18 F. Cas. 604 | U.S. Circuit Court for the District of District of Columbia | 1825
The fifth section of the Act of Virginia, of the 27th of December, 1792, p. 291, repealing so much of the ordinance of the convention passed in May, 1776, as declared the English statutes to be in force until altered by the legislative power of the colony, saves to every person the right and benefit of every writ remedial and judicial which might have been legally sued out before the passing of that act, and with the like proceeding thereupon to be had, as fully as if the act had not been made. By this clause the right to the writ of scire facias to revive judgments is saved. The Act of the 19th of December, 1792, p. 108, § 5, was passed while the English statutes were in force; and must be considered as an act of limitations. It limits the action of debt as well as the scire facias. The question then is whether it must be pleaded; or may it be moved in arrest of judgment ? The use of a special plea is to state what does not already appear upon the record. It would only state the date of the judgment and the time of the issuing of the scire facias, both of which already appear upon the face of the scire facias. If the statute of limitations had been pleaded the plaintiff might have replied an execution taken out within the year, which, although not returned, would, as I understand the act, take the case out of it as to the remedy by scire facias, although the plaintiff could not have a new execution or move against the sheriff; or the plaintiff might perhaps reply infancy, or imprisonment, or non compos mentis, or out of the district, or some other matter to avoid the bar. Perhaps these matters might be shown upon a motion to quash the scire facias ; but I do not think they could be made to appear j u-dicially to the Court upon a motion in arrest of judgment; and therefore I think the statute of limitations is not a good ground for such a motion. I believe the defendant’s remedy is by motion to quash the scire facias; or by plea; but I think the Court should not now let in the plea, without affidavit of merits.”
At the subsequent term, (November term, 1825,)
Mr. Taylor, stated that he was satisfied that he could not support a motion to quash the scire facias, but moved for leave to plead specially the statute of 19th December, 1792, § 5; and, as a ground for the motion, alleged that he had not supposed it necessary to plead it, as he was not aware that the statute of West. 2, giving a scire facias, was in force in Virginia, and offered to make affidavit of that fact, and' that the defendant had instructed him to rely on the statute of limitations.
Mr. Mason, contra.
An execution was issued immediately after the judgment, and was returned, and the defendant was discharged under the insolvent act. The Act of the 19th of December, 1792, applies only
In 1816, a motion was made to issue an execution under the saving clause of the statute of 19th December, 1792, ■§> 6. An execution was issued upon that motion and was returned. The plaintiff then died, and the executor was obliged to bring his scire facias.
The motion was continued under cur. ad. vult., and Mr. Mason and Mr. Taylor were to examine the case further and furnish the Court with notes of authorities, &c. But the question does not seem to have been moved again.
