concurring.
Not having the original bill of exceptions, and transcript of the record, in this case before me; and not having been furnished by the Reporter, with a statement of the facts, I shall proceed to discharge the duty imposed upon me, by the Act organizing this Court, in cases of dissent, as briefly as possible.
The facts of this case, as I understand them, are these: Lewis Bishop, as surviving partner, &c. obtained judgment, in the Circuit Court of Talladega county, Alabama, against David S. Walker, bearing date the 10th of December, 1838. The defendant was, at that timo, and continued so till his death, a citizen of Alabama. Nor did he ever, after that time, reside in Georgia, or own property in that State, until the year 1847, when, upon the death of John T. Dunn, of Monroe county, in that year, an interest in the estate of Dunn vested in Walker, ■as one of his heirs at law. Walker died in Alabama, in 1848. In 1850, Daniel Sanford, the defendant in error, administered •on the estate of Walker, in Monroe county.
The plaintiff commenced suit against Sanford, as administrator of Walker, on the judgment obtained by him against Walker, in Alabama, returnable to the September Term, 1851, of Monroe Superior Court. The defendant filed the plea of the Statute of Limitations, under the Act of 1805, in relation to-suits on foreign judgments. And the only question submitted to Judge Starke was, whether the action was barred. He decided that it was. And the assignment, in this Court is, that-the Circuit Court-erred in holding that the plaintiff’s remedy, in this case, was barred by the Statute of Limitations of 1805, which prescribes five years, from the date of the judgment, and not from the accrual of the cause of action, as the time within-which suits must be brought, in this State, upon foreign judgments.
Three propositions are maintained by counsel, who except to' the decision—
1st. That the Act of 1805, limiting the time within which *13suits shall be brought on foreign judgments, has no extra territorial operation; but acts only on the rights and liabilities of. persons subject to the jurisdiction of the Courts of this State.
2dly. That the Statute did not begin to run against the judgment sued on, until there was some person or, property, in this State, liable to the suit on the judgment, and amenable to the, process of our Courts;
And 3dly. That although the letter of the Statute might bar the suit, yet, according to the spirit and equity of it, it should not be held to operate as a bar, until the expiration of five years, from the time that suit could be instituted here.
For myself, the only reply I have.to make to all of this is, that I feel it to be my duty, honestly to construe the Act of 1805 as the Legislature intended it. And that guided by this rule, the only one which should ever be applied to the interpretation of Statutes, I see no authority for interpolating upon the Statute, the exceptions which are here proposed. The only exception to be found in this Act, is that which is contained in the third section; and it is to this .effect: “That when any person shall remove his‘ property without the limits of this State, or absconds, or conceals himself, so that his creditors cannot commence an action, the person so removing his property, or absconding, himself, shall not be entitled to the benefit of this Act, but shall be answerable for any just demand, against him, her or them”.* (Cobb’s Digest, 564, 565.)
If I felt at liberty to add to the Statute, as I am' urged to do, I might find a plausible reason, at least, to bring this case within this exception; for it might be argued, that according to the spirit of the Law, the Legislature did not intend the bar to interpose, until there was some one within the State, against whom the action could be commenced.
The State of Georgia, however, in virtue of that sovereignty by which she legislates in all other cases, has seen fit to prescribe five years, from their date, as the limit ^ithin which suits must he brought, on foreign judgments; and I am unwilling to depart from .the plain and obvious meaning of the Act, "whatever may be my private opinion, as to its true policy or *14' substantial justice. I shall be pardoned, I hope, for remarking that courtesy to our sister States, to say nothing of our Constitutional obligations, would suggest that a longer period be prescribed than that which is contained in this early legislation. ’ The policy of States, as well as their duty consequent thereon, change as they grow older, as it respects the Statute of Limitations. A much shorter bar is demanded, in a new State like Texas, than would be justified in New York or one of the older ''members of the Union.
The Act of 1805 is the only Statute, in this State, that has ever provided a bar to suits on foreign judgments. And this ’ portion of it' remains unrepealed, up to the present period. Branch Bank of Alabama against Kirkpatrick. (5 Ga. R. 34.)
And so much importance did the Legislature attach to this Act, that it was declared that “ the different Courts should be :bound thereby, although the same should not be pleaded”.
But it is said that the bar of five years, prescribed by this Act, applies to the form of the remedy, to-wit: the action of debt, and not to the remedy Pself; and that inasmuch as the ■plaintiff has brought assumpsit instead of debt, that he is not ■barred until four years next after the cause of action accrues; and that as the cause of action never does accrue, until there is some’one in the State, capable of being sued, that here the Statute did not begin to run until a year after the appointment of San■ford, as administrator of Walker, in Monroe county.
Whether debt be not the ordinary, if not the only remedy, ■to enforce the collection of judgments obtained in the Courts of the other States of the Confederacy, I need not discuss.— ’That such was the opinion of the Assembly of 1805, I entertain no doubt; for even if this judgment from a sister State, "be nothing more than a simple contract debt, which.I am not ■prepared to admit, still, I would submit that until the forepart ■of the 17th century, debt was the ordinary, if not the only remedy, in eases of simple contract. The action of assumpsit did not come into general use, until Slade’s Case. Hence it is, perhaps, that it was omitted, by name, in the early Act of *15James, which is the foundation of all the Statutes of Limitations, in this and the other States of the Union. It was in consequence of the defendant’s right to his trial by wager of law, that assrfmpsit was substituted for debt, and trover for detinue, it being only in debt on simple contract and detinue, that wager of law was allowed.
I have stated that I was not prepared to admit that a judgment from a sister State, was nothing more than a simple contract. I am aware tlvxt foreign judgments, proper, belong to this class, and are only held to bo prima facie evidence of debt. But the judgments of our sister States are distinguishable from foreign judgments in this: that by the first section of the fourth article of the Constitution of the United States, and by the Act of May 26th, 1790, section 1, the judgment of a sister State is a record, conclusive upon thé merits, to which full faith and credit shall be given, when authenticated as tho Act of Congress has prescribed.
These judgments, then, being debts of record, not examinable upon their merits, and which cannot be avoided but by the plea of nul tiel record, differ, most essentially, from judgments obtained in Great Britain or France. It may well have been, questioned, therefore, by the lawyers of 1805, whether assumpsit would lie for the enforcement of judgments from sister States., In this form of action, the plaintiff must allege, in his declara*tion, and show the certain cause of debt for which the defendant promised. But upon a debt of record from S. Carolina or Alabama, this need not be done, when it is sought to carry it into judgment, by suit in tho tribunals of this and other States, any more than in a contract under seal, where assumpsit never did lie.
But let us examine a little further into this Act of 1805, and see whether the plaintiff can escape the bar which it sets up, by resorting to assumpsit instead of debt. And I would remark, that assumpsit is not only omitted by the Act of James, but by our Provincial Act of 1767, the Reviewing Statute of 1806, and by every other Statute of Limitations passed in this State. It has been held here, however, as in England, that the wordg, *16“ actions upon the ease”, includes the action of assumpsit; and therefore, it is embraced in the 4th section of the Act of 1805, which is as follows: “ All actions upon the case, other than for words, which shall be sued or brought at any time after the passing of this Act, shall be commenced and sued, within four years, next after the cause of such action or suit hath accrued, and not after”. (Cobb’s Digest, 565.)
Now as the Act of 1805 prescribes the samo bar to actions on the case, or in assumpsit, as that limited by the Act of 1767, namely: four years, I see no reason for holding that this section of the Act of 1805 is repealed by the Reviewing Act of 1806. For this latter Act, after reviewing the Act of 1767, only repeals all other Acts and parts of Acts which militate against it. Neither so much of the 2d section of the Act of 1805, as prescribes the bar by name, against foreign judgments, concerning which the Act of 1767 was silent, nor the 4th section, which fixes the limit for actions on the case, or assumpsit, are in conflict with the Act of 1767.
But be that as it may, the Legislature of 1805, for the first time, directs its attention to the subject of foreign judgments, and undertakes to say how long the interests of the community it represents, require that its own Courts should be kept open for their recovery. And it is gravely insisted that the result of their deliberations is this: If you bring debt on these demands, which, by the way, we think the proper, if not the only remedy, it must be commenced within five years, next after the judgment shall have been obtained, and not after; and that, too, whether there be any one in the State, who can be sued, or not. In such case, that is if you bring debt, considering that the Statute of Limitations is so beneficial and peaceful, that as in ancient Greece, it should over-rule supervening obstacles—even infancy, non-residence, coverture and insanity. But only bring assumpsit on this claim, and you-may sue any time within four years, next after the cause of action hath accrued ; that is, after you find somebody in this State, either the defendant or his legal representative, against whom an action CR.n be brought! Credat Judceus Apella. For myself, I *17cannot impute such absurdity to the “ reverend, grave and potent seigniors” who passed the Act of 1805.
Having provided, and as they thought, effectually, a limitation t against foreign judgments, in the second section of the Act, they dismissed that subject from their minds. Had it intended to be included again in the fourth section, how different would have been its language. It would have been framed . thus : “all actions on the case, (or assumpsit,) other than upon-judgments, shall be sued within four years, next after the cause of such action hath accrued; and the said actions on the case (or assumpsit)-upon judgments obtained in Courts, other than' the 'Courts of this State, shall be sued within five years, next. after the judgment shall have been obtained, and not after”.
Four years was the bar' applied, by this Statute, to’ actions: of debt, generally, but five to debt on foreign judgments.— Four years was the bar applied to actions on the case, (or assumpsit) generally. Why,T ask, did not consistency suggest the propriety of excepting foreign judgments from the one form of" action, as well as the ot^er, and extending the same bar of five years to both.
I know that it has been held by the. Courts, that upon the same demand, one form of action will be barred, when another will not. But it remains yet to be shown, that the same Law or the same Legislature, can be characterized by a like piece of folly. That our law-makers intended to say, that if a defendant removes to Georgia-, pending the suit in a sister State, and an action is brought here upon the judgment, when obtained, that if debt is brought, the bar is five years—if assumpsit, four.
But it has been said that the Act of 1805 was, “ unfortunately, worded very loosely” and lasted only a year at that. I reply, that the Act of James, and all its progeny, at home and: abroad, are chargeable with the like imperfection as is admit-, ted by Mr. Angelí, who, by his Treatise on this head of the-Law, has supplied the deficiency of Ballantine and all previous, authors'. And as to the short duration of the Act of 1805, its. *18enactment, as to foreign judgments, certainly, if nob to the action of assumpsit, also, as was said by Peter on the day of Pentecost, of David’s sepulchre, “is with us unto this day”.
Finally, I take these propositions to be incontrovertible and conclusive upon this case, especially the latter, namely: that when a Statute- of Limitations provides that an action, by its technical denomination, shall be barred, if not brought within a proscribed time, that every cause for which such action may be prosecuted, is within the meaning of the Act; and so, also, when a bar is prescribed for a cause of action specified in the Statute, that the Statute operates against all actions, regardless of their form, which may be brought upon the cause of action specified.
Hence, under this latter rule, five years being prescribed by the Act of 1805, as the limit within which suits must be brought in this State, upon foreign judgments, that bar should operate, no matter what form of action may bo resorted to, to enforce the demand, whether debt or assumpsit. And hence, I concur with my brother Starke in the Court .^elow, and my brother Starnes in this Court, in holding that the plea of the five year’s bar, under the Act of 1805, was a good defence to this suit.