#### The Governor to the use of John and Alexander Brown v. Meshack Franklin, executor of the last will of Gideon Edwards, deceased.

¡>From Surry.

Suit instituted on a Sheriff’s bond against Sheriff and his securities. Pending the suit one of tile 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 1S10, 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.

John and Alexander Brown, having recovered a judgment against James Parks, sued out a capias ad salisfad- *214 enduni, upon which he was ai*rested and committed to the custody of James Fitzgerald, Sheriff of Surry county. Some time afterwards Parks was at large, and the Plain-jn ^¡l0 wl.p; of ca. sa. brought suit, in the Superior Court of Law for the District of Salisbury, against Fitzgerald, the Sheriff, and his securities, Gideon Edwards, Reuben Grant, James Bryson, Harden Edwards and Jacob Sbepperd. The suit was brought on the Sheriff’s bond, and the breach assigned was the escape of Parks. The suit was returnable to March term, 1805, and at September term following, the death of Harden Edwards, one of the Defendants, was suggested, and leave given to proceed against the others. Administration on the estate of Harden Edwards was not granted until two terms had elapsed after his death, and the suit had abated as to him. At April term, 1808, the death of Jacob Shepperd, one of the Defendants, was suggested: and at October term, 1810, the death of Gideon Edwards, another of the Defendants, was suggested. . A scire facias was ordered against his representatives, but no return or proceeding was had thereon. At October term, 1817, the suit was dismissed at the Defendants’ cost.

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, and

Tavxor, Chief-Justice,

delivered the opinion of this Court:

This action is founded on a Sheriff’s bond, and bi’ought against the executor of one of the securities. The cause of action accrued before the year 1810; and the act of *215Assembly passed in that year, limiting such suits to a certain 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 44 all suits on Sheriff’s bonds, &c. if the right 44 action has already accrued, shall be commenced and 44 prosecuted within three years after the passage of this 44 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 the sixth section 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 y and it cannot be contended that the institution of a former action in time will make the present action in season.* The case is completely within the act relied upon, and there must be judgment for the Defendant.

*

Lutw. 261. Wilcocks v. Huggins, 2 Strange 907.