ROSS V. DUVAL, 38 U. S. 45 (1839)

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U.S. Supreme Court

Ross v. Duval, 38 U.S. 13 Pet. 45 45 (1839)

Ross v. Duval

38 U.S. (13 Pet.) 45


A judgment was obtained in the circuit court of the United States for the District of Virginia in December, 1821, and a writ of fieri facias was issued on this judgment in January, 1822, which was not returned, and no other execution was issued until August, 1836, when a capias ad satisfaciendum was issued against the defendant. Held that this execution issued illegally, in consequence of the lapse of time between the rendition of the judgment and the issuing of execution in 1836.

The result of the opinion of the Supreme Court in the case of Wayman v. Southard, 10 Wheat. 1, delivered by Mr. Chief Justice Marshall, was that the execution laws of Kentucky, having passed subsequent to the process acts, did not apply to executions issued by the circuit courts of the United States, and that under the judiciary and process acts, the courts had power to regulate proceedings on executions. The power of the court to adopt such rules was not embraced in the point certified for the decision of the Court, and was not expressly adjudged, but it is the clear result of the argument of the Court.

The act of the Legislature of Virginia in 1792 to regulate proceedings on judgments is substantially and technically a limitation on judgments, and is not, therefore, an act to regulate process. It is a limitation law, and is a rule of property, and under the 34th section of the Judiciary Act is a rule of decision for the courts of the United States.

The act of the Legislature of Virginia of 1792, limits actions and executions on judgments rendered in the state courts, and the same rule must be applicable to judgments obtained in the courts of the United States.

The Process Act of Congress of 1828 was passed shortly after the decision of the Supreme Court of the United States in the case of Wayman v. Southard, and United States Bank v. Halstead, and was intended as a legislative sanction of the opinions of the court in those cases. The power given to the courts of the United States by this act to make rules as a regulation of proceedings on final process, so as to conform the same to those of state laws on the same subject extends to future legislation and as well to the modes of proceeding on executions as on the forms of writs.

Acts of limitation are of daily cognizance in the courts of the United States, and in fixing the rights of parties, they must be regarded as well in the federal as in the state courts. The rule is well settled that to avoid a statute, a party must show himself to be within its exceptions.

A declaration in the Circuit Court of the United States for the Virginia District stated the plaintiffs to be "merchants, and partners trading under the firm and by the name and style of Duval & Co., of Philadelphia, in Pennsylvania." This was insufficient to give jurisdiction to the court in the action if the exception had been taken by plea or by writ of error within the limitation of such writ.

Construction of the act of limitations of Virginia of 1829. It is a sound principle that where a statute of limitations prescribes the time within which suit shall be brought or an act dare, and a part of the time has elapsed, effect may be given to the act, and the time yet to run being a reasonable part of the whole time, will be considered the limitation in the mind of the legislature in such cases. This rule is believed to be founded on principle and authority.

On 7 December, 1821, James S. Duval, Lewis Duval, and John Rheinhart obtained a judgment against William Ross. A writ of fieri facias was issued on the judgment on 10 January, 1822, which was never returned. No other execution was issued on the judgment until 11 August, 1836. A capias ad satisfaciendum was then sued out and executed on the body of Ross, who gave up property in discharge of his body, and entered

Page 38 U. S. 46

into a bond with Henry King as surety for the forthcoming of the property on the day and at the place of sale. This bond was forfeited, and a motion was made upon it for an award of execution -- the award of execution was opposed on the ground of the lapse of time between the rendition of the judgment and the award of execution, in August 1836, and it was insisted that the execution had issued illegally and that the same, as well as the forthcoming bond taken under it, ought to be quashed.

The circuit court overruled the motion to quash the execution and the bond, and gave judgment for the plaintiff for the amount of the bond.

The defendants prosecuted this writ of error.

Page 38 U. S. 57

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