
    Lee v. Peachy.
    [Friday, May 7, 1802.]
    Sheriffs — Motion for Clerks’ Tickets — Limitations.— TUe act of limitations will not,bar a motion against a .Sheriff, for Clerks’ tickets, put into his hands to collect.
    In February, 1798, Eee, as executor of John Eee, Clerk of Essex county, made a motion, in the County Court, against Peachy, as administrator of Samuel Peachy, Sheriff of the county, for some Clerk’s tickets put into the hands of the said; Samuel Peachy’s deputy, in 1774. The motion was continued from Court to Court until November, 1798, when the defendant pleaded non assumpsit and the act of limitations ; to which the plaintiff replied generally. The County Court gave judgment for the plaintiff; and the defendant appealed to the District Court, where the judgment of the County Court was reversed : From which judgment of reversal, Eee appealed to this Court.
    Warden, for the appellant.
    Under the circumstances of the present case, the act of limitations would not have been a bar in an action ; for, there were not five years during which there were proper characters to sue and be sued; and the Sheriff was but a trustee, in whose favor the act of limitations never runs. These objections appty with greater force in the case of a motion.
    Smith, contra.
    There are two questions in this case. 1st. Whether the act of limitations applies to a motion? 2d. If so, whether there was a sufficient lapse of time in the present instance to bar the motion?
    That the act does apply in the case of a motion, is proved by the decision of the Court in the case of The Auditor v. Graham, 1 Call *475. The Eegisla-ture by giving the plaintiff a summary remedy, could never have intended to vary the rights of the defendant, or deprive him of any defence, which he might have set up to the action. It could never have been their intention that what would be a good plea to one suit, should not be a good plea to another suit for the same thing.
    Upon calculation it will be found, that there was an aggregate of five years, during which there was a competent person to sue and be sued. On both grounds, therefore, tile judgment was right; and ought to be affirmed.
    LYONS, Judge, to Warden. Is there any case where a motion of this kind has been allowed against executors?
    Warden. I do not recollect.
    Cur. adv. vult.
    
      
      The principal case is cited in Van Winkle v. Blackford, 38 W. Va. 582, 11 S. E. Rep. 29.
    
   LYONS, Judge.

Delivered the resolution of the Court, that the judgment of the District Court was to be reversed, and that of the County Court affirmed; because, this Court considered the act of limitations as not applying, inasmuch as the plaintiff might have sued the Sheriff’s bond; and, as that right of action was still existing, it could not be true that the act of limitations would bar the motion.  