A judgment was obtained in the circuit court of the United
States for the District of Virginia in December, 1821, and a writ
of
fieri facias was issued on this judgment in January,
1822, which was not returned, and no other execution was issued
until August, 1836, when a
capias ad satisfaciendum was
issued against the defendant.
Held that this execution
issued illegally, in consequence of the lapse of time between the
rendition of the judgment and the issuing of execution in 1836.
The result of the opinion of the Supreme Court in the case of
Wayman v.
Southard, 10 Wheat. 1, delivered by Mr. Chief
Justice Marshall, was that the execution laws of Kentucky, having
passed subsequent to the process acts, did not apply to executions
issued by the circuit courts of the United States, and that under
the judiciary and process acts, the courts had power to regulate
proceedings on executions. The power of the court to adopt such
rules was not embraced in the point certified for the decision of
the Court, and was not expressly adjudged, but it is the clear
result of the argument of the Court.
The act of the Legislature of Virginia in 1792 to regulate
proceedings on judgments is substantially and technically a
limitation on judgments, and is not, therefore, an act to regulate
process. It is a limitation law, and is a rule of property, and
under the 34th section of the Judiciary Act is a rule of decision
for the courts of the United States.
The act of the Legislature of Virginia of 1792, limits actions
and executions on judgments rendered in the state courts, and the
same rule must be applicable to judgments obtained in the courts of
the United States.
The Process Act of Congress of 1828 was passed shortly after the
decision of the Supreme Court of the United States in the case of
Wayman v. Southard, and
United States Bank v.
Halstead, and was intended as a legislative sanction of the
opinions of the court in those cases. The power given to the courts
of the United States by this act to make rules as a regulation of
proceedings on final process, so as to conform the same to those of
state laws on the same subject extends to future legislation and as
well to the modes of proceeding on executions as on the forms of
writs.
Acts of limitation are of daily cognizance in the courts of the
United States, and in fixing the rights of parties, they must be
regarded as well in the federal as in the state courts. The rule is
well settled that to avoid a statute, a party must show himself to
be within its exceptions.
A declaration in the Circuit Court of the United States for the
Virginia District stated the plaintiffs to be "merchants, and
partners trading under the firm and by the name and style of Duval
& Co., of Philadelphia, in Pennsylvania." This was insufficient
to give jurisdiction to the court in the action if the exception
had been taken by plea or by writ of error within the limitation of
such writ.
Construction of the act of limitations of Virginia of 1829. It
is a sound principle that where a statute of limitations prescribes
the time within which suit shall be brought or an act dare, and a
part of the time has elapsed, effect may be given to the act, and
the time yet to run being a reasonable part of the whole time, will
be considered the limitation in the mind of the legislature in such
cases. This rule is believed to be founded on principle and
authority.
On 7 December, 1821, James S. Duval, Lewis Duval, and John
Rheinhart obtained a judgment against William Ross. A writ of
fieri facias was issued on the judgment on 10 January,
1822, which was never returned. No other execution was issued on
the judgment until 11 August, 1836. A
capias ad
satisfaciendum was then sued out and executed on the body of
Ross, who gave up property in discharge of his body, and
entered
Page 38 U. S. 46
into a bond with Henry King as surety for the forthcoming of the
property on the day and at the place of sale. This bond was
forfeited, and a motion was made upon it for an award of execution
-- the award of execution was opposed on the ground of the lapse of
time between the rendition of the judgment and the award of
execution, in August 1836, and it was insisted that the execution
had issued illegally and that the same, as well as the forthcoming
bond taken under it, ought to be quashed.
The circuit court overruled the motion to quash the execution
and the bond, and gave judgment for the plaintiff for the amount of
the bond.
The defendants prosecuted this writ of error.
Page 38 U. S. 57
MR. JUSTICE McLEAN delivered the opinion of the Court.
On 7 December, 1821, James S. Duval, Lewis Duval, and John
Reinhart, obtained a judgment in the circuit court against
Page 38 U. S. 58
William Ross. A writ of
fieri facias issued on the
judgment 10 January, 1822, which was delivered to the attorney for
the plaintiffs and never returned. No other execution was issued
until 11 August, 1836. A
capias ad satisfaciendum was then
sued out and executed on the body of Ross, who gave up property in
discharge of his body, and entered into bond with Henry King as
surety for the delivery of the property on the day and at the place
of sale.
This bond being forfeited, a motion was made upon it, under the
practice established in Virginia, for an award of execution. The
motion was opposed, and the lapse of time between the rendition of
the judgment and the execution of August, 1836, was relied on to
show that the execution had been illegally issued, and consequently
that the forthcoming bond was unauthorized and void. But the court
entered up a judgment on the bond. To revise this judgment this
writ of error is prosecuted.
In the investigation of the questions which arise in this case
it becomes necessary to refer to certain acts of Congress, and also
to certain statutes of Virginia.
By "an act to regulate processes in the courts of the United
States," passed in 1789, it is provided
"That until further provision shall be made, and except where by
this act or other statutes of the United States is otherwise
provided, the forms of writs and executions, except their style and
modes of process in the circuit and district courts in suits at
common law shall be the same in each state respectively as are now
used or allowed in the supreme courts of the same."
And by the Act of May, 1792, it is declared
"That the forms of writs, executions, and other processes,
except their style, and the forms and modes of proceeding in suits,
in those of common law, shall be the same as are now used in the
said courts respectively in pursuance of the act above
recited."
These acts adopt the execution laws of the states as they stood
in 1789. An act was passed in 1793 and also one in 1800 on the same
subject, but as none of their provisions bears upon the present
case, it is unnecessary to examine them.
In 1792, the State of Virginia passed a statute providing
that
"Judgments in any court of record within the 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, or where execution hath
issued and no return is made thereon, the party in whose favor the
same was issued shall and may obtain other executions or move
against any sheriff or other officer, &c., for the term of ten
years from the date of such judgment, and not after."
There is a saving in this statute in behalf of infants, &c.,
and persons beyond the commonwealth, giving five years after the
removal of the disability to proceed on the judgment.
In the argument of this case in the circuit court, as appears
from
Page 38 U. S. 59
the bill of exceptions, it was stated by the judges and admitted
by the counsel on both sides that so far back as the recollection
of the said judges and counsel extends, it has been the usage in
the county and corporation courts, and in the superior courts of
law, and in the general court of Virginia, where execution has
issued upon a judgment and no return made thereon, to allow other
executions to be issued. But this recollection of the practice of
the judges and counsel did not extend farther back than the above
recited statute of 1792.
The circuit court, however, held that under the statutes and
practice of Virginia prior to the act of 1792, where an execution
had been issued within the year on a judgment, though not returned,
the plaintiff was entitled to issue other executions without
restriction as to time. And this is the ground taken by the counsel
for the defendant in error.
A reference is made to the early statutes of Virginia which
regulated executions, and also to the rule of the common law. And
it is contended that the Virginia act of 1792, having passed
subsequent to the taking effect of the process acts above cited,
cannot affect the proceedings on the judgment of 1821. That the
acts of 1789 and of 1792, which adopted the execution laws of the
respective states as they stood in 1789, regulate the proceedings
on the above judgment, unaffected by any subsequent legislation,
either state or federal. And the decision of this Court in the case
of
Wayman v.
Southard, 10 Wheat. 1, is referred to as fully
sustaining this position.
The great question in that case was whether
"the laws of Kentucky respecting executions, passed subsequent
to the process act, were applicable to executions which issued on
judgments rendered by the federal courts."
In the very elaborate opinion which was delivered by the late
Chief Justice, a construction was given to the process acts, and to
the various sections of the act to establish judicial courts, of
1789. And in order fully to comprehend the effect of this decision,
the points adjudicated will be stated.
The Court decided that the thirty-fourth section of the judicial
act, which provides
"that the laws of the several states shall be regarded as rules
of decision in trials at common law, in courts of the United
States, in cases where they apply, . . . has no application to the
practice of the court, or to the conduct of its officer, in the
service of an execution."
It held that "so far as the process acts adopt the state laws,
as regulating the modes of proceeding in suits at common law,
including executions," &c., the adoption is confined to those
laws in force in September, 1789. That the system, as it then
stood, was adopted, subject, however, to such alterations and
additions as the said courts respectively shall in their discretion
deem expedient, or to such regulations as the Supreme Court of the
United States shall think proper, from time to time by rule to
prescribe to any circuit or district court concerning the same.
Page 38 U. S. 60
The Court also held "that the fourteenth section of the
Judiciary Act gave to the courts of the United States,
respectively, a power to issue executions on their judgments."
Other sections in the same act are referred to and construed, but
they have no direct relation to the case under consideration.
The result of this opinion was that the execution laws of
Kentucky, having passed subsequent to the process acts, did not
apply to executions issued by the circuit court of the United
States, and that under the judiciary and process acts, the courts
had power to adopt rules to regulate proceedings on executions. The
power of the court to adopt such rules was not embraced in the
point certified for the decision of the Court, and was not
expressly adjudged, but it is the clear result of the argument of
the Court.
Having stated the points decided in this opinion, it is only
necessary to apply such of them as are applicable to the case under
consideration.
There is no evidence in the record that the Circuit Court of
Virginia ever adopted any rule which by a fair construction could
regulate executions. In this view, then, the case must stand upon
the execution law of Virginia in 1789, adopted by the process acts.
And under the decision in the above case of
Wayman v.
Southard it is clear that no subsequent changes in the process
law of the State of Virginia can be obligatory on the circuit
court.
And here the question arises whether the Virginia act of 1792,
having been passed subsequent to 1789, can have any effect in the
present case.
So far as this act can be held to regulate executions, it is
clearly inapplicable under the process acts of 1789 and 1792 to the
circuit court. But the act is substantially and technically a
limitation on judgments. It is not, therefore, an act to regulate
process. Executions are named in the act, and are authorized to be
issued under certain circumstances, within a limited time, but this
is only another mode of limiting the judgment, and is strictly and
technically as much a limitation on the judgment as is imposed in
the first part of the same section in reference to a
scire
facias or action of debt. The act provides that after the
lapse of ten years from the rendition of a judgment, where no
execution has been issued, neither an action of debt nor a
scire facias shall be brought on it. And that where an
execution has been issued and not returned, other executions and
proceedings may be had within the ten years, but not
afterwards.
If this, then, be a limitation law, it is a rule of property,
and under the 34th section of the Judiciary Act is a rule of
decision for the courts of the United States.
As an act of limitation, it is impossible to distinguish this
from other acts which limit the time of bringing certain actions,
either by a designation of the ground or the form of the
action.
These acts are of daily cognizance in the courts of the United
States, and no one has ever doubted that in fixing the rights
of
Page 38 U. S. 61
parties, they must be regarded as well in the federal as in the
state courts.
The original judgment in the case under consideration was
entered in 1821, and although an execution was issued within the
year, which was never returned, yet no other proceedings were had
on the judgment until the execution of 1836. Here was a lapse of
fifteen years, and if the statute apply, the plaintiffs were barred
unless they can bring themselves within the exception. And why does
not this statute apply to the federal courts. It limits actions and
executions on judgments rendered in the state courts, and the same
rule must be applicable to judgments obtained in the courts of the
United States.
In this view of the case, it is not necessary to look into the
Virginia execution law of 1789 to ascertain whether, if an
execution was issued on a judgment within the year and not
returned, the plaintiff might issue other executions without
limitation. It is enough to know that the act of 1792 imposes a
limitation to actions and executions on judgments, which like all
other limitation laws of the states, must be enforced by the
federal courts.
After the lapse of ten years, under this statute, a judgment
becomes inoperative. An action of debt will not lie upon it, nor
can it be revived by a
scire facias. Much less can an
execution be issued on it. Its vitality is gone, beyond the reach
of legal renovation.
In giving effect to this statute, no principle is impugned,
which is laid down in the case of
Wayman v. Southard. The
state law, which the court in that case held not to apply in the
federal courts, was a law that regulated proceedings on executions.
It was a process act, and not an act of limitations.
Do the plaintiffs in this case bring themselves within the
saving of the statute. The rule is well settled that to avoid the
statute, a party must show himself to be within its exception.
No proof is offered to show that the plaintiffs in the circuit
court were without the Commonwealth of Virginia. The statement in
the declaration is relied on to establish this fact. This statement
does not aver that the plaintiffs were citizens of Pennsylvania,
but represents them as "merchants and partners, trading under the
firm and by the name and style of Duval & Co., of Philadelphia,
in Pennsylvania."
This was insufficient to give jurisdiction to the court in the
original action if the exception had been taken by plea, or by writ
of error within the limitation of such writ.
In 1821, the plaintiffs represent themselves to be of
Philadelphia, in Pennsylvania; but does it follow that since that
period they have not been within the Commonwealth of Virginia? Does
the legal inference arise that they were not within the state when
the judgment was entered? We think not. Indeed, there is no
allegation of citizenship by the plaintiffs in the declaration. For
aught that appears on the face of the record, the plaintiffs might
have
Page 38 U. S. 62
been citizens of Virginia, and residents at the time of the
rendition of the judgment.
The act of limitations of 1826 has been referred to in the
argument, and it is proper to give a construction to it.
The first section of that act bars all actions founded upon
bonds executed by executors, administrators, guardians, &c.,
and other persons in a fiduciary character, which shall not be
commenced within ten years after the cause of action shall have
accrued.
The third section repeals the saving of the act of 1792, and the
fourth section provides that
"In computing the time within which rights of entry and of
action then existing shall be barred by the provisions of the act
of 1826, the computation shall commence from the date of the
passage of that act, and not before."
Now the question arises what actions are barred by this art? The
answer is all actions founded on bonds, given in a fiduciary
character, as described in the first section. The statute does not
embrace any action founded on a judgment or on any other ground
except on a bond of the character above stated.
The saving clause of the act of 1792 as to nonresidents is
repealed, the only effect of which is to bring within the
limitation of the statute of 1792 those who were within its saving
clause and against whom the statute had not begun to run. Against
such persons the statute could not begin to operate until the
repeal of the exception by the act of 1826.
If the plaintiffs in the circuit court had brought an action of
debt, or issued a
scire facias on the original judgment,
or issued an execution (an execution having been issued within the
year of the rendition of the judgment, but not returned) within ten
years from the passage of the act of 1826, they would not have been
barred; if they could have shown that up to the passage of the act,
they were within the saving of the act of 1792. But failing to do
this, as they have failed in the present case, the action on the
judgment and the execution would have been barred at the expiration
of ten years from its rendition under the act of 1792. In the
repeal of the saving clause of this act by the act of 1826,
executions are not named as within the saving, but only "the right
or title to any action or entry accrued," and a doubt has been
suggested whether a person within the saving clause of the act of
1792 might not claim the right still to issue executions on a
judgment on which no action of debt or
scire facias could
be sustained. We think that it was the intention of the legislature
to repeal the saving clause of the act of 1792, as to nonresidents,
in all its parts, although the language of the repealing clause
does not include the term "execution." It cannot be supposed that
the legislature would bar an action on a judgment and still
authorize an execution to be issued on it.
There is another view of this case which, though not much
considered in the argument, is deemed important by the Court.
And this arises under the process act of 1828. The third
section
Page 38 U. S. 63
of this act provides
"That writs of execution and other final process issued on
judgments and decrees, rendered in any of the courts of the United
States, and the proceedings thereupon shall be the same, except
their style, in each state, respectively, as are now used in the
courts of such state, . . . provided however that it shall be in
the power of the courts, if they see fit in their discretion, by
rules of court, so far to alter the final process in said courts as
to conform the same to any change which may be adopted by the
Legislature of the respective states for the state courts."
This act adopts in specific terms the execution laws of the
state, and if the limitation law of 1792 could be considered, so
far as its provisions embrace executions, a process act, this act
of 1828 adopts it, and the plaintiffs in the original judgment were
bound to conform to its provisions.
To this it is objected that the courts of Virginia have
uniformly construed the act of 1792 as not affecting judgments
entered before its passage, and that as the law of 1828 adopts this
statute, by the same rule of construction it cannot operate on
judgments rendered prior to that time. The answer to this argument
is, in the first place, if the act of 1792 or any part of it is to
be considered as a process act merely, and not an act of
limitations, the act of 1828 makes it the law of Congress for the
State of Virginia and gives immediate effect to it. If it be viewed
as an act of limitations merely, and not for the regulation of
process, it then takes effect, as before remarked, as a rule of
property, and is a rule of decision in the courts of the United
States under the 34th section of the Judiciary Act. In either case,
effect is given to the act of 1792 and it is decisive of the
present controversy.
But if it be considered, as contended, an act of limitations
adopted by the act of 1828, the answer is that the Court is to give
a construction to the act of 1828. If this act be clear in its
provisions, we are bound to give effect to it although it may to
some extent vary the construction of the act of 1792. And this is
no violation of the rule that this Court will regard the settled
construction of a state statute as a rule of decision. For in this
case the construction of the state law in regard to the effect it
shall have is controlled by the paramount law of Congress.
The words are "that writs of execution and other final process
issued on judgments and decrees rendered," not on judgments and
decrees hereafter rendered. The law provides for executions, not
judgments. And it operates on all executions issued subsequent to
its passage, without reference to the time when the judgment was
rendered.
The judgment in the circuit court was entered in 1821, so that
seven years of the ten years' limitation of the act of 1792 had run
when it was adopted by the act of 1828. Now the question is shall
no effect be given to this act of Congress in Virginia on judgments
before its passage, because of the construction by the Virginia
courts of the act of 1792?
Page 38 U. S. 64
It must be recollected that this act of 1828 is a national law,
and was intended to operate in the national courts in every state.
As it regards some of the states, it may at first have operated
less beneficially in them than in others. But its provisions took
immediate effect in all the states.
It is a sound principle that where a statute of limitations
prescribes the time within which suit shall be brought or an act
done, and a part of the time has elapsed, effect may be given to
the act, and the time yet to run, being a reasonable part of the
whole time, will be considered the limitation in the mind of the
legislature in such cases.
There may be some seemingly contradictory decisions on this
point in some of the states which have been influenced by local
considerations and the peculiar language or policy of certain acts
of limitations. But the rule is believed to be founded on principle
and authority.
The act of 1828 was passed shortly after the decision of the
cases of
Wayman v. Southard and
United States Bank v.
Halsted, and was intended as a legislative sanction to the
opinions of the Court in those cases.
This act is more explicit than the previous acts on the same
subject as to the power of the courts of the United States to adopt
rules to regulate final process. And it is well remarked by MR.
JUSTICE STORY in giving the opinion of the Court in the case of
Beers v.
Haughton, 9 Pet. 363, that under this law,
"the circuit court had authority to make such a rule, as a
regulation of the proceedings upon final process, so as to conform
the same to those of the state laws on the same subject."
And this power to adopt rules so as to conform to the state laws
extends to the future legislation of the states, and as well to the
modes of proceeding on executions as to the forms of the writs.
From the above considerations, the Court is of opinion, whether
the proceedings in the circuit court, in issuing the execution and
giving a judgment on the forthcoming bond, be considered as
regulated by the process acts of 1789 and 1792 or by the process
act of 1828, there is error in the judgment, and that it must
be
Reversed.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Virginia, and was argued by counsel. On consideration
whereof, it is ordered and adjudged by this Court, that the
judgment of the said circuit court in this cause be, and the same
is hereby reversed with costs, and that this cause be and the same
is hereby remanded to the said circuit court for further
proceedings to be had therein in conformity to law and justice and
the opinion of this Court.