May 7.
Judge Brooke,delivered the opinion of the court.*
The court is of opinion, that the proceedings on the scire facias, sued out by the appellee against the appellant, were insufficient to take the case out of the act of limitations. The non-suit submitted to by the appellant, restored the claim to the situation in which it stood before the scire facias issued ; and more than five years having elapsed, before the subpoena issued in this case, the plea of the act aforesaid, relied upon also in the answer, ought to have been sustained by the chancellor. The decree is, therefore, reversed, and the bill dismissed.
Judge Green did not sit in this ease.