false, if in point of fact it turns out to be false." As it appeared in the case that means had been taken, fraudulently, to conceal the defects in the ship's bottom, the case may not be an authority in favor of the opinion above quoted; yet it serves to show that the doctrine on this subject was not then settled. About the time that this last case was decided, the case of Pickering v. Dowson, reported in 4 Taunt. 779, was decided in the Common Pleas. That also was the sale of a ship, with all faults. A copy of the particulars was delivered by the seller to the buyer, which, amongst other things, represented the ship as being copper fastened, and as having recently undergone a thorough repair. It was proven that the ship was not copper fastened, and that the defendant knew she was leaky. The court adhered to the doctrine of Lord Ellenborough, in Baglehole v. Walters, and held that the seller was not responsible. Now, it will be observed that all these cases were cases of ships, where the thing which was the subject matter of the contract was in such situation that the buyer had a full opportunity to inspect and examine the truth of the representation; and this we take to be the ground of decision in them. The meaning, says Heath, Justice, in Pickering v. Dowson, of selling with all faults, is "that the purchaser shall make use of his eyes and un42*] derstanding *to discover what faults there are." This implies, in our opinion, that the thing must be in such situation as to enable him to make use of his eyes and understand ing; and accordingly, in that case, "the full opportunity of the purchaser to inspect and examine the truth of the representation," is included in the marginal note of the case, as one of the terms of the proposition which ex. empts the seller from liability. the idea that where the subject of the sale is open to the inspection and examination of the buyer, it is his own folly and negligence not to examine. Chancellor Kent, in the second volume of his Commentaries, 484, 485, has justly said, that the law does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference to the ordinary and accessible means of information. We think that this imputation cannot be made with any propriety against the appellee. The subject of the purchase was several hundred miles from him; he had never seen it; the seller knew that he had never seen it; in this situation he made a representation, both by description in his letter, and by the exhibition of specimens; the appellee bought upon the faith of that representation, the appellant knowing that the appellee had read the letter and seen the samples; finally, the appellee had a double confidence in the appellant; first, in his integrity, and second, in his skill in mining; and the appellant admits his belief that the appellee had this double confidence in him. If, under these circumstances, the seller were not bound by his representation, we know not in what cases we ought to apply the *well [*43 known and excellent maxim, "fides servanda est." We have now compared the cases, and upon principle, have shown that they do not apply to this. But we will conclude our opinion, by referring to a case, later than all those which we have been examining, the reasoning of which is conclusive, as we think, in favor of the view which we have taken. It is the case of Shepherd v. Kain, 5 Barn. & Ald. 240. It was a case for the breach of warranty, as to the character of a ship. The advertisement for the sale of the ship described her as a copNow, we think that this case is strikingly | per fastened vessel; but there were subjoined contradistinguished from that in the most im- these words: "The vessel, with her stores, as portant particular; that in this the purchaser she now lies, to be taken with all faults, withhad not full opportunity to inspect and examine out allowance for any defects whatever." It It is true that it would have been in the pur- appeared at the trial, that the ship when sold, chaser's power to have traveled some hundreds was only partially copper fastened, and that of miles to Virginia, to examine the mine; so it she was not what was called in the trade a was in the case which has been quoted from copper fastened vessel. It appeared also that the Johnson's Chancery Reports; but the Chancellor plaintiff, before he bought her, had a full opdoes not even intimate an idea that it was neces-portunity to examine her situation. sary for him to do so; so also in the case of Sherwood v. Salmon, 5 Day's Reports. 439, the purchaser might by extraordinary diligence have examined the land; but the court, in reference to this very subject, say, that where, from the remote situation of the land, or any other cause, a contract is made for the sale of land, without viewing it, there is the same reason that the seller should be responsible for å false affirmation respecting its quality, as for any other fraud. We think we may safely lay down this principle, that wherever a sale is made of property not present, but at a remote distance, which the seller knows the purchaser has never seen, but which he buys upon the representation of the seller, relying on its truth, then the representation, in effect, amounts to a warranty; at least that the seller is bound to make good the representation. No part of the reasoning of the cases which we have been reviewing applies to such a case; they proceed upon The court said, the meaning of the advertisement must be that the seller will not be responsible for any faults which a copper fastened ship may have. Suppose a silver service sold with all faults, and it turns out to be plated; can there be any doubt that the vendor would be liable? With all faults, must mean, which it may have consistently with its being the thing described. Here, the ship was not a copper fastened ship at all; and therefore the verdict was right. This case decides, that even where the plaintiff had a full opportunity of examination, the term "all faults" did not exempt the seller from liability for any defect but what was consistent with its being the thing described; and, in effect, that the description amounted to a warranty. In the case before us, where the appellee had no opportunity for examination (and in that respect the case is much stronger in his favor than the one just cited), the terms of the sale in our opinion, put upon the appellee no hazard or risk, but those V. which were consistent with the mine being | *WILLIAM ROSS and Henry King, [*45 Plaintiffs in Error, such as it was described; that those terms in no degree exempted him from liability for misrepresentation; but if the mine had been such as JAMES S. DUVAL et al., Defendants in Error. described, then that they would have exempted him from any liability for failure in its anticipated produce. It may be that the appellant made the representation under the influence of delusion; but it is sufficient, to decide this case, for us to know that the representation was untrue in material parts of it. The decree of the Circuit Court is affirmed with costs. Mr. Justice Story dissenting: In this case I have the misfortune to differ from a majority of my brethren. The bill seeks to set aside and rescind an executed contract, upon the ground of gross premeditated fraud, the contract being confessedly one of great hazard and founded in speculation. The answer fully and pointedly denies every allegation of fraud, and insists upon the most perfect good faith. The decree, by rescinding the contract, affirms the material charges of fraud stated in 44*] the bill. After a careful consideration of the evidence in the record, my opinion is, that there is no just foundation for, or proof of, these charges. I do not propose to review the evidence, though I take a very different view of it from what has been expressed in the opinion delivered by my brother Barbour; and there are many facts and circumstances which have struck my mind with great force, which, I regret to find, are not deemed of equal importance by my brethren. I am not willing, by my silence, to sanction imputations upon the appellant, which cast so deep a shade upon his character, which the record shows has hitherto been without stain or reproach. In my opinion, the appellant stands acquitted of fraud, the victim, if you please, of a heated and deluded imagination, indulging in golden dreams; but in this respect he is in the same predicament with the appellee, and none other. Mr. Justice M'Lean dissented, stating that he agreed altogether with Mr. Justice Story. Mr. Justice Baldwin dissented, both as to the facts, and the law as stated in the opinion of the court delivered by Mr. Justice Barbour. On appeal from the Circuit Court of the United States for the Southern District of New York. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of New York, and was argued by counsel; on consideration whereof, it is adjudged and decreed by this court that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed with costs. Limitation of execution-jurisdiction of federal courts to make rules-Virginia statute of limitations. 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; 6 Cond. R. 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 The power of regulate proceedings on executions. 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 substan tially and technically a limitation on judgments: It and is not, therefore, an act to regulate process. 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 The United States Bank v. Halstead; and The power given was intended as a legislative sanction of the opinto the courts of the United States by this act, to make rules as a regulation of proceedings on final 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. lons of the court in those cases. process, so as to conform the same to those of The rule is well settled, that to avoid a statute, a party must show himself to be within its excep tions. This was in 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." sufficient 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 done, 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 This rule is believed to be founded on orincases. ciple and authority. IN N error to the Circuit Court of the United States for the Eastern District of Virginia. Note.-The counsel for the appellant after- On the 7th of December, 1821, James S. wards presented a petition, praying for a re- Duval, Lewis Duval, and John Rheinhart obhearing of this case, but the court unanimous-tained a judgment against William Ross. A ly overruled the application. writ of fieri facias was issued on the judgment, 51 no judgment was of force longer than seven years. See reference to them in note to 1 Rev. Code of 1819, p. 489. *Mr. Robinson, for the plaintiffs in er. [*47 ror, argued : on the 10th of January, 1822, which was never returned. No other execution was issued on the judgment until the 11th of 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 en- The proposition maintained in the Court of 46] tered into a bond with Henry King as the United States for the District of Virginia surety for the forthcoming of the property, on was this: that upon a judgment in that court, the day and at the place of sale. This bond if execution has once issued, though it might was forfeited, and a motion was made upon it never be returned, a second execution might for an award of execution-the award of ex-issue afterwards, indefinitely as to time. In ecution 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. The case was argued by Mr. Robinson for the plaintiffs in error, and by Mr. Nicholas for the defendants. For the plaintiffs in error, the following points were submitted to the court: 1. That it having been laid down in Wayman v. Southard, 10 Wheat. 24, that the 14th section of the Judiciary Act must be understood as giving to the courts of the Union the power to issue executions on their judgments, and that section declaring that the writs issued shall be agreeable to the principles and usages of law, the court in determining within what time executions may be issued "agreeable to the principles and usages of law," should adopt the rule of decision prescribed by the 34th section, to wit: the laws of the State in cases where they apply. In this view the Virginia Act of 1792 would give the rule; and there being no proof that the persons entitled to the judgment were not within the Commonwealth at the time of the judgment being awarded, the second execution, and the forthcoming bond taken under it, should be quashed. Even if there were such proof, it would be of no avail, since the Virginia Act of 1826. Sup. to Rev. Code of 1819, p. 260, sec. 3. 2. That if in determining within what time writs of execution may be issued "agreeable to the principles and usages of law," the court should resort for a rule of decision to the common law of England; still the second execution must be held to have issued illegally, and the court should quash that and the bond also: because at common law, though execution had issued within the year, yet unless it were returned and filed, a second execution could not issue after the year. 3. That if the process act be considered as giving the rule, and the inquiry be what was the mode of process used and allowed in Virginia, in this respect, in 1789, still the result must be the same; because the mode of process must either have been according to the common law, or according to the statutes of Virginia. The common law rule has already been stated; and the statutes remaining in force in 1789 will be of no help to the judgnent creditors. According to these statutes, other words, that there was no limitation of time within which the issuing of the second execution was confined. This proposition has been advanced in Virginia for the first time in this cause, and the period at which it is urged is remarkable. It would not have been very surprising to have heard it a few years ago, when the English courts, and some of the American, seemed to set at defiance all the statutes of limitation which the wisdom of the Legislature had prescribed. But it is remarkable that it should be urged now, when the courts everywhere, both in England and America, are construing all statutes of limitation according to their plain meaning, and giving to them full effect. When the Parliament of England and the State Legislatures, to make the limitation more certain, are requiring a written acknowledgment of debt to remove a case from the operation of the statute; when the courts of equity, in cases where no statute applies, are enforcing, with almost the regularity and certainty of a statute, the rules adopted by them for repressing antiquated and stale demands; and when the best legal writers of the day are supporting the policy of the statutes, with commendable earnestness and ability. In a late work, which has added not a little to the reputation of a member of this bench, it is said that "laws thus limiting suits are founded in the noblest policy; they are statutes of repose, to quiet titles, to suppress frauds, and to supply the deficiency of proofs from the ambiguity and obscurity of transactions. They presume that claims are extinguished, because they are not litigated within the prescribed period. They take away all solid grounds of complaint, because they rest on the negligence or laches of the party himself. They quicken diligence, by making it in some measure equivalent to right. They discourage litigation, by burying in one common receptacle all the accumulations of past times, which are unexplained and have now become inexplicable." This passage is from page 482 of the Conflict of Laws. The author adds, that it has been said by Voet, with singular felicity, that controversies are limited, lest they should be immortal while men are mortal. Shall I be told that the policy in which statutes limiting actions are founded, does not apply to the limitations of executions after judgment? This surely is not so. So far from its being the case, we are told by the common law writers, that where execution is not sued out within a year after the judg ment, the court concludes that the judgment is satisfied and extinct; and acts upon this presumption by declining to issue a new execution. 3 Black. Com. 421. And where execution has issued within the year and never been returned, the presumption | wards continued by the Process Act of 1792; of satisfaction is equally strong. 48] *For if it had been put into the hands of an officer, we may reasonably conclude that the creditor would have proceeded against the officer. If he has not proceeded against the officer, the presumption is that the execution had not been delivered to an officer. And his failure to deliver it to an officer, is best accounted for by supposing that the claim had been adjusted between the parties. The common law rule conformed to this reasoning; for it will be presently shown that it placed the creditor who took out execution and never returned it, upon the same footing with him who had taken out none. The presumptions, then, which lie at the bottom of the statutes limiting actions, are equally applicable to limitations of execution. And if the present decision should be sustained, it will be in opposition to those presumptions, and opposed to the general spirit which now prevails both in legislative bodies and judicial tribunals. This circumstance should induce the court to look well into the particular case, and see whether the decision is rendered neces sary by the acts of Congress. It is admitted that every nation must have a right to settle for itself the times within which judicial proceedings may be carried on in its own courts; and if, indeed, Congress has enacted, that upon a judgment in a Circuit Court of the United States, where execution has once issued, a new execution may issue at any time afterwards; though we may think such an enactment unwise; it must nevertheless be conformed to. Has Congress so enacted? We certainly can find no such enactment in terms. If there be any such, it is not a direct provision of Congress, but an indirect one. Has Congress so enacted, directly or indirectly? In the act establishing the judicial courts of the United States. immediately after specifying the courts which are established, and their jurisdiction, comes the fourteenth section, which prescribes the means of carrying that junsdiction into effect. subject, however, to such alterations and additions as the courts respectively shall, in their discretion, deem expedient, or to such regulations as the Supreme Court of the United States shall think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same. 1 Story's Laws U. S. 257. The rule which must govern the case is to be deduced from one of these provisions. On the other side it is contended that the Process Act of 1789 prescribes the rule in such cases; and that according to that act, after judgment has been obtained in the Circuit Court of the United States for the Virginia District, the mode of process is the same that was used and allowed in Virginia in 1789. In other words, the proposition is that according to the mode of process used and allowed in Virginia in 1789, where execution had issued within the year, though it were not returned, new execution could issue after the year, indefinitely as to time. Without being at all satisfied that the rule on this subject is properly deduced from the process act, I proceed to show that according to the mode of process used and allowed in Virginia in 1789, where execution had issued within the year, and not returned, a new execution could not issue after the year; but the plaintiff was driven to his scire facias. That this was the mode of process used and allowed in such a case, will be shown both by the common law and by the statutes of Virginia. It is admitted that according to the common law, where execution was taken out within the year, and a return made showing that it had been ineffectual, a new execution might issue after the year; merely by entering continuances on the roll, so as to preserve the appearance of regularity. Aires v. Hardup, 1 Str. 100. And these continuances were regarded such mere matters of form, that, in many cases, they were allowed to be entered after the issuing of the second writ, if the first appeared to have been returned and filed. That, however, was indispensable. To sustain the second writ after the year, it was alIt declares that "all the before mentioned ways material to show that the first had been courts of the United States shall have power to returned and filed. The rule is so laid down issue writs of scire facias, habeas corpus, and by Mr. Tidd in his Practice; and he is sustained all other writs not specially provided for by by all the authorities. "When,” says he, “a statute, which may be necessary for the exer- fieri facias or ca. sa. is taken out within the cise of their respective jurisdictions and agree-year and not executed, a new writ of execution able to the principles and usages of law." This act was approved the 24th of September, 1789. 1 Story's Laws U. S. 59. may be sued out at any time afterwards, without a scire facias; providing the first writ be returned and filed, and continuances entered from the time of issuing it." Tidd, 1155. The act to regulate processes was approved a few days after, viz. on the 29th of September. In another place the rule is laid down even It declares that until further provision shall be more emphatically. After a year and a day made, and except where by this act or other from the time of signing judgment, the plainstatutes of the United States is otherwise pro- tiff cannot regularly take out execution without vided, the forms of writs and executions, ex-reviving the judgment by scire faciaa, unless an cept their style and modes of process, in suits execution was previously sued out, returned, at common law, shall be the same in each State and filed." Tidd, 1031, 1032; see, also, 2 Saund. respectively as are now used or allowed in the 72 c. Supreme Courts of the same. 1 Story's Laws U. S. 67. A leading authority in support of the rule as here laid down is the case of Blayer v. [*50 Baldwin, 2 Wils. 82; reported, also, in Barnes, 213. The forms of writs, executions, and other processes, and the forms and modes of proceeding in suits, in those of common law, In Blayer v. Baldwin execution was sued which were used in the courts in pursuance of out within the year, but was not returned. 49] the Process Act of 1789, were after-It was, however, continued upon the roll down, by vice comes non misit breve and a ca. sa. afterwards issued, under which the defendant was taken. The objection was made that the judgment was above a year old, and that there was no return of the execution to warrant the entry of the continuances on the roll. Held, that it was irregular to continue an execution on the roll which was never returned or filed. And on this ground the defendant was discharged out of custody. It is highly probable that it was the circumstance of the Virginia statutes operating against creditors residing in England more strongly than the common law did, that led to the subsequent action of the crown. In the same volume (III. p. 377) there is a statute of 1705, similar to that of 1696; and in the margin it is stated to have been repealed by proclamation, April 15th, 1830. I have not been able to find this proclamation. If only the Judge Washington decided the same way in statute of 1705 was repealed, and the others rethe case of Azcarati v. Fitzsimmons, 3 Wash. 134. main in force, they would of course have operaIt is plain, then, that in this case the executed to bar this judgment. If, however, all the tion issued illegally. The plaintiff was driven Virginia statutes on the subject were repealed to his scire facias in like manner as if no exe- by the crown, then the matter was left as it cution had issued within the year. And not stood at common law; and we have seen that, even the scire facias could have been obtained according to the common law, the execution from the clerk, as the execution was here. Af- could not legally have issued. ter so great a lapse of time as existed in this case, a motion in court would have been proper even for a scire facias. Lowe v. Robins, 1 Brod. & Bingh. 381; 5 Eng. Com. Law Rep. 127. If the execution could not legally have issued according to the common law, the next inquiry is, whether the common law rule was altered by any statute of Virginia remaining in force in 1789. It will be found that the only statutes on the subject, which existed prior to that time, limited the creditor even more than the common law. By the statute of March, 1657, 1658, no judgment, or any other engagement of debt, was of any force or recoverable five years after the date thereof; with this proviso only: that if the debtor absent himself and depart the country, then during such his departure, it shall not be reckoned nor accounted any part of the five years. 1 Hen. Stat. at Large, 483, 484. By the act of 1660-1861, the time was made seven years, with a similar proviso, that if the debtor should depart the country, the time of his absence should not be esteemed any part of the seven years. 2 Hen. Stat. at Large, 22. This was soon after the restoration of Charles II. In the succeeding year there was a revisal of the laws; and it was again enacted, that no judgment should be of force seven years after the grant thereof; with a proviso, that if the debtor depart the country and leave no attorney to answer for him, or in any other way conceal or privily remove himself into any part of the country, such time of his absence shall not be accounted any part of the seven years. 2 Hen. Stat. at Large, 104, 105. This law, in some of its parts, being supposed to admit of doubt, in 1696 it was repealed, and a new statute passed, declaring that no judgment shall be of force longer than seven years after the date of the judgment, or after the same has been renewed by scire facias; with a proviso, that if the debtor privately depart the 51] country or the county where he resided and dwelt, or contracted the debt, and have not a sufficient estate in the county where he resided or contracted the debt, or where the judgment was obtained to satisfy the same, it should remain and be in force and recoverable notwithstanding the seven years be expired and past. 3 Hen. Stat. at Large, 146. These different statutes are referred to in a note to the code of 1819, Vol. I. p. 489; in which the reviser notices that there is no exception in favor of absent creditors, or persons under disabilities. Having shown that the execution could not legally have issued according to the mode of process allowed by the laws of Virginia in 1789, the appellee can derive no aid from the process act, except by making out that the mode of process actually used in Virginia in 1789, was different from what the law allowed, and justified the issuing the execution in this case. No one recollects that such was the case; for the recollection of neither judge nor counsel extends further back than 1792. The sole foundation for such an idea arises out of the language of the Act of 1792. 1 R. C. of 1819, p. 489, sec. 5. Now, before commenting upon that act, let us sum up, in a few words, the state of things upon which that act was designed to operate. On the 3d of July, 1776, the convention of Virginia adopted as a rule of decision, not only the common law of England, but all statutes or acts of Parliament made in aid of the common law, prior to the 4th year of James I. which were of a general nature, not local to that kingdom. 1 R. C. of 1819, p. 135. course the statute of Westm. 2d. was adopted, which gave the writ of scire facias where the judgment was more than a year old. Of Hence, in Virginia, from 1776 to 1792, when execution had not issued within the year, the party was not driven to the action of debt after the year, but had a scire facias, in some cases, when the time was short, on application to the clerk; in others, where the time was longer, on motion. The Act of Limitations of 1792 passed on the 19th of December in that year. The clause in question was not reported by the revisers, but was introduced while the bill was in progress through the Legislature. *If, therefore, [*52 it did not show an exact acquaintance with the state of the law at the time, it would not be at all remarkable; but in truth the act is very easily explained. The rule under the statute of Westm. 2d was, that if the judgment be under seven years, the plaintiff might sue out a scire facias as a matter of course, without any rule or motion. After seven years, the writ was obtained by motion, the nature of which varied according as the time was more or less. The object of the Legislature seems to have been to adopt one uniform rule, where no execution had issued within the year; that is to say, to allow a scire facias, as a matter of course, without motion, not only seven, but |