The opinion of the Court was delivered by
Kennedy, J.The only question presented for consideration is, was the court right in holding the Act of Limitations to be a bar to the plaintiff’s claim in this action? In order to determine this it is necessary to refer to the Act, and see whether its terms can be made fairly to embrace this case. The words of the Act are, “All actions of debt grounded upon any lending or contract without specialty, all actions of debt for arrearages of rent, except the proprietaries’ quit-rents,” shall be commenced and sued within six years next after the cause of such actions or suits, and not after. Now, it is difficult to conceive how this action can be grounded upon any lending or contract; and as to its being brought for arrearages of rent, that is wholly out of the question. It would rather appear to be founded upon the judgment obtained against the defendant, which he ought to have paid with the assets in his hands belonging to the estate of the deceased debtor, instead of wasting and misapplying them, than upon a lending or contraet *361of any sort. Our Act in this respect is copied from the 3d section of the Statute of 21 James 1. c. 16; in regard to which it has been held that it does not extend to an action of debt brought against a sheriff for money levied by him on a fieri facias; Cockram v. Welby, (2 Show. 79, s. c.); 2 Mod. 212; nor to debt against a sheriff for an escape on a capias ad satisfaciendum; Jones v. Pope, (1 Saund. 37, 38); nor to debt for a copyhold fine, because, as Justice Twisden said, it was not founded upon a contract or lending. Hodgson v. Harris, (1 Levinz 271). It has also been held that it does not extend to an action of debt brought upon the 2d and 3d Edward VI. for not setting out tithes. Talory v. Jackson, (Cro. Car. 513); Warren v. Consett, (2 Ld. Raym. 1502). I am not aware of any case in which the statute has been set up, by an executor or administrator, as a defence in an action of debt against him for a devastavit. Many such actions have been brought and recoveries had ^herein, where no doubt in some of them the statute would have been a bar, had it been considered that it extended to or embraced such actions. For this reason, I take it, that no instance of the kind has-been mentioned or referred to by the counsel. That such action would lie against an executor or administrator, was first settled in Cory v. Thinne, in 1655; see Wheatley v. Lane, (1 Saund. 219); 1 Lev. 147; 2 Sid. 102; and no doubt many cases of a similar kind occurred afterwards, before the passage of our Act of Assembly, which was in 1713; some of which, it may well be presumed, must have been known to our Legislature at that time; from which the necessary inference would seem to be that they did not intend to include such action, or they would have employed language more clearly expressive of it. But the judgment against the executor or administrator has been considered the foundation of such action, instead of a lending or contract, and therefore evidently not within the terms of the Act. See Wheatley v. Lane, (1 Saund. 216. 219, a and b, in note).
Judgment reversed, and venire facias de novo awarded.