dissenting.
The Act of Limitations of 1805, contains this, among other provisions: “ and the said actions of debt, upon judgments obtained in Courts other than the Courts of this State, shall be brought within jive years next after the judgment shall have been obtained, and not after”.
The plea of the defendant is, that no right of action, in the premises, had accrued, in favor of the plaintiff, at any . time *19within five years next or last, preceding the bringing of the suit.
This is not a plea of the provision of the Act of 1805, but it was treated by the parties, and therefore considered by the Court, as if it was. The' plea was treated and considered as if, instead of saying what it says, it had said, that the judgment on which the action was founded, had not been obtained at any time within five years next, before the commencement of the suit.
Thus treated and considered, the plea was held, by this Court, to be .a good pica of the aforesaid provision of the Act of 1805, and to be a bar to the action. From the latter part of this judgment, I dissent, and for these reasons :
The action is not debt, but assumpsit. And the provision of the Act of 1805, mentions only “actions of debt”. '
“A casus omissus -can, in no ease, be supplied by a Court of Law, for that would.be to make laws”. (Jones vs. Smart, 1 Durn. & E. 52.) To the same effect, is The King vs. Powell, (4 do. 576.)
In Brandling and Barrington, (6 B. & C. 475,) cited in Dwarris on Statutes, 711, Lord Tenderden said.: “the process under which the Sheriff seized and spM the goods in question, was not process of execution on a judgment—it was not, therefore, within the words of the Statute. But it is said, it was within the Equity. Speaking for myself alone, I cannot forbear-observing, that I think there is always danger in giving -effect to what is called the equity of a Statute; and that it is much better and safer to rely on and abide by the plain .words, although the Legislature might possibly have provided for other cases, had their attention been directed to them”. Baylby, J. said: “I certainly think that the present case comes within the mischief intended to be remedied by the Stat. 8 Anne c. 14, §1, and I should have been better satisfied if it could have been brought within the fair construction of the words of that enactment. But I think we should be attributing too comprehensive a meaning to the words of the Statute”. Holroyd, J., said: “ This case does not appear to *20have been contemplated by the Legislature, although it may, perhaps, be within the mischief which they intended to remedy by the 8 Anne, c. 14”.
“ The result”, says Dwarris, “is, that to bring a case within the Statute, it should be not only within the mischief contemplated by the Legislature, but also within the plain, intelligible import of the words of the Act of Parliament”. (Ibid.)
I think he is warranted in saying this.
Now, the action of assumpsit 'is not within “ the plain, intelligible import of the words” of the aforesaid provision of the Act of 1805. Assumpsit is not a form of action which is included in the form of debt.
And it cannot be assumed, that assumpsit is even within the .mischief, contemplated by this provision of the Act of 1805.
All Statutes of Limitation are in derogation of common 'right. They say, in substance, that one man shall, without consideration, have what belongs to another, if, by any means, he can get hold of it, and can escape being sued for it, by the •other, for a specified length of time. By the Common Law, a right never died, and for every right there was a remedy; and, therefore, as the right never died, the remedy never died.— But the Statutes of Limitation declare, that when a right is asserted against you, all you have to do, to protect yourself from it, is to say—true, this right may exist against me—I cannot deny that, but then it has done so for these several years,, and, therefore, it ought not to be asserted against me. Suchi Statutes as these, the English Courts, of the era of our Revolution, and of a long period preceding our Revolution, held to' be “ odious”, and to be subject to a strict construction.
Now, by a strict construction of the said provision of the Act of 1805, assumpsit is not within the mischief, even, which' the provision had in view, but only debt is.
“ An action of assumpsit may not.be barred by the Statute, when to an action for a tort, upon the- same demand, the Statute may be pleaded”. This is the language of Angel, in his work on Limitations, §5—a work, one of the leading objects of which seems to be, to make the pleading of the Statute ofi *21limitations respectable. And what reason can be given for this, except that Statutes of Limitations are such Statutes as ai’e to be construed strictly; and that in Statutes to be construed strictly, nothing is to be considered within the mischief, but what is within the words. ■
But not only is assumpsit a casus omissus from this provision of the Act of 1805—it is also a casus expressus of another provision of that Act. Assumpsit is provided for by another provision of the Act of 1805. Sec. 4 declares, “that all actions upon the case, other than for words, shall be commenced and sued within four years next, after the cause of ;such action or suit hath accrued, and not after”. (Clayton’s Dig. 271.)
Now, the words, “actionsupon the case”, include actions of assumpsit. BlacJcstonesays, “a promise is in the nature of a verbal covenant, and wants nothing but the solemnity of writing and sealing, to make it absolutely the same. If, therefore, it be to do any explicit act, it is an express- contract, as much as any covenant, and the breach of it is an equal injury. The remedy, indeed, is not exactly the same, since, instead of an action of covenant, there only lies an action upon the case, for what is called the assumpsit or undertaking of the defendant”. (3. 157.) Indeed, in Comyn’s Digest of the Law, there is no such title as that of “assumpsit”. In place of such a title, there is only the title, “ action upon the case upon assumpsit”. And when we come to trace the history of the action of assumpsit, as we now call it, we find that it exists only by virtue of having been forced into an'd made a part of the action on the case, a process to which it was only, after long years, and many assaults, that that action could be made to submit. (3 Reeves Eng. Law, 244, 394. 4 do. 171, 380, 527.)
To be more particular—in Chandler vs. Villett, it was assumed, as a matter of course, that assumpsit was included within the words, “ all actions upon the case”, in the Statute of Limitations of 21 James I. (2 Saund. R. 120, 121.) The •only doubts was, whether it was also included in the saving *22clause of that Act, as to infants and others under disability, that clause not having in it the expression, “ all actions upon ■the case”, but only this, “ actions upon the case for words”. The Court held it to be within the saving. And the Acts of 1805 and of 1767, of this State, are both, in this respect, the same as the Act of James.
Indeed, the word assumpsit does not occur in the Statute • -of Limitations of the 21st of James I.; or in this Act of Georgia, of 1805, or the previous Act of 1767 ; or in any •other Act of Limitations, of England or of Georgia. Tet, ■•each of these named Statutes has been oftener, probably, applied to assumpsit, than to any other form of action. How could this be? Only because the action was included in the ■‘.expression used in the Acts, “ all actions on the case”.
' This fourth section of the Act of 1805, therefore, in saying, '•as it does, that “ all actions upon the case, other than for ■words, shall be commenced and sued within! four years” after ■the accrual of the cause of action, says that all actions of ■assump>sit shall be brought within that term—that is to say, it says that all actions of assumpsit shall bo governed by ,this section, and by consequence shall not be governed by the provision aforesaid, in another section of the Act, which mentions debt on judgments, other than judgments of the Courts •of this State.
It is true, that our Judicial system has abolished forms of action, and in their place, has put simply petition; but it is no less true, that a, construction, both Legislative and Judicial, of that system, has prevailed from its origin, which requires the petition to assume the likeness of a form of action—a construction which gives us petitions in ejectment, petitions in trover, in casé, in debt, and so fo^th—that is to say, petitions in the likenesses of those several forms of action. And this construction, in making petitions take the likenesses of the old forms of action, also makes them take the incidents of those forms. A petition in ejectment, has the incidents of ejectment —in debt, the incidents of debt—in case, the incidents of case-; that is to say, with respect to limitations in Statutes, *23this construction makes those limitations which limit debt, limit petitions in debt—those which limit case, limit petitions in case.
The case before this Court, is a petition in assumpsit. That is to say, a petition in case, and not a petition in debt. It follows, therefore, that the limitation in -the Act of 1805, which limits case, is tho limitation which limits this petition; and that the limitation in that Act, which limits debt on judgments, other than the judgments of this State, is not tho limitation which limits the petition.
But even if this latter limitation were the one which applies to the petition in this case, the result would not, in my opinion,. be changed; for I consider that limitation to stand repealed by-' the Act of 1806, reviving the Act of 1767. (Clay. Dig. 344.)
This revived Act of 1767, declares, that u all actions off debt, grounded upon any lending or contract without special-, ty, shall be commenced and sued, within four years, next after the cause of such action or suit, and not after”.
Now, debt is an action ex contractu ; and, therefore, all actions of debt are founded upon contracts of some sort. An. action of debt on a judgment of another State, is,, therefore, founded upon contract. And all contracts are contracts, either with “specialty”, or “without specialty”. A contract with specialty, is a contract under seal, and no other sort of' a contract is a contract with specialty. (Bouvier’s Law. Dic.— ' Specialty’.) A judgment is not under seal—certainly not under the kind of seal meant in the definition of specialty, the. seal of the parties to it.
A contract, therefore, of which the judgment of a Court of" another State is evidence, is a contract “ without specialty”.
Being a contract “ without specialty”, the'action of debt, upon it, is expressly limited by the Act of 1767, revived by the Act of 1806.
And as the limitation in. the revived Act, is different from that in the Act of 1805, it repeals that in the Act of 1805.
These are my reasons, in brief, for thinking that the plea is not supported by the Act of 1805.
*24Perhaps I might stop here. But the form of the plea justifies, if it does not require me to go further—to go to the extent of saying whether I think the plea is supported by any Aet of Limitation'. In a few words, I will go this length.
If the plea is supported by any Act of Limitation, it must be, I think, by the Act of 1767, revived by the Act of 1806, and by the part of that Act which declares, that all “actions upon the case, (other than for slander”)—an expression which ineludes all actions of assumpsit—shall be commenced within four years next, after the accrual of the cause of action.
I think it is not supported by this part of that Act, because the cause of action, according to the facts in the case, accrued within four years before the commencement of the suit.
The judgment sued on, was obtained in 1838. Walker, the defendant in it, did not then, or ever afterwards, reside in Georgia. In 1848, he died, in Alabama. In 1850, Sanford took out letters of administration on his estate. In 1851, this suit was commenced.
Now, until letters of administration were taken out, no cause of action ever accrued to the plaintiff.
In Douglas vs. Forest, (4 Bing. 686,) the Court say, “ although the injury of which the plaintiffs complain, has existed more than six years, yet, they had no cause of action until .there was some person. within the realm, against whom the action could be brought. Cause of action is the right to prosecute an action with effect. No one has a complete cause of action, until there is some one he can sue. The deceased was never in England, after the cause of action accrued against him. After his death, there was no person in England against whom the plaintiffs could proceed, until the defendant took upon himself the execution of his will”.
To the same effect, is Murray vs. The East India Co., (5 Barn. & Adolph. 204); and Cary et ux. vs. Stephenson, (2 Salk. 421.) Perry vs. Jenkins, (1 Myl. & C. 118.)
These decisions are, it is true, upon the Act of Limitations of the 21 James I; but that Act is the same, in respect to the matter under consideration, as the Act of 1767. And, doubt*25less the Act of 1767 was intended to be construed in the sense of the Act of James, in all particulars, except those in which it used language different from that of that Act. And those points of difference consist chiefly in this : the terms of limitation are shorter in the Act of Georgia,, than in the Act of James. So that, in any view of the case, I think the plea -is insufficient.