill, he would not have been " at liberty, in the computation of time to avail himself of the “pendency of the former soit, unless he could have connected the "two suits together. The law is the same where a suit termi“nates by abatement and is not revived, such a suittakes no time “out of the Act of Limitations."

In the case of Cawood vs. Whethcroft, Admr. &c. 1 Har. & Johns. Rep. 103.) which was an action of assumpsit; the writ issued on the 11th January, 1797; 'and the declaration contained sundry counts. The defendant pleaded several pleas, and amongst others, "non assumpsit intestatoris infra tres annos.The plaintiff replied to this plea, that he did, within three years after the cause of action accrued, towit on the 1st of March, 1784, for the recovery of damages, &c. prosecute a writ of capias ad respondendum, out of Charles County Court, against the intestate, and the proceedings in the said action were set out, shewing that the same was referred to Arbitrators in 1786, and that no award being returned, it was at the instance of the plaintiff

, by order of the Court, struck off in August, 1796, and that the present suit was brough within ope year afterwards, towit, on the 11th of January, 1797. The defendant demurred to the replications; and the General Court ruled the demurrer good, and gave judgment for the defendant.

Though the Statute of Limitations commence running, if suit be brought within time, and the defendant dies, and no letters testamentary are taken on his estate till the three years have expired, the Statute is no bar if a new suit be brought without delay against the executor. Parker's Exors. vs. Fassitt's Exors. 1 Har.& Johns. Rep. 337.

“that if, in any of the said actions or suits, judgment be given

In an action of trespass quare clausum fregit, the Statute of Limitations was relied on in bar of the suit, but it appearing that the plaintiff had formerly commenced a soit in this Court (provincial Court,] within three years next after the cause thereof first accrued; and recovered a judgment, which was reversed in the Court of Appeals; that the said former suit was brought for the same cause of action as the present suit; and that the present suit was brought within one month after the said reversal; It was Held, that the Statute was no bar; and judgment was given for the plaintiff. Drane vs. Hodges, 1 Har. & McHen. Rep. 518..

In the case of Schnertzell vs. Chapline, (3 Har. & McHen. Rep. 439.) which was an action of assumpsit on a promissory note dated the 27th of March, 1789 payable on demand. The original writ issued on the 25th of October, 1793. The defendant pleaded the Statute of Limitations. To which the plaintiff under the Statute of 21 Jac. 1. s. 16 c. 4. replied a former suit, wherein the judgment was arrested. To this replication the defendant demurred generally; the Court gave judgment upon the demurrer, for the plaintiff.

The Act of Limitations had run about eighteen months, then the plaintiff sued, and his action was continued in court about four years, and then he was nonsuited, and upwards of 12 months after that he renewed his action, and the defendant pleaded the Statute of Limitations.Per CURIAM; Haywood and Stone, Justices. " If a suit be instituted before the thțee years, are expired, and "there is a nonsuit after the three years, the plaintiff may sue again " within 12 months, and then only the time elapsed before the first "action shall be counted.” But whether if the action be commenced after 12 monihs from the non'suit, the time between the commencement of the first action and the nonsuit shall be counted, or only the time before the commencement of the first action, and the time after the nonsuit and before the commencement of the second action ? Quære. Anonymous, 2 Hayw. Rep. 63.

Detinue for negroes. It appeared these negroes had been given by will, to the widow of the Testator for life; and after her death to the plaintiff's. She married, and her husband sold them to a person under whom the defendant claimed. And after her death, whilst in the possession of the defendant, or the vendee, these plaintiffs sold them. The purchaser sued and was nonsuited, because his action was improperly commenced. Then the plaintiffs sued in the present action, but before its commencement the three years had elapsed, and the question now was whether the verdict which had been given in the former action could now be given in

for the plaintiff

, and the same be reversed by error, or a verdict

evidence: and after'much argument the Court decided it could not; for that between the vendor and vendee of a chose in action there is no privity which the law will recognize. Halseys' Administrators vs. Buckley, 2 Hayw. Rep. 234.

A Judgment in Ejectment never executed, and under which possession has never been surrendered, does not stop the running of the statute of Limitations. Smith vs. Hornback, 4 Litt. Rep. 232.

The right to issue a scire facias upon a judgment, is not barred by the Act of Limitations in a case where execution was issued in due time, and returned "no effects,” though more than ten years elapsed between the return of the execution and date of the scire facias. Gee vs. Hamilton &. Ux. 6 Munf. Rep. 32.

A bill of review to a decree pronounced before the 11th of February, 1814, (see acts of 1813, c. 12, $3.) could not be revived after five years had elapsed from the date of such decree. Shepherd vs. Larue, 6 Munf. Rep. 529.

The three years limited for the prosecution of a petition for review, are to be computed from the term of which the judgment was entitled. Leighton vs. Lithgow, 2 Greenl. Rep. 114.

A Judgment in ejectment was entered for the plaintiff at September term 1807, with an agreement, that execution should not issue-thereon before the decision of the Court of Appeals in the case of D. against P.; and that is that judgment was reversed, then the above judgment was to be struck out. On this judgment the defendant brought a writ of error on the 3d of July, 1811, and the judgment referred to was affirmed in the Court of Appeals at December term 1813-Held, that the writ of Error be quashed, it having been sued out after three years bad elapsed from the time of the rendition of the judgment. Dorsey vs. Dorsey's Lessee, 4 Harr. &. Johns. Rep. 216.

Where a confession of judgment by way of supersedeas, was entered into on the 17th of November, 1815, to stay execution, agreeably to the act of 1814, ch. 84. [Maryland,) on a judgment rendered on the 9th of May, 1815, and a writ of error issued on the 2d of February, 1822, to remove the proceedings on the judgment by confession. Held, that the writ of error be quashed, more than three years having elapsed from the judgment by confession and the issuing the writ of error. Andrews of Al. vs. Bosleys, 6 Harr. & Johns. Rep. 99.

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