Faw v. Roberdeau Executor

• Decision Date: 01 February 1805
• Citation: 7 U.S. 174,2 L.Ed. 402,3 Cranch 174
• Parties: FAW v. ROBERDEAU'S EXECUTOR
• Court: U.S. Supreme Court

7 U.S. 174

3 Cranch 174

2 L.Ed. 402

FAW v. ROBERDEAU'S EXECUTOR.

February Term, 1805

THIS was an action in the circuit court of the district of Columbina, for the county of Alexandria; and the question arose upon the construction of the act of assembly of Virginia, for 'reducing into one, the several acts concerning wills,' &c. Revised Code, p. 169, c. 92, § 56, which is in these words, viz. 'If any suit shall be brought against any executor, or administrator, for the recovery of a debt due upon an open account, it shall be the duty of the court, before whom such suit shall be brought, to cause to be expunged from such account, every item thereof, which shall appear to have been due five years before the death of the testator, or intestate. Saving to all persons non compos mentis, femes covert, infants imprisoned, or out of this commonwealth, who may be plaintiffs in such suits three years after their several disabilities removed.'

The declaration was for plank, scantling, and foundation-stone, lent by the plaintiff to the defendant.

For the like materials, sold and delivered, and for money had and received. The defendant pleaded the general issue, and a verdict was taken for the plaintiff, subject to the opinion of the court, upon the following facts:

'That the debt found by the verdict was due by the defendant's testator, to the plaintiff, in the year 1786. That the testator died in 1794. The plaintiff was a resident of, and in the state of Maryland, and out of the commonwealth of Virginia, when the articles were delivered for which the suit was brought, and when the debt was contracted; and continued so in Maryland, and out of the said commonwealth, until the month of June, 1795, when he removed to Alexandria to live, and hath lived there ever since. That in the year 1786, after the cause of action accrued, the plaintiff passed through the town of Alexandria, and was for a short time therein, but not as a resident thereof.'

Upon this statement of facts, the judgment of the court below was for the defendant; and the plaintiff brought the present writ of error.

E. J. Lee, for plaintiff in error. The plaintiff was not a citizen of Virginia, when the debt was contracted. It does not appear that he did not commence his action within the limited time, after his becoming a citizen.

WASHINGTON, J. Does it not appear that Faw was in Virgima after the cause of action accrued?

E. J. Lee. Only as a traveller. It does not appear that the testator lived in Virginia at that time. The plaintiff had three years to bring his action, after removal into Virginia. The writ is no part of the record, unless made so by a bill of exceptions, and it is not stated when the action was brought.

Swann, contract. The act of limitation begins to run from the time the plaintiff passed through Alexandria, after the cause of action had accrued. His disability

(according to the expression of the act of assembly) was then removed, and he ought to have brought his action within three years from that time.

The plaintiff came to reside in Alexandria, in 1795. The suit...