Opinion
(June Term, 1830.)
Actions on judgments obtained before a justice of the peace which are barred by the act of 1820 (Rev., ch. 1053) are not revived by the act of 1825 (Rev., ch. 1296), which extends the time of limitation to seven years.
THE plaintiff in March, 1828, sued out a warrant against the defendant upon a judgment rendered against his intestate in May, 1821, and on which the last fieri facais issued in September following. Upon the plea of the defendant, the only question was whether he was protected by the act of 1820 (Rev., ch. 1053), entitled, "An act limiting the time within which the judgments before a justice of the peace may be revived."
Badger, for the defendant. (375)
W. H. Haywood, contra.
FROM WAKE.
MARTIN, J., holding that the act of 1820 was repealed by the act of 1825 (Rev., ch. 1296), required seven years to form a bar, the plaintiff had a verdict, and the defendant appealed.
By the act of 1820 (Rev., ch. 1053), where a judgment obtained before a justice of the peace lay dormant for three years, all process issued to revive it after that time was declared to be void and abateable on the plea of the defendant. In the present case the judgment was obtained in 1821, and the last execution issued upon it was in the same year. Three years after that time, by act of 1820, all process issued to revive the judgment was void and might be abated on the plea of the defendant. By the lapse of three years, therefore, the judgment was barred; for the act means that when it uses the word abated. By the act of 1825 (Rev., ch. 1296) actions of debt upon the judgment of a justice shall be commenced within seven years. It is evident that the act of 1825 altered the law of 1820, and made seven years instead of three a bar to justices' judgments, in case they lay dormant during that time. But is it credible that the legislature, by passing the act of 1825, intended to disturb rights which had been put to rest by the act of 1820? The fair construction of the act is that it was intended it should operate in cases arising after its passage, or, perhaps, upon cases where a three years' bar had not run; but not upon cases which the act of 1820 had already barred. Suppose in this case, a warrant had been brought given by the justice of the peace more than three years after its date and before the passage of the act of 1825, and it had been abated on the plea of the defendant under the act of 1820; would not this be a bar to a warrant brought after the act of 1825? If the act of 1820 was a bar in such a case, was it indispensable that it should be called into action before the bar was completed? But a plea in abatement founded on the act of 1820 is not a plea to the merits, and is only authorized by that act. Now, if the (376) legislature found fault with that act, and wished to alter it, the act of 1825 would permit a warrant to be brought on a justice's judgment not more than seven years old, although it had been abated or barred (which is the same thing) under the act of 1820; because not only that act was repealed, but all abatements of suits under it. If this would be improper (as I am confident it would be), so I think it would be improper not to consider the defendant protected by the act of 1820, and not let his protection depend on the casualty, whether he had been warranted or not, and had an opportunity of pleading the last mentioned statute.
PER CURIAM. Error.
Cited: Phillips v. Cameron, 48 N.C. 391.