The Circuit Court evidently proceeded on the view, that under section 11; ch. 139, Code 1868, where there has been a change of parties by death, ten computable years after its date would bar the judgment, notwithstanding less than ten years had elapsed from the return-day of the last execution ; but that construction of that section has been overruled by the case of Laidley v. Kline’s Adm’r, 23 W. Va. 565, holding in point 5 of the syllabus, that under sections 11, 12, ch. 139, Code 1868, ajudgment may be revived by scire facias against a personal representative of the judgment-debtor within ten years of the return-day of the last execution issued thereon, although that time may be more than ten years after the date of the judgment: provided such revival he made within five years from the date of the qualification of such representative. Therefore the plea averring that more than ten years had elapsed from the date of the judgment was not good, because the scire facias alleged, that two executions had issued — the last returnable in May, 1860 — and the plea therefore did not answer the averment, and the demurrer to it should have been sustained.
The plea fixing the date of the judgment — 8th of November, 1856 — as thb initial day of the running of the statute, the replications were no answer to it; for excluding all the time, which they sought to exclude from computation, still there would remain ten years running time under the statute from *147date of the judgment, and in that view the replications were properly rejected; but if the plea had not based itself on the date of the judgment but on the return-day of the last execution, which it should have done, the replications would have been good.
The judgment upon the scire faeias must be reversed with costs to the plaintiff in error, and the plaintiff’s demurrer to the defendant’s plea sustained, and said plea rejected; and the cause is remanded to said Circuit Court for further proceedings.
Reversed. Reíianded.