#### Kemp v. The Commonwealth.

Friday, October 31, 1806.

Statute of Limitations — Commonwealth.*—The act of limitations will not bar a motion, in behalf of the Commonwealth, against a person who has received public money and is accountable for it.

*

Nullum Tempus Occurrit Regi. — The English maxim, that *"nullum tempus oceurrit real,"*has been adopted in Virginia in relation to the commonwealth; on which principle it has been held, that the acts of limitations do not extend to the commonwealth. in civil suits, not founded on any penal act expressly limiting the commencement of the action, Nimmo v. Com., 4 Hen. *&*M. 57, 65, 71, 79, citing the principal case. And in Saunders v. Com., 10 Gratt. 496, it is said; “In cases arising under the statutes of limitations, it has been well settled by numerous decisions, that, in England, debts due to the crown, and in this country, debts due to the commonwealth. are not within the statutes unless expressly named. This exemption in favor of the crown and of the states is placed on the ground that the legislature shall not be taken to have postponed the public right to that of an individual except in cases where such purpose has been most plainly manifested. Mcliehan v. Commonwealth, 3 Barr’s R. 151; Commonwealth v. Johnson, 6 Barr’s R. 136; United States v. Davis, 3 McLean’s R. 483, 1 Watt’s R. 55; *Kemp v.*Commonwealth, 1 *Hen. & M.*85; Nimmo’s Executor v. Commonwealth, 4 Hen. & M. 57.” To the same effect, see the principal case cited in Levasser v. Washburn, 11 Gratt. 572. 577, and foot-note; Calwell v. Prindle, 19 W. Va. 652; Hoge v. Brookover, 28 W. Va. 310.

See further, monographic *note*on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.

By an act of Assembly, passed in 1786, intituled, “an act to amend the act for ascertaining- certain taxes and duties, and for establishing a permanent revenue,” the compensation to the commissioners of the revenue was changed. In consequence of a construction put on that act, several commissioners drew the 201. per annum which had been allowed prior thereto. An act which passed in 1790, referred it to the General Court to decide whether, subsequent to that of 1786, the commissioners were entitled to the 201. per annum; and directed, that, in case of a decision against them, legal proceedings should be instituted to compel those, who had received it, to refund. The General Court were of opinion that the commissioners had no right to the sum in question; and their decision was affirmed by the Court of Appeals. The .present case was that of a motion against Peter Kemp, commissioner of the County of Middlesex, to compel him to refund the sum which, under the aforesaid- erroneous construction, he had received. The only defence relied on at the trial, was the act of limitations, which was overruled by the Court, and a judgment entered in favour of the Commonwealth; to which judgment Kemp obtained a writ of supersedeas. *Wickbam, for the plaintiff in error. The point for which I contend is, that the Commonwealth is barred by the act of limitations, although not specially named. The case of Gaskins v. the Commonwealth, (a) proves, that an individual cannot obtain a supersedeas against a judgment on behalf of the Commonwealth after five years have elapsed since it was rendered. The Commonwealth may therefore plead that act against an individual, though no express provision exists in its favour. Whj* then should not the individual be permitted to plead it against the Commonwealth? Even the odious doctrine of nullum tempus occurrit regi, which prevails in England, does not authorise the King to plead the act of limitations against a subject, who is not permitted in the same case to plead it against the King. The maxim there is reciprocal, and ought to be so here, if it applies at all.

It may be said, this is a motion. But the case of the Auditor v. Graham, (b) shews that the act of limitations extends to a motion; and Lee v. Peachy,(c) does not differ from that in principle; the distinction being, that, in the latter case, there was a bond given by the sheriff, which prevented the act of limitations from barring the motion. Besides, the *varying*the form of action; for example, giving a summary remedy by motion, instead of debt or assumpsit, does not change the right of the parties to avail themselves of any plea before allowed. That it is not necessary to extend the act of limitations, by an express provision, to cases coming within its spirit and meaning, is evident from the circumstance, that no express law applies that act to suits in Chancery: yet there it may be pleaded. This is done every day, on the principle of analogy, which operates with equal force in the present case.

Attorney General, for the Commonwealth. The first position which I shall lay down is, that the act of limitations does not extend to motions in behalf of the Commonwealth. No maxim of the common law is more firmly established, than nullum tempus occurrit regi. (d) This principle is considered not merely personal as a matter of prerogative, but as applicable to all cases of debts due to the government, in which the King’s name is used for their recovery. No instance can be adduced in which the act of limitations has been allowed against a public demand; nor can any act of the Legislature of Virginia be found altering those principles of the common law. The revolution, it is true, produced an important change; and ‘many of the regal powers and prerogatives ceased as inconsistent with the nature of our government; but there certainly were some rights appertaining to the English government, which were transferred to the Commonwealth, either by the silent effect of the revolution, or by express provisions in the constitution. Thus the constitution prescribes that all escheats, forfeitures, &c. heretofore going to the King shall go to the Commonwealth. To prevent the operation of this principle, the Legislature found it necessary to pass a law declaring that no attainder or conviction of treason, felony, &c. should work a corruption uf blood or forfeiture of estate, (e) So also the Commonwealth releases her right to all lands after thirty years possession ; which is a legislative exposition of the principle that no limitation would bar the Commonwealth, (f)

If the foregoing positions be correct, ■ it may be asked, where is the law, which *51declares that the act of limitations shall run against the Commonwealth? It is but reasonable to require the counsel for the plaintiff in error to produce it, when a great and important principle is to be changed. In the act for the limitation of actions, (a) no expression can be found shewing that it was intended to bind the Commonwealth. The framers of that law, knowing the common law principle, would certainly have declared in express terms that it extended to the Commonwealth, if such was their intention. In the case of Bedinger v. the Commonwealth, (b) this Court refused to extend its jurisdiction, by implication, to appeals in criminal cases, in which the Commonwealth was a party.

In none of the cases which have been cited and relied upon, as favoring the plaintiff in error, has the question whether the Commonwealth was bound by the act of limitations ever been raised. Gaskins v. the Commonwealth, (c) turned upon the point, whether the Court of Appeals could grant a writ of supersedeas to a judgment of the General Court, after live years.1 In the case of Graham and the Auditor, (d) the question was, whether the act of limitations would bar the recovery of a line. The Court decided that it would. The language of the law, as to the limitation of penal actions, necessarily applies to the Commonwealth; because it speaks of indictments, informa-tions, &c. but no such expressions are inserted in the general act of limitations.

But if it should be thought to extend to the Commonwealth in general, it would not in this particular case. The limitation of actions did not exist at common law, *but is entirely statutory; consequently the act is to be strictly construed, and not to extend to any actions unless particularly named, (e) This act does not bar a right, but the remedy only; and if the party can pursue his remedy in any other form, the act shall not prevent him. Its provisions are never extended by analogy, (f)

Whenever a remedy arises from a statute, as in this case, the act will not run. (g) Courts of Dquity were not bound to adopt it, but did so merely on the principle of •expediency, and did not apply it to cases of trusts. And if this Court were author-ised to admit the operation of the act by analogy still it would not run in this case, because the money having been received by the plaintiff in error, under an erroneous construction of the law, he would be a trustee for the Commonwealth.

Wickham, in reply. The first and most important point on which the Attorney General depends, is, that the doctrine arising from that branch of the King’s prerogative expressed in the odious maxim of '‘nullum tempus occurrit regi,” now applies to the Commonwealth. But I shall contend the contrary, because the reason which gave birth to it, no longer exists. That maxim in Ejngland is founded on the pretence that the King’s mind is so completely occupied with the cares of state, that he has not time to attend to his own private affairs. It was therefore supposed to be unjust to subject him to the operation of the act of limitations. This branch of his prerogative, of course, grows out of the King’s natural or personal character, and cannot belong to the Commonwealth of Virginia, which has no private affairs, but has able and vigilant officers to demand and recover all its just claims. It is said -that this doctrine is, in RJng'land, extended to debts due to the King in his public capacity; but the cause of this is easily explained. Its origin in that county, was in ancient times: when it was first established all the revenues of the crown were considered as the individual property of the King: when the parliament granted a subsidy, he disposed of it as his own money; and all debts due to the government were regarded as belonging to him in his private capacity. The reason therefore which originally existed for exempting the King from the act of limitations, has ceased to have any application in modern times; yet through a servile adherence to authority the maxim has continued in force; but, if it were now introduced for the first time, it would not be countenanced by the Courts of Kngland, whose Judges, in reality, lean against s‘it as far as they are able. legislative expositions since this suit was brought cannot be admitted to explain how far the Commonwealth is bound by the act of limitations. But the case of lands, concerning which the Legislature has made a provision, is not similar to that now in question; because as the Commonwealth was the original proprietor of all the territory of the state, it was doubtful whether she could ever be considered as out of possession of lands for which no grant had issued. It therefore became necessary in that case to provide a limitation against her.

But it is said that the Commonwealth cannot be bound by any act unless specially named. On the principle for which I have already contended, if the act of 1792, on the subject of limitations had never passed, the act of 1748 would, when the revolution took place, have bound the Common wealth, though not specially named in it; because the revolution took away all the prerogatives of the King which grew out of his natural character, and the Commonwealth, in her public or political character could have no such privilege. The case of Bed-inger *v.*The Commonwealth, (h) applies only to criminal cases; but it is certain that, although the Commonwealth is not specially mentioned in the act concerning the Court of Appeals, yet this Court has jurisdiction in other cases in which she is concerned. This then is an example of the Commonwealth’s being bound, although not specially named, and proves that, though not mentioned in the case of limitations, she may be bound by it. And, upon principle, why should she riot; since no *52obstacle exists to prevent her claims from being prosecuted in due time?

With respect to the question whether the act applies to motions, I will observe that the act of limitations is a remedial act, and great latitude in construing it has ever been allowed. The exceptions expressly contained in it have been extended by analogy to other cases coming within the same reason; and so therefore may all its provisions. It was in force before the motion-law ; and when the forms of action were changed by substituting motions, the principle of analogy ought to extend to the latter the same restrictions which before existed, as to the time within which the former ought to have been instituted. In this particular case, the Legislature, by-directing legal proceedings to be had against Kemp, did not prejudge the question, but left it to be decided by the Courts, according *to law. The application of the act of limitations to suits in equity is not altogether discretionary with the Chancellor. In fact, it is a bar, even in cases where he may think it ought not to be; for he has no discretion1. In cases of trusts, indeed, the act does not apply; but the present is not a case of a trust; because the money now demanded by the Commonwealth was received by Kemp not as a trustee, but as his own; and as such he meant to keep it.

Curia advisare vult.

Monday, November 3. The Court (consisting of Judges Lyons, Carrington and Tucker) unanimously affirmed the judgment of the District Court.

(a)

1 Call, 194.

(b)

1 Call, 475.

(c)

3 Gall, 220.

(d)

 1 Bl. Co. 247.

(e)

 Rev. Code, vol. 1, c. 74, s. 31, p. 106.

(f)

 Rev. Code, vol. 1, c. 228, p. 378.

(a)

 Rev. Code, vol. 1, c. 76, p. 107.

(b)

3 Call, 461.

(c)

1 Call, 194.

(d)

1 Call, 475.

(e)

 4 Bac. Abr. Gwil. ed. 461, tit. “Limitation,’' &c. let. (A.) *2*Inst. 95.

(f)

**4 Bac. Ab. Gwil. ed. 463, 469, 471.

(g)

 Ibid. 471, 473.

(h)

CR) 3 Call, 461.