#### Day, Executor of Yates, v. Pickett.

Argued, Tuesday, March 9th, 1813.

i. Appeal — Supersedeas.*—If an appeal he taken, but not perfected by giving bond and security, a writ of supersedeas, to the same judgment may be obtained.

3. Appeal Bond — Sufficiency.—An appeal bond executed by a security only, without a principal is not sufficient in law.

See ReV. Code, 1st vol. p. 82, ch. 66, sect. 58.

3. Judgment — Revival—Statute of Limitations — Promise of Payment as Bar to.† — A plea of the act of limitations, in bar of a scire facias „to revive a judgment, cannot be repelled by a replication that the defendant within five years next before the suing out of the scire facias, promise to pay the amount of the judgment.

*4.*Pleading and Practice — Plea and Replication Both Insufficient — Effect.‡—If a replication be insufficient, and demurred to as such; yet, if the plea be also insufficient, the court will go up to the first fault, and give judgment for the plaintiff.

See Baird v. Mattox, 1 Call. 261-3; 3 Kirtley v. Deck, 3 H. & M. 388; and Callis v. Waddy, 2 Munf. 511.

*g.*Statute of Limitations — Retrospective Effect. — The 5th section of the act of limitations of 1792 does not apply to judgments which existed before that act took effect.

See Rev. Code, 1st vol. ch. 150, p. 293.

See Lyons v. Gregory, 3 H. & M. 237.

On the 3d day of November, 1801, Charles Yates sued “out of the Clerk’s Office” of Eauquier County Court, a scire facias to revive a judgment in his favour against William Pickett, ^bearing date the 25th of March, 1788. The scire facias being returned executed, the revival of the judgment was entered at Rules, but set aside at the Quarterly Court, in March, 1802, upon the defendants’ appearing and pleading nul tiel record. In November, 1803, the defendant, by leave of the Court, pleaded also payment, and a special plea, “that the judgment recited in the said scire facias was rendered more than ten years next prior to the day of the date of the said scire facias to which said pleas the plaintiff replied generally. In August, ' 1805, the plaintiff filed a special replication, “that he by reason of any thing by the said defendant above in pleading alledged, ought not to be barred or precluded from having and maintaining his scire facias aforesaid thereof against him ; because he says that, after the rendition of the judgment in the said scire facias mentioned, and within five years next before the suing forth of the said scire facias, to wit, on the 13th day of November, 1797, and at the county aforesaid, the said defendant undertook and promised to pay and satisfy to the said plaintiff the amount of the said judgment; and this he is ready to verify,” &c. To this replication the defendant filed a general demurrer, to which the plaintiff joined issue. In August, 1806, the plea of payment was withdrawn, and that of nul tiel record was, by inspection, determined in the plaintiff’s favour ; but the defendant’s demurrer to the special replication was adjudged good. It was therefore considered by the County Court, that the plaintiff take nothing by his writ of scire facias aforesaid, &c. Erom this judgment, the plaintiff, by his attorney prayed an appeal; but the appeal bond was signed by John W. Green, a security, without being signed by the appellant or any other person. Charles Yates having departed this life, a writ of supersedeas was obtained from a Judge of the general court by Benjamin Day, his executor, who, after-wards, upon an affirmance of the judgment, appealed to this court.

Williams for the appellant.

The plea of the act of limitations was' improperly admitted after office judgment; as was *decided in the case of Backhouse v. Jones’s Executor. (1) And if admissible at this stage of the proceedings, it was a bad plea ; for the act of limitations of 1792, *49(a) does not apply to judgments anterior to its date. The proviso in the 47th section, saving all rights which had accrued prior to the commencement of the act,(b) goes very far to shew that such was the intention of the legislature. The principle upon which the act of 1787, authorizing parol gifts of slaves, was determined to be prospective only,(c) applies with equal force to the act now in question.

Call, for the appellee. The scire facias was barred by length of time. Th.e saving in the 47th section of the act did not relate to a scire facias, but simply to existing rights. At common law, before that act was passed, the plaintiff could not, if ten years had elapsed, obtain a scire facias without leave of the Court, (d) His right therefore was not to site out a scire facias, as of course, but only to shew himself entitled to it, upon making a proper case to induce the court to grant it. In this case, it does not appear that the plaintiff ever moved the court for leave. The bar, by the statute is general; the saving is special: the plaintiff is therefore bound to shew that he came within the saving.

The writ of scire facias to revive a judgment was not given by the common law, but by the statute of 13 Édwd. 1, c. 45,(e) which was repealed by the act of Assembly repealing the British acts of Parliament generally, (f) No scire facias then could be maintained ; the act of limitations having been previously passed.

The replication that the defendant had assumed within five years did not alter the case. Such a promise was not sufficient to give the remedy by scire facias, but only to entitle the party to his action at common law. There is nothing in the record upon the scire facias to which the evidence of such a promise applies. This replication was a clear departure in pleading. The remedy sought for was a '^remedy by statute, and could not be supported by a common law remedy ; although the converse of this proposition is laid down as true, in Co. Litt. 304, a.

2. The plaintiff had no right to apply for a writ of supersedeas, while the appeal was pending ; the clerk had certified that the appeal bond was given ; and no set form of words for such certificate is necessary. Besides, there was only one appellant. Green gave the bond, and entered himself as security, and was received as good. There is no necessity for the appellant himself to sign the bond, since he is responsible at all events.

Where an appeal is not- duly prosecuted after it is granted, no writ of error or supersedeas shall be allowed, (g) And great would be the inconvenience of a contrary practice ; for if it were allowed, a party might appeal; and, after long delay, without sending up the record, his executor might obtain a supersedeas, and get rid of the intermediate damages.

Williams, in reply.

If the act of 1792, applied to pre-existing judgments at all, it could only be after ten years from its own date. Now in this case the scire facias was sued out within that time ; and therefore was not barred by the act. Even if the English rule of practice applied here, the plaintiff, in the year 1792, was entitled to his scire facias, without leave of the court; for the ten years from the date of the judgment had not then elapsed.

Call. The plaintiff’s right at that time, was to take out his scire facias at any time before 1798, when the ten years, counting from the date of the judgment, expired. That right was saved to him ; but that right never had been claimed or exercised by this plaintiff ; for he failed to sue out his scire facias until 1801.

Williams. The repealing act of 1792, cited by Mr. Call, has a section saving the right and benefit of all writs remedial and judicial, &c. That section prevented our losing the *scire facias given us by the statute of 13 Edw. 1. This court will presume that the writ was properly issued. If it was not issued by leave of the court, a motion should have been made to quash it, (as improperly issued,) instead of pleading the act of limitations in bar.

Admit the replication frivolous. The court will go back to the first error, and, the plea being no bar, will put their finger upon that, and give the plaintiff judgment.

As to the objection that an appeal and a supersedeas cannot subsist together; it should have been taken (if well-founded) by a plea to the court’s jurisdiction. But it is clear that the bond for prosecuting the appeal was not good. The act of assembly indeed dispenses with the appellant’s signature; but there must be the signatures of two obligors ; for “bond and security” is to be given, (h) The appeal therefore was not carried up ; the bond being altogether incomplete ; and, of course, the executor properly obtained a writ of supersedeas.

The provision in the 61st section, (Rev. Code, 1st vol. p. 83) applies only to dismissions of appeals. Where the appellant has not carried up the appeal, and the appellee has failed to have it dismissed, (1) there is no bar to a supersedeas.

Friday, December 17th, 1813,

*

Appeal — Supersedeas.—A supersedeas may be allowed to a judgment notwithstanding the existence of an ineffectual appeal from the same judgment. Pugh v. Jones, 6 Leigh 308, citing the principal case as its authority.

Appeal Bonds — Sufficiency.—See monographic *note*on "Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.

†

Judgment — Revival—Statute of Limitations — Promise of Payment as Bar to. — An execution on a judgment stayed by indulgence or agreement is no replication to the bar of the statute of limitations, for it neither suspends the capacity to maintain debt or scire facias on the judgment, nor falls within any of the savings of the proviso. Indeed a replication of an express promise to pay the debt is bad. Smith v. Charlton, 7 Gratt. 474, citing the principal case as its authority.

In Mercer v. Beale, 4 Leigh 205, it is said. “Since this act (Statute of Limitations), no judgment can be revived, or be the foundation of an action of debt, against the executor, after the expiration of five years, unless the persons entitled were non compos, etc.;. No promise of payment, no assumpsit or acknowledgment, could have the effect of removing the bar. Such assumpsits may serve as the foundation of a new action, or may take a debt out of other clauses of the statute, but not out of those which limit the right of reviving judgments by debt or scire facias. *Day v. Pickett,*4 *Munf.*104, before cited.”

Same — Same — Same — Personal Defense. — The defense of the statute of limitations is a personal privilege, and to be made availing must be pleaded by the. defendant. Thus, in a case in which no execution issued on a judgment within the year, and which prima facie is barred, the practice is for the clerk to issue the scire facias, and leave the defendant to plead the statute, and the plaintiff to reply the exceptions, so far as they may be applicable to his case. As an illustration of this principle, the principal case, Gee v. Hamilton, 6 Munf. 32, and Peyton v. Carr. 1 Rand. 436, are cited in Smith v. Hutchinson, 78 Va. 687.

‡

Statute of Limitations — Retrospective Effect, — To the point that the fifth section of the statute of limitations has no retroactive operation and does not embrace judgments previously obtained, the principal case is cited in Mercer v. Beale, 4 Leigh 203. To the same effect, see the principal case cited in Shepherd v. Larue, 6 Munf. 531. To the point that statutes of limitation are no exception to the rule that statutes are prima facie future in operation, the principal case is cited in State v. Mines, 38 W. Va. 134, 18 S. E. Rep. 473*.*

See further, *foot-note*to Elliott v. Lyell, 3 Call 268; *foot-note*to Price v. Harrison, 31 Gratt. 114; mono-graphic *note*on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.

(1)

 Note. Decided April 7th, 1805, — not reported.

(a)

 Revd. Code, 1st vol. p. 108, ch. 76, sect. 5.

(b)

 Ibid. p. 113.

(c)

 See Turner v. Turner’s Executrix, 1 Wash. 139.

(d)

 Tidd.'s pr. 1007.

(e)

 Tidd’s pr. 1001.

(f)

 Rev. Code, 1st vol. ch. 147, p. 391.

(g)

 Rev. Code, 1st vol. p. 83, ch. 66, sect. 61.

(h)

 Rev. Code 1st vol. p. 63, ch. 63, sect. 16, p. 83, ch. 66, sect. 58.

(1)

 Note. See Robertson v. Braddick, and Nelson v. Matthews, 1 H. & M. 20, 21. But these cases apply only to appeals perfected by bond and security. Where this has not been done, the appeal is altogether a nullity, and cannot be brought up to the Court of Appeals by either party: of course it cannot be dismissed.- — Note in Original Edition.

JUDGE ROANE

pronounced the court’s opinion.

“The court (not deciding, at this time, whether, after an appeal has been duly granted and perfected according to law, it is competent to the party obtaining the same to carry his case to the Appellate Court by way of supersedeas also, or is confined to his appeal,) is of opinion that the appeal granted from the judgment of the County Court in this case was not so perfected ; bond with surety not having been entered.' into *during the term in which the same was prayed. It was not, therefore, erroneous in the Superior Court to act upon the supersedeas obtained thereafter in the same case ; the rectitude of the judgment on which is now to be considered.

*50“As to the power of the legislature- to -act upon remedies ; in cases in which the legislative intention is clearly expressed, •and in which, also, such interference does not in effect destroy the right of the parties, the court is not disposed to question it. That power, on the contrary, has been asserted by this court, particularly in the case of Gaskins v. Commonwealth, (a) But the case before us is one depending merely upon construction, and in which no such legislative intention is clearly expressed, or evidently inferible. The application of the rule now in question to previously existing judgments, would deprive the party of his right altogether as to some judgments, and greatly abridge his extent of time as to others.”

“In cases in which a limitation has been intended to be affixed to previously existing judgments also, the legislature has expressly provided therefor ; as by the act of 1788 limiting writs of supersedeas to five years, and confining the previous cases to three years after the passing of the act. That act consequently afforded a protection to previous cases, which would be wanting in many cases if the rule before us were applied to antecedent judgments. In the case before us, therefore, depending merely on the construction of the act on general principles, those principles must turn the scale in favour of a merely prospective construction. All acts take effect on general principles, from the time of their passage ; and the act in question has a particular declaration to this effect. In a case of general expression, therefore, like the one before us, the act 'will be read as if every clause was prefaced with the declaration contained in the last section thereof; viz. “that, .from and after the passage of this act, all judgments,” &c. This construction was fully adopted by this court in the case of Hewitt and the Commonwealth,(b) and meets the entire approbation of the court in relation to the case before us.

*“The consequence of this opinion is that, although the replication demurred to is insufficient, in admitting the defendant’s plea to be a bar, and replying the defendant’s assumption to cure or release the same, that plea also is insufficient, in applying to this case a construction which cannot effect it; cannot abridge the plaintiff’s pre-existing right to sue out his scire facias: and, such being the defect of the plea; on the principle of going up to the first fault, that plea must be overruled, and judgment given for the appellant on his scire facias.”

“The judgments of both courts are therefore to be reversed, and judgment entered for the appellant.”

(a)

1 Call, 194.

(b)

2 H. & M. 186.