Hagerstown Bank ex rel. Fiery v. Thomas

Robinson, J., delivered the opinion of the Court. In 1846 the Hagerstown Bank recovered two judgments against Jacob Hollingsworth, and within three years after the rendition of the same, executions were issued thereon to lie. Writs of execution were reissued to lie, from term to term of the Court, up to the time of the death of the said Hollingsworth, which occurred in 1868 ; and the question is, whether these judgments are barred by the Statute of Limitations, which provides, "that no judgment shall be good and pleadable or admitted in evidence after the principal debtor and creditor have been both dead twelve years, or the debt or thing in action, above twelve years standing?” Art. 57, see. 3, Code of Pub. Gen'l Laws.

At the common law, a judgment in a personal action, was presumed to be executed or satisfied after the lapse of a year and a day from its date, and unless the plaintiff sued out execution within that time he was obliged to bring a new action on the judgment. This however was remedied by the Statute of Westminister, 2, which provided for the renewa ⁵¹⁶ of such judgments after the lapse of a year by scire facias. But if execution was sued out within a year and not executed, a new writ could issue at any time afterwards without a scire facias, provided the first writ was returned, and continuances' entered on the rolls of the Court, connecting it with the effective writ. In such cases the suing out of the original execution and the return thereof, and the entry of continuances, operated as a continuing demand of the plaintiff’s claim and repelled the presumption of satisfaction arising from lapse of time.

The return of the original execution however was necessary as a foundation for the entry of continuances, and the continuances were necessary in order to connect the first with the effective execution. That a judgment may be kept alive in this State, so as to avoid the Statute of Limitations by conforming substantially to a practice of this kind, we consider settled by Mullikin vs. Duvall, 7 G. & J., 358 . After quoting the language of the statute, the Court say: “ It is true, that a judgment may be kept alive, and in full legal operation for an indefinite period of time, by issuing an execution upon it within a year and a day by the law of England, and within three years by the law of this State, and if .such writ is not effective, by renewing it from term to term.” In this case, the execution instead of being delivered to the sheriff, and returned by him unexecuted in accordance with the directions of the plaintiff, was endorsed to lie and filed with the judicial writs of the term, to which it was issued, and then re-issued to lie from term to term. From the evidence of the clerk, such appears to have been the uniform practice of the Court in regard to the issuing of executions for the purpose of keeping a judgment in full legal operation, and so far as we are advised, it is in conformity with the practice in other circuits of the State.

In what-respect then, does it differ in principle from the English practice ? Under both, the issuing of the execution is the act altogether of the plaintiff, of which the defendant has ⁵¹⁷ only the constructive notice with which judicial proceedings effect both parties and strangers alike. Under neither is it issued to enforce payment of the judgment, but for the sole purpose of keeping it alive, by a continuing demand of the plaintiff’s claim. Under the English practice the return of the execution was necessary in order to make the continuances on the roll, connecting it with the effective writ.

By the