12 Gratt. 579 | Va. | 1855
It is well settled that if one have judgment with a cesset executio for a given time, he may within a year and a day after the expiration of the agreed time, take out his execution without scire facias. 4 Com. Dig. 257, “ Execution,” I 4; Long v. Morton, 2 Marsh. R. 39; Underhill v. Devereux, 2 Wms. Saund. 72 c, n 4; Hiscocks v. Kemp, 3 Adol. & Ell. 676; United States v. Harford, 19 John. R. 172; Nicholson v. Howsley, 5 Litt. Sel. Cas. 300; Eppes v. Randolph, 2 Call 125, 186. So if the defendant bring error and thereby hinder the plaintiff from taking execution within the year, and the plaintiff in error be nonsuit or the judgment affirmed, the defendant in error may proceed to execution after the year without scire facias, because the writ of error is a supersedeas to the j udg
The reason assigned for this is that the cesset executio being with the consent and for the benefit of the defendant, and the writ of error being his own act, he should not take advantage of them, nor could he be surprised by the delay because that delay was in fact referable to himself. And this reason applies with equal force where the defendant arrests the execution of the judgment by an injunction. Hence, the same rule should apply in the latter case. It is true in some of the earlier English cases it was held that where execution was stayed for a year or more by injunction, the plaintiff could not take execution upon its dissolution, but was put to his scire facias. Booth v. Booth, 1 Salk. R. 322; Winter v. Lightbound, Strange’s R. 301. The reason given is that the court of chancery not being a court of record, its injunction is not a matter of which the court of law will take notice. But this doctrine has long since been exploded even in England, and courts of law will take notice of injunctions and other proceedings in chancery when properly brought to their consideration. And accordingly it is now held that where execution has been stayed by injunction, the plaintiff may sue out execution within one year after it shall have been dissolved, without scire facias. Michell v. Cue, 2 Burr. R. 660; Gibbes v. Mitchell, 2 Bay’s R. 120; Noland v. Cromwell, 6 Munf. 185; United States v. Harford, 19 John. R. 172; Smith's adm'r v. Charlton's adm'r, 7 Grratt. 425. Indeed the reason on which the earlier English doctrine rested never did exist in Virginia; for the courts of chancery of this state have always been courts of record, the same as the courts of law.
It is clear, therefore, that where the plaintiff is pre
That this is the correct doctrine I think very clear, independently of the provision of the Code, ch. 186, § 13, p. 710. This section, after declaring that no execution shall issue nor any scire facias or action be brought on a judgment after the time prescribed by the previous section, provides that in computing the time, any time during which the right to sue out execution on the judgment is suspended by the terms thereof, or by legal process, shall be omitted. Now, clearly an injunction is legal process within the meaning of this provision, and of course every case coming within its operation, the whole period during the pendency of the injunction is to be omitted in computing the time within which the scire facias must be issued to avoid the bar. Nor do I perceive any reason why
In this case the judgment was rendered on the 26th of March 1806, and the injunction was obtained on the same day; and the cause appears to have remained pending in the County court, and afterwards in the District court of chancery at Staunton, and again in the County court, to which it had been remanded, until the November term 1851, when an order was made declaring the injunction to stand dissolved unless
It is objected, however, that when this demurrer was overruled, an issue should have been made up upon the replication before the trial of the issues .on the pleas of payment. But it was the fault of the plaintiff in error himself that it was not done. He neither offered to withdraw his demurrer nor tendered any rejoinder to the replication, and the court could only pass on to the trial of the issues which he chose to make.
Another objection is, that the Circuit court improperly permitted the judgment to go in evidence to the jury, it appearing that it was a judgment against Hutsonpiller alone, whilst the scire facias set out a judgment against him and one Patser Huber jointly. From the record sent up to this court it would appear that the judgment was against Hutsonpiller alone ; but a doubt being suggested as to its correctness, the original record has been brought before us for examination, by consent of parties. From this it appears that the capias was returned “ executed ” as to Hutsonpiller, and “kept off by force of arms” as to Huber. At the next rules, a common order was entered, which was subsequently confirmed. At the March court following, Hutsonpiller appeared and pleaded payment, and at the March term 1806, this plea was waived and judgment by non sum informaius. By the law as it stood at that day (act of 28th January 1800) a party might proceed on the return “ kept off by force of arms” as if the process were executed; hence the common order and its confirmation may well be held
The remaining grounds of error assigned founded upon the instruction given to the jury, may be considered together.
The parties stood upon issues of payment in a court of law, and such a court possesses no discretionary power to refuse its aid to enforce a claim out of deference to any supposed public policy forbidding the assertion of stale demands. All that it could do was to instruct the jury as to the rules of law and evidence by which it was to be governed in considering the case. The court must of course in every case take
Row, in the case of a judgment upon which no proceedings have been had for twenty years or upwards, the legal presumption could only arise where the party was at liberty to enforce it if he would. Where, however, his hands are tied and he is expressly prohibited to take any measures for that purpose by an injunction obtained by the defendants themselves, and the ob
But whilst the court thus instructed the jury that this legal presumption would not arise, it said nothing from which they should have inferred that they were not at liberty to look into the whole circumstances of the case in connection with the length of time which had been suffered to elapse, and from them to infer and find the fact of payment. It left the time elapsed to have its proper and natural tendency to lead them, in connection with the death of the parties, the failure to take measures sooner to have the inj unction dissolved, the ability of the parties to pay, and all the other circumstances of the case, to that conclusion. It placed the case during the pendency of the injunction on the same footing as if there had been no injunction, but
I am of opinion to affirm the judgment.
I am of opinion that the Circuit court erred in instructing the jury “that the pendency of the injunction cause repelled the legal presumption of payment which would have arisen from lapse of time, if said injunction had not been pending.” Under all the circumstances of the case, I think the jury ought to have presumed that the debt had been paid, and ought to have found a verdict for the defendant. Forty-six years elapsed between the date of the judgment and the scire facias; during which period both parties to the judgment died. For thirty-eight years the injunction case was on the sleeping docket of the County court, and not an order was taken in it; not even an order of continuance. Thirty-one years elapsed after the obligee’s administrator qualified, and before he made a motion in the case. There was nothing to repel the presumption of satisfaction arising from this long lapse of time and this gross laches of the obligee and his representative but the bare pendency of the injunction case, if pendency it can be called. If that fact be sufficient to repel the presumption in this case, it would be so in any case; and no lapse of time, however long, no laches however gross, would be a sufficient foundation for the
But it is said that the court only instructed the jury that the legal presumption of payment arising from lapse of time was repelled by the pendency of the injunction; and that the jury were still at liberty to make an actual presumption of payment, from all the circumstances of the case, including lapse of time as one of them.
There can be no doubt, I think, but that the instruction of the court produced the verdict of the jury for the plaintiff. I think the instruction was wrong in
But at all events, it misled the jury, and was calculated to have that effect. They could not be expected to know the difference between legal presumptions and actual presumptions; and when told that the legal presumption of payment arising from lapse of time was repelled by the pendency of the injunction, they naturally inferred that unless there was some other evidence of payment, they must find a verdict for the plaintiff. If the court had been of opinion that while the legal presumption was repelled by the pendency of the injunction the jury might still presume payment from the mere lapse of time, notwithstanding the pendency of the injunction, it should so have told the jury; and would, I think, so have told them. It is obvious that the court was not of that opinion.
I incline also to think that the Circuit court erred in reversing the judgment of the County court, and that the act of limitations was a bar to the scire facias. At least forty years elapsed between the death of the defendant in the judgment and the date of the scire facias to revive it against his administrator, who qualified soon after his death. There was nothing to prevent the suing out of the scire facias before. The pendency of the injunction did not prevent it, as has been decided by this court. Richardson v. Prince George Justices, 11 Gratt. 190. It seems to follow as a
In regard to the other questions arising in the cause, I concur in the opinion of Judge Lee.
Allen, P. and Daniel and Samuels, Js. concurred in the opinion of Lee, J.
Judgment affirmed.