William Ross and Henry King, Plaintiffs In Error v. James Duval and Others, Defendants In Error

• Decision Date: 01 January 1839
• Citation: 38 U.S. 45,13 Pet. 45,10 L.Ed. 51
• Parties: WILLIAM ROSS AND HENRY KING, PLAINTIFFS IN ERROR, v. JAMES S. DUVAL AND OTHERS, DEFENDANTS IN ERROR
• Court: U.S. Supreme Court

38 U.S. 45

13 Pet. 45

10 L.Ed. 51

WILLIAM ROSS AND HENRY KING, PLAINTIFFS IN ERROR, v. JAMES S. DUVAL AND OTHERS, DEFENDANTS IN ERROR.

January Term, 1839

IN error to the Circuit Court of the United States for the Eastern District of Virginia.

On the 7th of 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 the 10th of January, 1822, which was never returned. No other execution was issued on the judgment until the 11th of 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 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.

The case was argued by Mr. Robinson for the plaintiffs in error; and by Mr. Nicholas for the defendants.

For the plaintiffs in error, the following points were submitted to the Court:

1. That it having been laid down in Wayman vs. Southard, 10 Wheat. 24, that the 14th section of the judiciary act must be understood as giving to the Courts of the Union the power to issue executions on their judgments, and that section declaring that the writs issued shall be agreeable to the principles and usages of law, the Court in determining within what time executions may be issued 'agreeable to the principles and usages of law,' should adopt the rule of decision prescribed by the 34th section, to wit: the laws of the state in cases where they apply. In this view the Virginia act of 1792 would give the rule; and there being no proof that the persons entitled to the judgment were not within the commonwealth at the time of the judgment being awarded, the second execution, and the forthcoming bond taken under it, should be quashed. Even if there were such proof, it would be of no avail, since the Virginia act of 1826. Sup. to Rev. Code of 1819, p. 260, § 3.

2. That if in determining within what time writs of execution may be issued 'agreeable to the principles and usages of law,' the Court should resort for a rule of decision to the common law of England; still the second execution must be held to have issued illegally, and the Court should quash that and the bond also: because at common law, though execution had issued within the year, yet unless it were returned and filed, a second execution could not issue after the year.

3. That if the process act be considered as giving the rule, and the inquiry be what was the mode of process used and allowed in Virginia, in this respect, in 1789, still the result must be the same; because the mode of process must either have been according to the common law, or according to the statutes of Virginia. The common law rule has already been stated; and the statutes remaining in force in 1789 will be of no help to the judgment creditors. According to these statutes, no judgment was of force longer than seven years. See reference to them in note to 1 Rev. Code of 1819, p. 489.

Mr. Robinson, for the plaintiffs in error, argued——

The proposition maintained in the Court of the United States for the district of Virginia was this: that upon a judgment in that Court, if execution has once issued, though it might never be returned, a second execution might issue afterwards, indefinitely as to time. In other words, that there was no limitation of time within which the issuing of the second execution was confined.

This proposition has been advanced in Virginia for the first time in this cause, and the period at which it is urged is remarkable.

It would not have been very surprising to have heard it a few years ago, when the English Courts, and some of the American, seemed to set at defiance all the statutes of limitation which the wisdom of the legislature had prescribed. But it is remarkable that it should be urged now, when the Courts everywhere, both in England and America, are construing all statutes of limitation according to their plain meaning, and giving to them full effect. When the parliament of England and the state legislatures, to make the limitation more certain, are requiring a written acknowledgement of debt to remove a case from the operation of the statute; when the Courts of Equity, in cases where no statute applies, are enforcing, with almost the regularity and certainty of a statute, the rules adopted by them for repressing antiquated and stale demands; and when the best legal writers of the day are supporting the policy of the statutes, with commendable earnestness and ability.

In a late work, which has added not a little to the reputation of a member of this bench, it is said that 'Laws thus limiting suits are founded in the noblest policy; they are statutes of repose, to quiet titles, to suppress frauds, and to supply the deficiency of proofs from the ambiguity and obscurity of transactions. They presume that claims are extinguished, because they are not litigated within the prescribed period. They take away all solid grounds of complaint, because they rest on the neligence or laches of the party himself. They quicken diligence, by making it in some measure equivalent to right. They discourage litigation, by burying in one common receptacle all the accumulations of past times, which are unexplained and have now become inexplicable.' This passage is from page 482 of the Conflict of Laws. The author adds, that it has been said by Voet, with singular felicity, that controversies are limited, lest they should be immortal while men are mortal.

Shall I be told that the policy in which statutes limiting actions are founded, does not apply to the limitations of executions after judgment. This surely is not so.

So far from its being the case, we are told by the common law writers, that where execution is not sued out within a year after the judgment, the Court concludes that the judgment is satisfied and extinct; and acts upon this presumption by declining to issue a new execution. 3 Black. Com. 421.

And where execution has issued within the year and never been returned, the presumption of satisfaction is equally strong.

For if it had been put into the hands of an officer, we may reasonably conclude that the creditor would have proceeded against the officer. If he has not proceeded against the officer, the presumption is that the execution had not been delivered to an officer. And his failure to deliver it to an officer, is best accounted for by supposing that the claim had been adjusted between the parties. The common law rule conformed to this reasoning; for it will be presently shown that it placed the creditor who took out execution and never returned it, upon the same footing with him who had taken out none.

The presumptions, then, which lie at the bottom of the statutes limiting actions, are equally applicable to limitations of execution. And if the present decision should be sustained, it will be in opposition to those presumptions, and opposed to the general spirit which now prevails both in legislative bodies and judicial tribunals. This circumstance should induce the Court to look well into the particular case, and see whether the decision is rendered necessary by the Acts of Congress.

It is admitted that every nation must have a right to settle for itself the times within which judicial proceedings may be carried on in its own Courts; and if, indeed, Congress has enacted, that upon a judgment in a Circuit Court of the United States, where execution has once issued, a new execution may issue at any time afterwards; though we may think such an enactment unwise; it must nevertheless be conformed to.

Has Congress so enacted? We certainly can find no such enactment in terms. If there be any such, it is not a direct provision of Congress, but an indirect one.

Has Congress so enacted, directly or indirectly? In the act establishing the judicial Courts of the United States, immediately after specifying the Courts which are established, and their jurisdiction, comes the fourteenth section, which prescribes the means of carrying that jurisdiction into effect.

It declares that 'all the before mentioned Courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law.' This act was approved the 24th of September, 1789. 1 Story's Law U. S. 59.

The act to regulate processes was approved a few days after, viz. on the 29th of September. It declares 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 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. 1 Story's Laws U. S. 67.

The forms of writs, executions, and other processes, and the forms and modes of proceeding in suits, in those of common law, which were used in the Courts in pursuance of the process act of 1789 were afterwards continued by the process act of 1792; subject however to such alterations and additions as the Courts respectively shall, in their discretion, deem expedient, or to such regulations as the Supreme...