
    Duvall, et al. vs. Green.
    a.judgment ob-jnsiraim- of a noTeviiii'nce'on *omtfilof chincwy d«¡s'i-™thofhthrde ceased.’fora ,aie •uciideceafed0
    . Appeal from a decree of the Court of Chancery. 'Ihe bill in this case was filed on the 7th of June 1814, \>j Du-vall, as administrator de bonis non of N. Harwood, and J- E. Tilly, (now appellants,) against M. Ji Green, (the as flle sole heir of T. Talbot, deceased. It that Talbot and Tilly were the joint sureties for W. Goldsmith in his bond as sheriff, dated the 15th ofNo-vember 1 f91. and that suits were thereon brought in the narae state, at the instance and {or the use ofJV. Har-l}woo(l, against Tilly, and the executrix of Talbot, and “'judgments obtained. The judgment against Talbot’s executrix was signed on the 7th of June 1799; the last fieri facias issued thereon the 12th of November 1801, and a scire facias afterwards issued to revive the judgment, on. the 18th of September 1812 The bill also stated, that the executrix of Talbot had fully administered the personal estate of the deceased. That Tilly is bound and liable to pay the whole amount of the said judgment, when in justice and equity he ought to be answerable for only one half as joint surety aforesaid. That Talbot died seized of a considerable real estate, &c. and that the defendant, a minor, is his sole heir, &c. The bill seeks fora contribution of Talbot’s moiety of the said judgment, out of his real estate, which had descended to the defendant, a minor, charged, as the complainants alleged, with the payment of one half of the said debt, on the ground of a deficiency jf personal assets. The answer of the defendant, by her guardian appointed under a commission issued for that purpose, admitted that Talbot and Tilly were joint sureties for Goldsmith, and that judgments were obtained against Tilly, and the executrix of Talbot, as stated in the bill- But she alleges and avers, that the said judgment, against the executrix of Talbot, has no legal or binding effect upon her in any manner whatsoever, there being privity between the executrix of Talbot, and the defendant. She admitted that the execulrix of Talbot has fully administered his estate, and that Tilly is liable for whole amount of the judgment. She admitted that Talbot died seized of some real estate, which has become vested in the defendant; but she denies that the same, was devised charged with the payment of his debts. That the bond was executed by Tilly and Talbot, as sureties for Goldsmith, on the 15th of November 1791, and that the complainants’ bill was not filed until the 7th ofJune 1814; she therefore pleads and insists upon the length of time which has intervened between the execution of the. said bond, and the filing of the bill, as a complete bar against claim set up in the complainants’ bill of complaint, relies and insists upon the act of limitations as a full absolute defence against any liability for the present any other demand which may be made against her as bolding any part of the estate which belonged to Talbot his life -time.
    
      Kii/iy, Chancellor, (December term 1815.) The complainants appear to rely on the circumstance of less .han twelve ye irs having elapsed between the last fieri facias and the scire facias to revive the judgment. But 1 am of opinion, that the ground taken in the answer is correct In point of law, and that the judgment against the executrix cannot affect the heir or devisee. The admission of the execution of the bond does not prevent the relying on the length of time, or pleading the act of limitations; for at law the gist off the action would arise not from the execution of the bond, but from the breaches assigned in the replication. Decreed, that the bill be dismissed, but without costs. From which decree the complainants appealed fo this court.
    The cause was argued before Chase, Cb.J. and Buchanan, Faulk, Johnson, Martin, and Dorset, J.
    Braver, Jr. for the Appellants,
    contended, 1. That although Tilly's claim originated in Talbot's bond, yet his cause of action did not accrue until judgment was obtained against the executrix of Talbot, by the state, for the use of Harwood, and therefore the statute of limitations, if applicable, did not run until that time. 2. That the statute, of limitations is not applicable to this case. 3. That if the statute is applicable, its operation is prevented by the judgment against Talbot’s executrix, and the subsequent proceedings on it. 4. That the statute cannot be taken advantage of by answer confessing the claim.
    On the first and second points he referred to the act of July 1729, ch.25. Const. Art. 42; and 4 Jacob’s L. D. 173.
    On the third point he referred to the Stat. 4 & 5 W. & M l Inst. 209,a. 2 Selw. N. P. 522, 552, 527, 529; and the act of 1785, ch. 72, s. 5.
    On the fourth point he referred to Mi If. 212, (note Z.)
    
    Stephen, for the Appellee,
    cited Mason’s devisees vs. Peter’s adni’rs, 1 Mmf 437. Lansdale vs. Ghequiere, (ante 257;) and Harwood vs. lluwlings’s heirs, (ante 126.)
    
   DECREE AFFIRMED.  