
    *Hill’s Ex’or v. Fox’s Adm’r.
    February, 1840,
    Richmond.
    (Absent StaÑard and Parker, J.)
    Decrees — Finality—Statute of Limitations — Applica- . tion. — A decree for a sum of money provides that if no property of the debtor can be found, other than that conveyed by him by a deed of trust and a mortgage, then he shall deliver up the trust and mortgage property to the marshal, to be sold to ' satisfy the money secured by the trust'and mortgage, and then to satisfy the decree. The debtor dying, a bill of revivor and supplement is filed against his administrator, to obtain payment of the decree out of the assets in his hands. And the administrator, by his answer, relies upon the 17th, and also upon the 5th section of the statute of limitations, 1 Rev. Code, ch. 128. Held, the decree in this case is not a final decree, and if it were, is not such a one as the statutes can apply to.
    On tbeythof February 1801, James Primm entered into a bond with Patrick Home, Leonard Hill, Nathaniel Pox and Charles Ralls his sureties, which, after reciting that he had been appointed sheriff of the county of Stafford by a commission from the governor, under the seal of the commonwealth, dated the 20th day of November 1800, was conditioned that Primm should truly and faithfully collect, account for and pay the taxes imposed by law in his said county.
    Primm 'having broken the condition of the bond, and Leonard Hill, one of the sureties, having been compelled to pay money on account thereof, suit was brought by him, in the superior court of chancery holden in -Richmond, to recover so much of what he had paid as he was entitled to. The bill alleged that Primm was insolvent; that Home had died insolvent and intestate, and no person had administered on his estate ; that Ralls had removed from Virginia, had died insolvent, and no person had administered on his estate ; and that Pox had conveyed his property in trust *and by mortgage to Robert Dunbar and Zachariah Vowles.
    The cause, after being revived in the names of Thomas Hill and William Hill as executors of Leonard Hill, was removed to the superior court of chancery at Fredericks-burg. That court, on the 30th of September 1819, decreed that the plaintiffs recover of the defendant Nathaniel Pox 558 dollars 70 cents, with interest on 255 dollars 57 cents, part thereof, from the 21st of January 1807, and on 303 dollars 13 cents, other part thereof, from the 25th of October 1810, until paid, and the costs expended by the plaintiffs and their intestate in the prosecution of this suit; “and if no property of the said defendant can be found, out of which this decree can be satisfied, or not sufficient for that purpose, other than that conveyed by the deed of trust and mortgage in the proceedings mentioned, that then the said Fox do deliver the property in the said deed of trust and mortgage mentioned, or so much thereof as may be necessary for the purpose of paying this decree and the sums herein aftermenlioned, to the marshal of this court, to be by him sold, after advertising the time and place of sale, in some newspaper printed in the town of Fredericksburg, for three weeks successively, to the highest bidder for cash ; and that he, out of the proceeds of such sale, shall, after defraying the costs of sale, first deposit in the bank of Virginia at Fredericksburg, subject to the future order of the court in this cause, the following sums of money, viz. £205. 4. with interest thereon at the rate of six per centum per annum from the 1st day of October 1801 until so deposited, and £250. 0. 2%. with the like interest thereon from the 17th day of May 1803 until so deposited, and then, out of the residue of the proceeds of sale, pay to the plaintiffs the principal, interest and ^osts aforesaid decreed to them; and that the said marshal report his proceedings herein to the court.” And *the bill of the plaintiffs, as to the defendants Robert Dunbar and Zachariah Vowles, was dismissed.
    At July rules 1820, a scire facias was awarded to revive the suit against Nathaniel W. D. Fox administrator of Nathaniel Fox; and at October rules 1820, the scire facias being returned executed, and the said Nathaniel W. D. Fox failing to appear and shew cause against the revival thereby sought, it was ordered that the suit stand and be revived against the said Nathaniel W. D. Fox administrator as aforesaid, and be in all things in the same plight and condition as it was at the time of the death of the said Nathaniel Fox deceased.
    The suit being continued upon the docket of the superior court of chancery holden at Fredericksburg, until that court was abolished, and afterwards continued upon the •docket of the circuit court of Spotsylvania, on the 27th of May 1836 an amended bill was filed, by leave of the latter court, in the name of Thomas Hill surviving executor of Leonard Hill, setting forth, that the administration of the said Nathaniel W. D. Fox has been revoked, and the estate of the said Nathaniel Fox committed to Benjamin Tol-son late sheriff of the county of Stafford, for administration; that John Moncure, the deputy of Tolson, took charge of the estate, and in the course of his administration collected considerable sums of money due the estate ; and the complainant is advised that the same should properly be applied to the discharge of the decree, which remains unsatisfied and in full force.
    Tolson and Moncure answered this amended bill, submitting whether the plaintiff is now entitled to revive his decree against either of them. They file a copy of the order of the county court of Stafford, shewing that on the 10th of November 1823, the letters of administration previously granted to Nathaniel W. D. Fox were revoked, and the estate of Nathaniel Fox committed to Tolson as sheriff of Stafford, for administration ; they *rely upon the fact that more than five years elapsed after the date of that order, before the amended bill was filed; and they pray the benefit of the statute of limitations. They also rely upon the fact that the decree was revived by scire facias against Nathaniel W. D. Fox as administrator of Nathaniel Fox, before proceedings were commenced against them, and though various executions were taken out against the said Nathaniel W. D. Fox on the said revived decree, yet no return was made on any such execution. And they pray the benefit also of the statute of limitations applicable to this state of the case.
    It appeared by a certificate of the clerk of the court of chancery, that on the 29th of October 1819, an execution was issued on the decree, on which a return was made, stating that the defendant was dead before the execution came to hand, and therefore it was not acted on ; that on the 30th of November 1821, a new execution issued against Nathaniel W. D. Fox administrator of Nathaniel Fox ; that Thomas Hill, one of the plaintiffs, returned it the 30th of October 1822, and obtained another, which he returned on the 28th of October 1823; that he then obtained another, which he returned the 22d of October 1824; that another was then issued, which was never returned; and that after-wards, on the 3d of June 1826, another issued, which was never returned.
    The circuit court of Spotsylvania decreed that the amended bill be dismissed, and that the plaintiff, out of the goods of his testator, pay to the defendants their costs.
    Ón the petition of Hill’s executor, an appeal was allowed from the decree.
    Harrison for the appellant.
    Daniel for the appellees.
    
      
      Decrees — Finality.—The principal case was cited on this subject in Cocke v. Gilpin, 1 Rob. 36, 45, 47, 48, 49, 53; Ryan v. McLeod, 33 Gratt. 379 ; Manion v. Fahy, 11 W. Va. 493 ; State v. Hays, 30 W. Va. 120, 3 S. E. Rep. 184; foot-note to Grymes v. Pendleton, 1 Call 54 ; foot-note to Fleming v. Bolling, 8 Gratt. 293.
      In Rawlings v. Rawlings, 75 Va. 87, it is said : “The inference which seems to have been drawn by Judge Tucker in Hill’s Ex’or v. Fox's Adm’r, 10 Leigh 587, 591, that the decree in that case was interlocutory because an attachment was necessary to enforce it, would appear not to be consistent with the established doctrine as laid down in Cocke's Adm’r v. Gilpin, 1 Rob. 29 ; and Judge Brooke, who sat in both cases, took occasion to say in the latter case, that he 'concurred in the result of the opinion delivered by the president (in the former case), that the decree was interlocutory, but certainly not on the ground that it was to be enforced by attachment, as said by the president; because all decrees must be enforced by attachment when any party is in contempt of the court, and'this necessity is most freciuent in cases of final decrees.' ”
      See further on this subject, cases and notes cited ‘in foot-note to Cocke v. Gilpin, 1 Rob. 20; mono-graphic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
   *TUCKRR, P.

I do not think it necessary, in this case, to decide whether a final decree in a court of equity is a judgment, within the meaning of the two clauses of the statute of limitations relied upon by the defendants, or within the equity of that statute. I am satisfied that this decree is not to be taken to be a final decree, and even if it were, it is not such an one as the statute could apply to. It is a decree, indeed, against Nathaniel Fox for a sum of money ; but it farther provides that if no property of his can be found, then he shall deliver up certain trust and mortgage property to the marshal, to be sold to satisfy the plaintiff’s demand. If the debt was not made by execution, this part of the decree came into operation ; and as it could only be enforced by attachment if obedience to it were refused, so it seems to me obviously to be without the provisions of either of the clauses of the statute. Had the creditor found it necessary to proceed to enforce this provision of the decree, it could only be done by attachment against Fox in his lifetime, or by bill demanding from his representatives, or others in possession of the property, a compliance with the decree, and enforcing it against them by attachment. It is true, this course has not been taken, the creditor still insisting that there are assets. But the provision itself gives the character to the decree; for the cause never could be out of the possession of the court, so long as its direct action might be called for to compel the delivery of the property. And even now it is competent to the party, upon failure to make his debt out of the assets of Fox, to amend his bill, setting forth that fact, and asking the enforcement of the alternative branch of the decree. I am of opinion, therefore, to reverse the decree and send the cause back for further proceedings.

Decree reversed, and cause remanded.  