
    Gee v. Hamilton and Wife.
    Decided, Dec. 4, 1817.
    1, Judgments — Scire Facias on — Statute of Limitations. —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,” tho’ more than ten years elapsed between the return of the execution, and date of the scire facias.
    2. Pleading and Practice — Issue on Two Pleas — Verdict on One — Effect.—Issues being joined on the pleas of no such record, and the. Act of Limitations; if the Jury find for the plaintiff on the second plea, and the Court, without taking any notice of the first plea, enter judgment; such judgment ought to be reversed; — notwithstanding, on previous pleadings, (which by consent were set aside,) the Court had pronounced that, in fact, there was such a record.
    Susanna Hicks obtained judgment against Charles Gee in Lunenburg County Court, March 14th, 1789, and immediately took out a fi. fa., on which the return was “no effects.” She afterwards married Hamilton, and they sued out a sci. fa. on the judgment, April 24th 1812. The defendant pleaded, no such record, and the act of limitations. To the first plea, the plaintiff replied, there is such a record; concluding to the Court: — to the second, that a fi. fa. was sued out on the judgment in . *March 1789, and returned “no effects;” but it did not conclude to the Court or the Country, and no issue was joined upon it. The record being inspected, the Court decided the issue on the first plea in favour of the plaintiffs, and then a jury was sworn, whose verdict was that the act of limitations was not a bar to the sci. fa. ; and judgment was entered for the debt &c.
    The defendant appealed to the Superior Court of law; from which, by consent, the cause was sent back, for new pleadings. The same pleas and replications, as before, were again filed, and issue joined on them: and, a verdict being found for the plaintiffs on the second issue, the Court without taking any notice of the first issue, gave judgment for the plaintiffs.
    A question of law was made, at both trials, in the County Court, whether, under the circumstances of this case, the act of limitations was a bar? The County Court decided that it was not. The defendant excepted and appealed to the Superior Court, where, the last mentioned judgment being affirmed, he appealed to this Court.
    Leigh for the appellant,
    admitted that the Act of Limitations, (Rev. Code of 1792, ch. 76, §5,) was not a bar to the scire facias. The Act is so explicit as not to admit of doubt or argument. But it is equally clear, that, while the plea of no such record remained undisposed of, the County Court could not give judgment; and, for that cause, both judgments ought to be reversed.
    Bouldin contra,
    said, that, though the issue on the plea of no such record was not formally disposed of, yet, as it sufficiently appeared that there was such a record, the judgment ought not to be reversed for so trivial an oversight.
    
      
       Judgments — Scire Facias on — Statute of Limitations. —The principal case is cited in Smith v. Hutchinson. 78 Va. 687, as illustrating the principle that where in a case in which no execution issued on a judgment within a year after it was obtained, and which prima fade is barred, the practice is for the clerk to issue a sdve facias and leave the defendant to plead the statute, and the plaintiff to reply the exceptions, so far as they may be applicable to his case. The principal case is also cited in Mercer v. Beale, 4 Leigh 204. See further, monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425; mono-graphic note on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591. To the point that the court cannot of its own motion, plead the statute of limitations, the principal case is cited in Humphrey v. Spencer, 36 W. Va. 18,14 S. E. Rep. 413.
    
   This Court was of opinion, that both judgments were erroneous in this, that the plea of nul tiel record had not been tried. Both were therefore reversed, with costs, and the cause remanded, for trial of that issue, to be ha.d in the County Court.  