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McDonald vs. Bradshaw.

whether he would be willing to become security for Higginbotham for any length of time to which the charter might be extended by the Legislature, of which it was a creature, it may be that he would have assented to it; but it is by no means evident that he would; and we are not to speculate on what he might have been willing to do; we can look only to what he did."

So in South Carolina Society vs. John Johnson, Jr. 1 McCord, 41, the Court held, that where an officer is elected annually and gives a bond for the faithful discharge of his duties, his securities are bound only for one year, although there is no time specified in the bond, and although he should be re-elected several years in suc


Justice Nott, in delivering the opinion of the Court, says: "It does not appear upon the face of the bond, for how long a time its obligation was intended to continue. But its object appears to be to secure the faithful performance of Mr. Trezvant's duties as Treasurer of the South Carolina Society—the duration of the bond therefore must be determined by the duration of the office. By reference to the rules of the Society, it appears that the Treasurer was elected only for one yeur, the legal operation of the bond therefore cannot be carried beyond that period."

In the case of the United States vs. Nicholl, 12 Wheat. R. 505; the Supreme Court held that the sureties of Robert Swartwout as Navy Agent, were not responsible for moneys placed by the government in the hands of the principal, after the legal termination of his office, but that they were liable for moneys which came into his hands while in office, and which he subsequently failed to account for and pay over.

It has been suggested in argument, inasmuch as Bradshaw had made himself liable to Lamar by failing to collect the execution, ample time having elapsed to do so before his retirement, that had not Buckner paid the plaintiff, the securities would have been responsible to do so, and that consequently they are not damnified. Upon examination this position is untenable. Had Lamar proceeded against Bradshaw, the latter would have had resourse over against Buckner, and that would have terminated the case. So that in any view that can be taken of the matter, both upon principle and authority, the opinion below was right. That Buckner will sustain loss, if Bradshaw is unable individually to respond to him, is possible, still we can do nothing for him. It is damnum absque injuria. Judgment confirmed.

Booth vs. Williams.

No. 35-TATTNALL BOOTH, plaintiff in error vs. JEREMIAH W. WILLIAMS, defendant in error.

[1.] Under the Acts of 1822, and 1823, to prevent the fraudulent enforcement of dormant judgments and executions, a return must be made by the proper officer on such execution every seven years, or it will be presumed to have been satisfied, and fraudulently kept open.

Dormant Judgments, &c. From Houston Superior Court. Judge FLOYD presiding. October Term, 1846.

For the circumstances, see the decision of the Supreme Court.

KING, for plaintiff in error.

H. COBB, of Houston, for defendant in error.

By the Court-WARNER, J. delivering the opinion.

This case comes before us on a bill of exceptions and writ of error from the Superior Court of the County of Houston.

It apppears from the record, that a judgment was obtained in the Superior Court of Jones County, in favour of Tattnall Booth, against Jeremiah M. Williams, on the 30th day of October, 1824. On the 20th day of January, 1825, the Deputy Sheriff made a return thereon of " no property to be found." On the 2d day of August, 1829, there was another return made on the execution, by the proper officer, of "no property to be found, whereon to levy this fi. fa." There was no other entry made on it until the first of November, 1846, a period of more than seventeen years. The question made in the Court below was, whether this execution was dormant within the provisions of the Acts of 1822 and 1823.

The Court below decided that the execution was dormant, within the true intent and meaning of those Acts, and that an entry should be made by the proper officer every seven years; and that an entry made on the execution within seven years from the date of the judgment, was not sufficient to keep it alive. To which decision the plaintiff in error excepted, and now assigns the same for error in this Court.

By the common law, executions were required to be sued out within a year and a day after entering the judgment, otherwise the

Booth vs. Williams.

Courts held, prima facie, that the judgment was satisfied and extinct. 3 Black. Com. 421. The common law was altered in this particular by the 31st section of the Judiciary Act of 1799. That Act declared" executions should be of full force until satisfied, without the same being obliged to be renewed on the Court roll, from year to year, as heretofore practised." Marbury & Crawford's Dig. 301. In 1811 the Legislature made the same declaration. Prince, 436.

As the law stood up to the time of the enactment of the [1.] Statute of 1822, there was no limitation to executions until they were satisfied. This was considered an evil, and productive of fraud; the caption of the Act of 1822 is to "prevent a fraudulent enforcement of dormant judgments." The preamble to that Act recites, that "dormant judgments, by being collusively kept open, are made the instruments of fraud on innocent purchasers, and often operate oppressively on vigilant and bona fide creditors." The third section of the Act of 1822 declares, "that all judgments that have or may be rendered in any of the courts of this State, on which no execution shall be sued out, or on which no return shall be made on the execution within seven years from the date of the judgment, shall be void and of no effect." Dawson's Compilation, 209. This Act of 1822 was amended by the Act of 22d December, 1823, the caption of which latter Act declares it to be "to prevent a fraudulent enforcement of dormant judgments." The first section of the Act of 1823 enacts, "that all judgments that have been obtained since the said 19th day of December, 1822, and all judgments that may be hereafter rendered in any of the courts of this State, on which no execution shall be sued out, or which executions if sued out, no return shall be made by the proper officer for executing and returning the same, within seven years from the date of the judgment, shall be void and of no effect: Provided that nothing in this Act contained shall prevent the plaintiff or plaintiffs in such judgments, from renewing the same after the expiration of said seven years, in cases where by law he or they would otherwise be entitled to do so; but the lien of such revived judgments, on the property of the defendants thereto, shall operate only from the time of such revival." Dawson's Compilation, 214.

The plaintiff in error contends that the entry made on the execution by the proper officer, on the 2d August, 1829, (the same being made within seven years from the date of the judgment a compliance with the statute, and will keep the executio

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Booth vs. Williams.

for any indefinite length of time, until the same is satisfied. One of the fundamental common law rules for the construction of remedial statutes is, to consider the old law, the mischief, and the remedy; and it is the business of the Judges so to construe the statute, as to suppress the mischief and advance the remedy. 1 Black. Com. 87. Furthermore, statutes against frauds are to be liberally and beneficially expounded. Ibid 88. By the old law as it stood at the time of the enactment of this statute, executions remained open until satisfied. This was considered an evil. After a year and a day, as we have seen by the common law, the execution was presumed to be satisfied and extinct. The Legislature intended to fix a period after which the execution, when there had been no entry by the proper officer, should be presumed to be satisfied and extinct, to prevent frauds on innocent purchasers, and vigilant bona fide creditors. As the old law stood, a judgment might be obtained and no execution issue thereon, or if issued, no action had with it against the defendant for years, who might be in the possession of ample property to satisfy it, which property would give him credit, and contracts would be made on the faith of it; but when the bona fide creditor instituted suit on his demand obtained judgment and execution, and proceeded to sell the property, the old execution lying dormant for years would suddenly spring into action and sweep away the money, or an honest purchaser of the property from the defendant, might be stript of his earnings for years by the sudden and unexpected appearance of the old execution, which had been dormant and concealed until witnesses were dead and removed, who could prove its satisfaction; the holder of it perhaps colluding with the defendant to subject the property of the honest purchaser, and defraud the bona fide and vigilant creditor. The Legislature intended to remedy this mischievous evil by requiring plaintiffs in judgments to issue their executions within seven years from the date of their judgments, and when issued, if they permitted them to lie dormant without being put in action within seven years from the date of the judgment, the same should be presumed to be fraudulent, collusively kept open and void. The mischief under the old law was, in permitting the executions to lie dormant, secretly kept in the pockets of the plaintiffs without ever permitting them to see the light of day, until some honest purchaser got possession of the defendant's property, or some bona fide creditor was about to enforce his demand, and then they would spring into active existence with as po

Booth vs. Williams.

tent energy as if they had never been satisfied with the money of the defendant, and collusively kept open by a secret understanding between himself and the plaintiff. But it is said the letter of the statute is complied with by having the entry made within the seven years from the date of the judgment, and then the execution may run forever without any other entry being made on it; the one entry gives it everlasting vitality, it may then sleep quietly in the pocket of the plaintiff, until the existence of such a paper shall have passed from the memory of the present generation and still be alive as a valid execution. This very execution appears to have quietly slumbered in the custody of its owner for more than seventeen years, but when money was raised from the sale of the defendant's property, and about to be distributed, the breath of life is desired to be given to it, that it may participate in the distribution. The plaintiff insists, notwithstanding it has slept so long, it is not dead; that the entry in 1829 imparted to it everlasting life and vigour. Such a construction of the act in our judgment, would defeat the very object of the statute. The intention of the legislature was to impose a limitation on executions which had remained dormant for seven years, to prevent fraud. The act declares in effect, if an execution shall remain dormant, and no return be made on it within seven years, it shall be presumed to have been paid and fraudulently kept open, and shall be void. Would not the same mischief exist which the legislature intended to remedy by permitting the execution to remain dormant for seven years after the last entry, as would exist, if it remained dormant for seven years from the date of the judgment? The mischief against which the act is directed, is, permitting the execution to remain dormant for seven years, wihout having a return made on it by the proper officer.

Are not the rights of innocent purchasers, and vigilant bona fide creditors, as much affected by an execution which has an entry made on it within seven years from the date of the judgment, and then permitted to remain dormant for seven years from the date of the last entry on it by the proper officer? Is it not a dormant execution, within the reason, spirit, and intention of the Legislature? Such an execution, in our judgment, is fully within the mischief contemplated by the Legislature in the enactment of the statute. Being a statute for the prevention of fraud, it ought to receive a liberal construction, such a construction as will suppress the mischief and advance the remedy which the Legislature intende

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