35 Md. 511 | Md. | 1872
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
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
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
“ 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.