ten years; and not to allow it after ten years, | diciary Act, were examined in the cases of either with or without motion. This is the Wayman v. Southard, 10 Wheat. 1, And The manifest effect of the first part of the clause: Bank of The United States v. Halstead, Ibid. "Judgments in any court of record within this 51. commonwealth, where execution hath not is- The court then said that the form of the writ sued, may be revived by scire facias, or an ac- of execution, and the rule for the conduct of tion of debt brought thereon, within ten years the officer while obeying its mandate, were regnext after the date of such judgment, and notulated by the Process Act, but that the power after." to issue executions was given by the 14th section of the Judiciary Act. See pages 23 and 24. The court, then, has power to issue executions "agreeable to the principles and usages of law."

If the clause had stopped here, the case where execution hath issued and no return is made thereon, would have remained as at common law. The party could get no new execution after the year without a scire facias; but he could, by means of scire facias, get a new execution after more than ten years. The object of the Legislature seems in this case also to have been to adopt an uniform rule where execution had issued, and no return was made thereon, to allow other executions to issue, without a scire facias, for the term of ten years; but not to allow any new execution, even with a scire facias, after ten years. The language of the clause is: "Where execution | hath issued and no return is made thereon, the party in whose favor the same was issued, shall and may obtain other executions for the term of ten years from the date of such judgment, and not after."

The exposition given of the law and practice before the statute of 1792, is sustained in the case of Fleming's Executor v. Dunlop, 4 Leigh, 338, by Judge Brooke, the oldest judge of the court, and the one most familiar with the state of things before 1792. See his opinion, p. 342. It is also sustained by the opinion of the President, pp. 343, 344, 345.

Judge Carr, one of the judges, thinks the Legislature must have considered the law to be different. He does not himself say the law was different. And the counsel on the other side will attempt to sustain the judgment of the court below upon these remarks of Judge Carr-remarks made in a case in which the court has decided that the statute of 1792 has so far curtailed the common law, that where no return is made, the party cannot obtain a second execution after ten years, even with a scire facias. Here are the remarks of one judge opposed to the opinion of two-and remarks of that judge showing that his opinion of what the law actually was before 1792, coincided with the opinions of his brethren; and that he merely supposed the Legislature to have been under a mistaken impression 53] as to the law. But if this impression of Judge Carr could be regarded as correct, which it cannot be, it does not prove that the second execution in this case was sanctioned by the mode of process used or allowed in Virginia in 1789. For the opinion of the Legislature as to what the law was, does not prove that the law was really 80. Still less does it prove that the mode of process used was not according to law.

There can be no difficulty, then, in concluding that the mode of process used and allowed in Virginia in 1789, did not authorize the issue of the execution in this case; and the appellee, therefore, can derive no aid from the Process Act, if that act were applicable to the case.

But does it apply? The provisions of the Process Act, and of the 14th section of the Ju

These laws control the process in respect to everything that calls for consideration before it emanates. They control the time at which it may issue. If at the time the execution is applied for, it cannot issue "agreeable to the principles and usages of law," then it must not be issued.

But what law is that whose principles and usages are to give the rule?

In the case of Robinson v. Campbell, 3 Wheat. 222, the court was called upon to interpret the meaning of the Act of Congress which speaks of the principles, rules, and usages which belong to courts of equity, as contradistinguished from courts of common law; and the court then thought that to effectuate the purposes of the Legislature, the remedies in the courts of the United States were to be at common law or on equity; not according to the practice of State courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of those principles.

So here, in determining what the Legislature mean when they say that executions are to be issued agreeable to the principles and usages of law, the court may feel bound to say that they are to be issued agreeable to the principles and usages of the common law. If so, there is an end of the matter; for it has already been shown that, agreeably to the principles and usages of the common law, the execution issued illegally in this case.

It may be said that “agreeable to the principles and usages of law" means agreeably to the principles and usages of the law of *that [*54 State in which judgment is rendered; but that the court is confined to the law of Virginia in 1789, when the Judiciary Act passed. If so, the case is equally plain; for it has already been shown that according to the law of Virginia of 1789, the execution issued illegally. But Congress, after it has in the 14th section given writs agreeable to the principles and usages of law, goes on to declare in the 34th section of the same statute, that "the laws of the several States, except when the Constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply; and this 34th section is unquestionably prospective as well as retrospective. It regards future as well as existing laws." In this respect the Virginia Act of 1792 would govern the case; and the terms of that act are too plain to admit of question. 1 R. C. of 1819, p. 489, sec. 5.

There is no proof that the plaintiffs were not within the commonwealth at the time of the

judgment being awarded. The allegation that | 1792, limiting to ten years the right to sue out they were merchants of Philadelphia at the subsequent executions, where one had issued time of bringing the original action, or at the and not been returned, has no application to time of filing the declaration, if evidence of executions issued from the federal courts in anything, is certainly not evidence that they that State; and even though it had such appliwere out of the commonwealth when the judg-cation, the defendants in error are within the ment was rendered. The plaintiffs who seek saving provided for persons not within the benefit from the proviso, must prove such a commonwealth at the time of such judgment case as is necessary to bring themselves within being awarded; nor has the benefit of that it. Independently of which, by the Virginia saving been taken away by any subsequent Act of March, 1826, the saving is repealed, statute. after ten years from the date of that act. Sup. to R. Code, pp. 260, 261.

3. That according to the modes of proceed. ing used and allowed in Virginia in 1789, if But neither the Act of 1792, nor the subse- an execution had issued within the year, though quent act, can be looked to except under the not returned, there was no limitation as to influence of the 34th section; and that section, time upon the right of the party in whose favor we are told, only furnishes a rule to guide the it had issued, to obtain other executions; and court in the formation of its judgment. Grant there is no rule of the Circuit Court of the it. Do we not want a rule to guide the court United States for the Eastern District of Virin forming its judgment on the forthcoming ginia, or of the Supreme Court prescribing a difbond; in deciding whether that bond was taken ferent practice. That, consequently, the second under an execution which issued legally? And execution in this case was lawfully issued; and is it not one thing to resort to the State laws the motion to quash the said execution and the to ascertain whether the execution may law-forthcoming bond taken under it, was properly fully issue, and another to resort to the Pro- overruled. cess Act to ascertain what should be the proceedings under the execution?! To one we look for a rule which is decisive of the rights of parties; to the other we look for a rule as to remedies merely. If an action be brought upon a bond, note, or account, and it would be barred by the law of the State in which the suit is brought, it will be equally barred in a federal court. Why should not the like rule prevail in regard to judgments? Why should it not be the rule that if a judgment of the same date, upon which like proceedings had been had, would be barred in the State court, the judgment of the federal court shall be barred also? That which is evidence, under the State laws, of a particular fact, has been decided by this court to be evidence of the same fact in a suit in a federal court. If under the State laws, the circumstances of an execution having issued and no return made thereon is evidence of satisfaction or release, why should 55*] it not be evidence of the same thing in a federal court? The case of M'Neil v. Holbrook, 12 Peters, 84, in which the Chief Justice delivered the opinion at the last term, may be cited in support of this view.

He argued that the case of Wayman v. Southard, in Wheaton's Reports, had decided the case. There the main question was, whether the statutes of Kentucky concerning execu tions which required that the plaintiff should indorse on the execution, that the notes of par ticular banks of the State should be received in payment, and on his refusal to allow the defendant to execute a replevy bond, which would stay the execution for two years, applied to executions in the courts of the United States. This court decided that proceedings on execution, according to the forms of the State courts, were good in the federal courts, under the process acts of September 29, 1780, and modified by the Act of May 8, 1792. The first of these acts (1 Story's Laws U. S. 67) provides that the forms of writs and executions in the courts of the United States, and the modes of proceeding in suits at [*56 common law, should be the same in each of the States, respectively, as then prevailed in the Supreme Court of the same. The second act, that of 1792 (1 Story's Laws of the United States, 258), subjected the process authorized by the Act of 1789 to such modifications as the circuit courts of the United States might make, or the Supreme Court of the United States might prescribe.

In the view which has been presented, full effect has been given to the decision in Wayman v. Southard, as to the mode of proceedings under execution. But it is proper to mention The Supreme Court of the United States, conthat, since Wayman v. Southard, an act of Considering these two acts as regulating the progress has passed, by which not only writs of execution, but the proceedings thereupon, are to be the same as are used in the courts of the State. Act approved May 19, 1828. Sess. Acts, 1827, 1828, p. 57, § 3.

Mr. Nicholas, for the defendants in error, contended:

1. That according to the decisions of this court, the proceedings on executions in the courts of the United States, in suits at common law, are to be the same in each State respect ively, as were used in the Supreme Court of the same in September, 1789; subject to such alterations as the said courts of the United States may make, or as the Supreme Court shall prescribe to the other courts.

2. That the statute of Virginia, passed in

cess in the courts of the United States, that court held that no statutes of the State of Kentucky, passed after the enactment of these laws were applicable to executions issued out of the courts of the United States.

It was contended by counsel in that case, that the whole application of the process laws of the United States was to the forms of execution and other process, and that these acts did not regulate the proceedings under them, and that the expression, "modes of proceeding," in the Act of 1792, applied to proceedings in the circuit courts, in contradistinction to "mesne” and "final" process. It was also contended that the 34th section of the Judiciary Act of 1789, making State laws rules of decision when they apply, furnished the rule of decision in

that case. These positions were negatived by As to the third point. What proceedings the Chief Justice in the opinion of the court were in practice, and use, and were allowed in delivered by him. The court also decided that Virginia, in 1789? The opinions of the judges the laws of the States were, by the Act of of the Circuit Court, and of the counsel attend1789, to be guides for the judgment of the ing the court, show that from 1792 no prac court in forming its opinion; but not for tice different from that claimed by the counsel carrying into effect that judgment. Proceed for the defendants existed after 1792. Cited ings after the judgment were merely ministeri- on this point, Fleming v. Dunlap, 4 Leigh's Real. “Trials at common law," included litiga- | ports, 338; the opinion of Judge Carr, 2 Tucktion during the pendency of the controversy, er's Black. Com. 333, and a note of cases on and did not extend to process upon judgments. The case of M'Cluny v. Silliman, 3 Peters, 270, shows that the State statutes of limitation furnish rules of decision in trials at common law, but does not conflict with the principles settled in Wayman v. Southard. The case of M'Neil v. Holbrook has reference to a rule of evidence on the trial of a cause-cited, also, The Bank of the United States v. Halstead, 11 Wheat. 51. Boyle v. Zacharie and Turner, 6 Peters, 648. These cases establish the first point in the case of the defendant in error.

In 1792, the State of Virginia passed a statute providing that "judgments in any court They held that "so far as the process acts of record within the commonwealth, where adopt the State laws, as regulating the modes execution hath not issued, may be revived by of proceeding in suits at common law, includscire facias, or an action of debt brought ing executions, etc., the adoption is confined thereon, within ten years next after the date of to those laws in force in September, 1789. That such judgment, and not after; or where execu- the system, as it then stood, was adopted; subtion hath issued, and no return is made there-ject, however, to such alterations and adon, the party in whose favor the same was ditions as the said courts respectively shall, in issued, shall and may obtain other executions, their discretion, deem expedient; or to such or move against any sheriff or other officer, regulations as the Supreme Court of the Unitetc., for the term of ten years from the date of ed States shall think proper, from time to such judgment, and not after." time, by rule, to prescribe to any circuit or district court concerning the same.

judgment, as is imposed in the first part of the | same section in reference to a scire facias or action of debt. The act provides, that after the lapse of ten years from the rendition of a judgment, where no execution has been issued, neither an action of debt nor a scire facias shall be brought on it. And that where an execution has been issued and not returned, other executions and proceedings may be had within the ten years; but not afterwards.

If this, then, be a limitation law, it 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.

As an act of limitation, it is impossible to distinguish this from other acts which limit the time of bringing certain actions, either by a designation of the ground or the form of the action.

These acts are of daily cognizance in the courts of the United States; and no one has ever doubted, that in fixing the rights of par61] ties, they must be regarded as well in the federal as in the State courts.

The original judgment in the case under consideration was entered in 1821; and although an execution was issued within the year, which was never returned, yet no other proceedings were had on the judgment until the execution of 1836. Here was a lapse of fifteen years; and if the statute apply, the plaintiffs were barred, unless they can bring themselves within the exception. And why does not this statute apply to the federal courts? It 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.

In this view of the case, it is not necessary to look into the Virginia execution law of 1789 to ascertain whether, if an execution was issued on a judgment, within the year, and not returned, the plaintiff might issue other executions, without limitation. It is enough to know that the Act of 1792 imposes a limitation to actions and executions on judgments, which, like all other limitation laws of the States, must be enforced by the federal courts.

After the lapse of ten years, under this statute, a judgment becomes inoperative. An action of debt will not lie upon it, nor can it be revived by a scire facias. Much less can an execution be issued on it. Its vitality is gone beyond the reach of legal renovation.

In giving effect to this statute, no principle is impugned, which is laid down in the case of Wayman v. Southard. The State law, which the court in that case held not to apply in the federal courts, was a law that regulated proceedings on executions. It was a process act, and not an act of limitations.

Do the plaintiffs in this case bring themselves within the saving of the statute? The rule is well settled, that to avoid the statute, a party must show himself to be within its exception.

No proof is offered to show that the plaintiffs in the Circuit Court were without the Commonwealth of Virginia. The statement in the declaration is relied on to establish this fact. This statement does not aver that the plaintiffs were citizens of Pennsylvania, but represents them as "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 original action if the exception had been taken by plea or by writ of error within the limitation of such writ.

In 1821, the plaintiffs represent themselves to be of Philadelphia, in Pennsylvania; but does it follow that since that period they have not been within the Commonwealth of Virginia? Does the legal inference arise that they were not within the State when the judgment was entered? We think not. Indeed, there is no allegation of citizenship by the plaintiffs in the declaration. For aught that appears on the face of the record, the plaintiffs might have *been citizens of Virginia, and residents [*62 at the time of the rendition of the judgment.

The Act of Limitations of 1826 has been referred to in the argument, and it is proper to give a construction to it.

The first section of that act bars all actions founded upon bonds executed by executors, administrators, guardians, etc., and other persons in a fiduciary character; which shall not be commenced within ten years after the cause of action shall have accrued.

The third section repeals the saving of the Act of 1792; and the fourth section provides, that "in computing the time within which rights of entry and of action then existing shall be barred by the provisions of the Act of 1826, the computation shall commence from the date of the passage of that act, and not before."

Now, the question arises, what actions are barred by this act? The answer is, all actions founded on bonds, given in a fiduciary character, as described in the first section. The statute does not embrace any action founded on a judgment, or on any other ground, except on a bond of the character above stated.

The saving clause of the Act of 1792, as to non-residents, is repealed; the only effect of which is, to bring within the limitation of the statute of 1792 those who were within its saving clause, and against whom the statute had not begun to run. Against such persons the statute could not begin to operate until the repeal of the exception by the Act of 1826.

If the plaintiffs in the Circuit Court had brought an action of debt, or issued a scire facias on the original judgment, or issued an execution (an execution having been issued within the year of the rendition of the judg. ment, but not returned) within ten years from the passage of the Act of 1826, they would not have been barred; if they could have shown that up to the passage of that act they were within the saving of the Act of 1792. But failing to do this, as they have failed in the present case, the action on the judgment and the execution would have been barred, at the expiration of ten years from its rendition, under the Act of 1792. In the repeal of the saving clause of this act, by the Act of 1826, executions are not named as within the saving, but only "the right or title to any action or entry accrued;" and a doubt has been suggested whether a person within the saving clause of the Act of 1792 might not claim the right still to issue executions on a judgment on which no action of debt or scire facias could be sustained. We think that it was the intention of the Legislature to repeal the saving clause of the Act of 1792,