Hagerstown Bank ex rel. Fiery v. Thomas , 35 Md. 511 ( 1872 )

Robinson, J.,

delivered the opinion of the Court.

In 1846 the Hagerstown Bank recovered two judgments against Jacob Hollingsworth, and within three years after the rendition of the same, executions were issued thereon to lie. Writs of execution were reissued to lie, from term to term of the Court, up to the time of the death of the said Hollingsworth, which occurred in 1868 ; and the question is, whether these judgments are barred by the Statute of Limitations, which provides, "that no judgment shall be good and pleadable or admitted in evidence after the principal debtor and creditor have been both dead twelve years, or the debt or thing in action, above twelve years standing?” Art. 57, see. 3, Code of Pub. Gen'l Laws.

At the common law, a judgment in a personal action, was presumed to be executed or satisfied after the lapse of a year and a day from its date, and unless the plaintiff sued out execution within that time he was obliged to bring a new action on the judgment. This however was remedied by the Statute of Westminister, 2, which provided for the renewa of such judgments after the lapse of a year by scire facias. But if execution was sued out within a year and not executed, a new writ could issue at any time afterwards without a scire facias, provided the first writ was returned, and continuances' entered on the rolls of the Court, connecting it with the effective writ. In such cases the suing out of the original execution and the return thereof, and the entry of continuances, operated as a continuing demand of the plaintiff’s claim and repelled the presumption of satisfaction arising from lapse of time. The return of the original execution however was necessary as a foundation for the entry of continuances, and the continuances were necessary in order to connect the first with the effective execution.

That a judgment may be kept alive in this State, so as to avoid the Statute of Limitations by conforming substantially to a practice of this kind, we consider settled by Mullikin vs. Duvall, 7 G. & J., 358. After quoting the language of the statute, the Court say:

“ It is true, that a judgment may be kept alive, and in full legal operation for an indefinite period of time, by issuing an execution upon it within a year and a day by the law of England, and within three years by the law of this State, and if .such writ is not effective, by renewing it from term to term.”

In this case, the execution instead of being delivered to the sheriff, and returned by him unexecuted in accordance with the directions of the plaintiff, was endorsed to lie and filed with the judicial writs of the term, to which it was issued, and then re-issued to lie from term to term. From the evidence of the clerk, such appears to have been the uniform practice of the Court in regard to the issuing of executions for the purpose of keeping a judgment in full legal operation, and so far as we are advised, it is in conformity with the practice in other circuits of the State.

In what-respect then, does it differ in principle from the English practice ? Under both, the issuing of the execution is the act altogether of the plaintiff, of which the defendant has only the constructive notice with which judicial proceedings effect both parties and strangers alike. Under neither is it issued to enforce payment of the judgment, but for the sole purpose of keeping it alive, by a continuing demand of the plaintiff’s claim. Under the English practice the return of the execution was necessary in order to make the continuances on the roll, connecting it with the effective writ. By the practice in this case however no return is necessary, because being issued to lie, and filed in Court, the writ never goes into the hands of the sheriff and inasmuch as the record shows that it has never been executed, the plaintiff may renew the same until the judgment is paid. There is no magic certainly in the mere delivery of the execution to the sheriff with instructions to return it immediately unexecuted, and if the English practice keeps the judgment in full legal operation by a continuing demand of the plaintiff’s claim, we see no good reason why the practice pursued in the case before us should not have the same effect. After all, the practice in both cases rests upon the legal fiction, that the plaintiff has issued his successive writs of execution, which from no fault on his part have proved unavailing — thus giving to the legal fiction, though contrary to the fact, the force and effect of actual facts, so long as it works no injustice to parties.

In regard to original and mesne process, the return of the writ was necessary, because until returned the Court was not in fact in possession of the case. Atwood vs. Burr, 7 Mod., 5; Karver vs. James, Willes’ Rep., 255; Harris vs. Woolford, 6 T. R., 617, and Brown vs. Babbington, 2 Lord Ray., 880. In order to avoid the Statute of Limitations of James II, a practice grew up of suing out an original writ and having it returned non est, and subsequently when the plaintiff wanted the defendant taken, a second writ was issued, and continuances entered on the roll, connecting it with the original writ. Under this practice, the Courts held that the suing out of the original writ, was the commencement of the suit, and thus avoided the statutory bar. In such cases however, the original writ was purchased out of the High Court of Chancery, anti was directed to the Court of Common Pleas, and until returned, the case was not in fact pending in the latter Court. Thus in Atwood vs. Burr, 7 Mod., 5, Holt, C. J., says:

(Decided 3d May, 1872.)

“ That upon pleading the Statute of Limitations, he always used to plead the return and not the purchase of the writ; for it was the return that gave the possession of the cause to the Court.” Until the return therefore, no entry could be made of continuances connecting the original with the effective writ.

Moreover in original process the writ was sued out for the purpose of impleading the defendant and “It would be greatly inconvenient,” says Willes, Ch. J., in Karver vs. James, Willes’ Rep., 258, “if a plaintiff might sue out a writ and keep it in his pocket for six years together, of which the defendant could not possibly have any notice, and then enter it in this manner and continue it down to avoid the Statute.’’

Final process however, is issued upon a judgment already recovered in Court, not for the purpose of enforcing payment of the same, nor to implead the defendant, but in order to keep it alive by a continuing demand of the debt, and there is no reason why the issuing of the writ to lie, and the renewal thereof from term to term should not be as effectual for all these purposes, as the delivery of it to the sheriff, and the return of the same, and the entry of continuances on the roll.

We are of opinion therefore that the practice pursued in this case conforms substantially to the practice recognized in Mullikin vs. Duvall, 7 G. & J., 355, and Hazlehurst vs. Morris, 28 Md., 67, and that the Court erred in sustaining the exceptions to the allowance of these judgments, on the ground that they were barred by the Statute of Limitations.

Order reversed and

cause remanded.