DENEALE V. ARCHER, 33 U. S. 528 (1834)

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U.S. Supreme Court

Deneale v. Archer, 33 U.S. 8 Pet. 528 528 (1834)

Deneale v. Archer

33 U.S. (8 Pet.) 528


By the revised code of Virginia, it is enacted that

"judgments in any court of record within this commonwealth where execution hath not issued may be revived by scire facias or an action of debt, brought thereon within ten years next after the date of such judgment, and not after."

The proceedings in this case were a scire facias on a judgment against the testators against his executrix, and an execution on the judgment rendered against her on that scire facias. By the court:

"The writ of scire facias is no more an execution than an action of debt would have been, and the execution which was issued on the judgment against the executrix is not an execution on the judgment against George Deneale."

It is understood to be settled in Virginia that no judgment against the executors can bind the heirs or in any manner affect them. It could not be given in evidence against them.

If the defense set up by the defendants in the district court had rested on the presumption of payment, the scire facias against the executor would undoubtedly have accounted for the delay and have rebutted the presumption, but the statute creates a positive bar to proceeding on any judgment on which execution has not issued unless the plaintiff brings himself within one of the exceptions of the act. Proceedings against the personal representative is not one of the exceptions.

This case came before the Court on an earlier day in the term and was dismissed in consequence of an informality in the writ of error (see the preceding case). By consent of the parties, the proceedings were amended and a writ of error in proper form was substituted.


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