7 N.C. 213 | N.C. | 1819
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. 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. *166 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,