
    Jones’s Administrator v. Hook’s Administrator.
    February, 1824.
    Foreign Judgment — Statute of Limitations — What Law Prevails. — In an action brought in Virginia, on a judgment obtained in North Carolina, the act of limitations of N. Carolina cannot be pleaded in bar; but, the law of the former must prevail; the act of limitations affecting the remedy, and not the right.
    Same — Same—Same.—Nor, as it seems, does th'e act of limitations of Virginia apply to such a case.
    On the 11th day of September, 1811, the administrator of Agnes Jones, deceased, brought an action of debt against the administrators of John Hook, deceased, in the Superior Court of Law for Bedford county, on a judgment obtained in North Carolina for 2061. 5s. 8d. of the currency of North Carolina, equal to 1541, 13s. 7d. Virginia currency, including costs. The North Carolina judgment was obtained in the County Coust of Warren of that State, in February, 1800, a copy of which duly authenticated, was produced in Court.
    The defendants pleaded, 1. Nil debet, on which issue was joined; 2, That the action was founded on a judgment obtained in North Carolina; that, - by a law of that State actions to revive judgments obtained in the Courts of the said State, must be sued and prosecuted within years *next after the rendering of such judgment; and. that the plaintiff did not prosecute this action within the said time.
    The plaintiff replied to the last mentioned plea, that, from the time of rendering the judgment in the declaration mentioned, the' plaintiff’s intestate was out of the Commonwealth of Virginia until her death to wit: in the State of North .Carolina; rnd that since her death, the plaintiff, her administrator, has been out of the Commonwealth of Virginia, to wit: in the State of North Carolina, from the day of , until the bringing of this action.
    The defendants rejoined, that neither the intestate of the plaintiff, nor the plaintiff, since her death, have been inhabitants or citizens of the Commonwealth of Virginia, but have been citizens and inhabitants of the State of North Carolina from the date of the judgment and at the time thereof, on which this action is founded, until the commencement of this action.
    To this rejoinder the plaintiff demurred; and he demurred, also, to the second plea.
    The following agreement of facts, was entered into by the parties,'viz: that in the year 1796, Agnes Jones, the plaintiff’s intestate, instituted an action or detinue in the State of North Carolina, against John Hook, the. defendant’s intestate, who was then within the jurisdiction of the State of North Carolina, but an inhabitant of Virginia, and obtained a judgment against him in the year 1S00, for the sum of £200, Carolina currency. John Hook, in the year 1796 or 1797; returned from North Carolina to Virginia, where he then lived, and continued to live, until his death, without having satisfied the said judgment, and died in the year 1808. Agnes Tones remained in the State of North Carolina from the time of the said judgment until her death; and the plaintiff, her administrator, has not been within the limits of this Commonwealth until the year 1810, the year before the institution of this suit. By the law-of North Carolina, actions of debt, on simple contracts, must be brought within three years after the cause of action ^accrued. Upon this statement of facts, it was submitted to the Comí, whether the defendants could avail themselves of the act of limitations of this State, or of the aforesaid act of North Carolina, to bar the plaintiff’s claim.
    The Court gave judgment for the defendants, and the plaintiff appealed to this Court.
    Leigh, for the appellant.
    The question is, whether the appellee could avail himself of an act of limitations of North Carolina, in bar of an action brought in Virginia, on a North Carolina judgment. Even if this question should be decided in the affirmative, the acknowledgment of the executors that the debt has never been paid, would take the case out of the statute.
    If a law of North Carolina can be pleaded to a suit in Virginia, the laws of that State must have force here. But, admitting that it can be so pleaded, it does not apply in this case; because, the law relied upon in this instance, is one relating to simple contracts, and does not apply to judgments. If it be said, that a judgment of North Carolina is only a simple contract in Virginia, I answer, that the law in question speaks only of simple contracts in North Carolina, and the subject of this suit was, unquestionably, in North Carolina, a judgment.
    But, this question must be decided by the laws of Virginia, and not of North Carolina. The act of limitations has always been held to affect the remedy, and not the right; and, therefore, wherever an action is brought, it must obey the law of the forum, and not of the place of contract. These principles are fully supported by the cases of Williams v. Jones, 13 East, 439; 2 Mass. Reports, p. 84; 5 Johns. Reports, 132; 3 Johns. Reports, 263, Rug-gles v. Keeler.
    If the law of Virginia is to give the rule, and not that of North Carolina, there is no obstacle to the recovery of the appellant, because no .part of the act of limitations of ^Virginia applies to foreign judgments. But, if it does comprehend such a case, the appellant falls within the exceptions of the act, as neither the plaintiff nor his intestate was ever in Virginia from the time when the judgment was obtained, until the year 1810.
    Johnson, £or the appellees,
    said, that he did not expect the Court to affirm the judgment, but to send it back with instructions. The only question is, whether the Court can decide the cause, on the case agreed, either for the plaintiff or the defendant? The case agreed ought to set forth such facts as to enable the Court to pronounce a judgment. Brewer v. Opie, L Call, 212.
    in this case, three things are necessary to be ascertained; 1. That a Court of North Carolina can proceed ex parte; 2. That the Court of North Carolina is a Court of Record; 3. That, according to the laws of North Carolina, a judgment is a record, and not a simple contract.
    As to the argument, that the agreement of the parties that the judgment has not been paid, takes this case out of the operation of the act, the answer is, that an administrator cannot, by his mere declaration, take a debt of his intestate out of the operation of the statute.
    The case agreed states, that every simple contract is barred by the act of North Carolina. No exceptions are stated, and, therefore, none can be presumed to exist.
    The territorial rights of Virginia are not infring'ed by this doctrine; because, it proceeds on the supposition, that the law of Virginia permits the operation of the act of limitations of N. Carolina within the limits of the former State; and Virginia can repeal the rule whenever she thinks proper.
    The question is, whether this limitation of North Carolina be a part of the contract, or only affects the remedy? There is nothing in the case agreed, to shew that the law in question relates only to the remedy. Upon this principle, it is to be presumed that parties, in making their contracts, "take into view the prospect of recovery, and the terms on which it can be had, and adapt their contracts to the existing state of the law. The case from Massachusetts is no authority, . and proceeds on the erroneous supposition, tha1 my doctrine would interfere with the jurisdiction of an independent State; whereas, it is perfectly clear, that the doctrine does not suppose any inherent authority in i he foreign law, but only gives it effect as far as the independent State chooses to permit.
    The case from East, is in my favor; because, it establishes the principle, that when the. right is extinguished by the law of a foreign country, it is lost altogether. In North Carolina, there can be no doubt that all remedy was lost in this case, if the law bears the construction that I have put on it; and, the remedy being lost, the right also was gone, if the maxim be true, that there is no right without a remedy. The right, therefore, was extinguished every where.
    That actions on foreign judgments are classed among simple contracts, is proved bv 1 Chitty’s PL 102, 98, and Pliill. on Evid. 254.
    The case agreed furnishes no information, whether a judgment in North Carolina is considered as a simple contract, or not.
    In England, the judgment of a Court, not a Court of Record, is on the footing of a foreign judgment. We cannot say, from any thing in this record, whether the Court which rendered this judgment was a Court of Record.
    The act of limitations is pleaded in bar, and not in abatement. A judgment in North Carolina would have been a conclusive bar to an action for the same cause in Virginia. It is true, that a new assumpsit will take a case out of the act of limitations. But, the assumpsit only revives the original cause of action, and does not create a new one.
    Time is always an important part of a contract.
    "Lord Kaimcs, book 3, ch. 8, § 6, p. 364, says,' that in Scotland^ length of time, which would be a bar in England, may be used as a presumption, though not by plea. Apply this doctrine to the present case.
    The judgment of a Court, not of record, is a simple contract. The case agreed, does not find that the Court of North Carolina was a Court of Record. Tt does not appear whether this judgment was rendered on the appearance of the defendant. A foreign judgment not obtained on the personal appearance of the defendant, is of no authority whatever. Phill. on Evid. 254. ch. 3, § 3; Buchanan v. Rucker, 9 East, 1.92. TT . ,
    TT But, the Constitution of the^ United States, art. 4, § 1, has a decisive influence on this case. This clause relates to the effect of the records themselves, and not merely to the mode of authenticating them. The law of Congress, 1. vol. p. JI5, fully confirms this construction, and explains this article of the Constitution; and the decisions of the Supreme Court are in the same spirit. Mills v. -, 7 Cranch, 481; Hampton v. M’Connell, 3 Wheaton, 234.
    Heigh, in reply.
    As’to the objection, that it does not appear that this judgment was obtained after process served on the defendant, the case agreed states, that John Hook was within the jurisdiction of the Court. It is to be presumed, that the Court of North Carolina was a Court of Record, unless the contrary appears. It is the defendant’s duty to shew that he is within the act of limitations; and not the plaintiff’s duty to shew that he is without it. In North Carolina, this was a judgment; in Virginia, it is said to be a simple contract; therefore, the act of limitations would be a bar in Virginia, while it would not in North Carolina!
    All writers agree, that the act of limitations affects the remedy, and not the right. The power of reviving a " contract by a new assumpsit, proves that the act relates merely to the remedy. A plea of the act of limitations is certainly a plea in bar; but, this is merely because it destroys the action.
    As to the Constitution of the United States, and the decisions of the Supreme Court, they only prove that no plea shall be admitted to falsify the original judgment.
    February 14.
    
      
      See monographic note on “Judgments” appended to Smith v. Charlton, 7 Sratt. 425; monographic note on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.
    
    
      
      The principal case is cited with approval in TJr-ton v. Hunter, 2 W. Va. 88.
    
   JUDGE GREEN.

The appellant brought an action of debt against the appellees, on the 11th day of September, 1811, upon a judgment recovered by the intestate of the appellant against the intestate of the appellees, in the County Court of Warren, in North Carolina, in February, 1800; and the declaration makes proferí of the record of that judgment. After a variety of pleading, the parties agreed a case to this effect: that such a judgment was rendered as is set out in the declaration, which was never satisfied, either by Hook, or his administrators: that the original suit was brought in North Carolina, in 1796, when Hook, then an inhabitant of Virginia, was in North Carolina: that Hook, in 1796 or 1797, returned to Virginia, and continued to reside in Virginia, until the time of his death, in 1808: that the testator of the appellant remained in North Carolina, until her death; and her administrator was never in Virginia, until 1810: that, by the law of North Carolina, actions of debt on simple contracts must be brought within three years after the cause of action accrued; and they agreed, that if the defendants could avail themselves of the act of limitations of Virginia, or of the aforesaid act of North _ Carolina, to bar the plaintiff’s claim, judgment should be given for the defendants; otherwise, that judgment should be given for the plaintiff for $400, and $13.60. Upon this case, the Court gave judgment for the defendants, and the plaintiff appealed.

*This agreed case admits the validity and obligatory effect of the North Carolina judgment, unless that effect be obviated, either by the law of North Carolina, stated in the agreed case, or by the statute of limitations of Virginia.

The statute of Virginia has no effect upon the case; for, even if it came within any of the provisions of our statute, as it does not, it falls within the exceptions of the statute.

The law of North Carolina, as agreed by the parties, is strictly an act of limitations; for, it is a limitation of the remedy, and does not affect the right, .further than by refusing a remedy. The cases cited at the bar, shew that the general rule is, that rights as to personal and transitory things, are to be determined by the laws of the country where the right accrued; but, that remedies are to be governed by the laws of the country in which the remedy is sought. If, therefore, the limitation as to the remedy found in the law of North Carolina would have applied to this case, if the remedy had been pursued in that State; yet, it does not apply to any remedy pursued in Virginia. It is probable, that even in North Carolina, the act limiting actions of debt on simple contracts to three years, could not apply to an action on the judgment in question. The counsel for .the appellees, in the Court below, supposed that, as at the common law, an action on a foreign judgment was an action on a simple contract, that the statute of North Carolina, limiting actions of debt upon simple contracts, properly applied to this case, if any statute of limitations of North Carolina could apply to the case; overlooking the Constitution and laws of the United States, which give to judgments of any of the United States, the same effect in all the other States, as they have in the State where they are rendered.

The judgment is to be reversed, and entered for the appellants, according to the agreement of the parties.

NUDGE COALTER.

I have not considered it necessary in this case; and not having some of the authorities referred to, have therefore made up no opinion on the question, whether, if there is any statute in North Carolina by which this action could be barred there, that statute would operate here; and, indeed, as it is admitted by the case agreed, that neither the intestate of the appellees, nor the appellees themselves ever were in the State of North Carolina after the rendition of the judgment in question, so as to be amenable to process there, it is not to be presumed that a statute so unjust can exist.

Our statute of limitations, I think, does not extend to the case; and, if it did, the facts agreed would bring it within the exceptions in that statute.

It is admitted by the case agreed, that the judgment in question is a subsisting judgment unsatisfied, and of course that the action of the appellants is sustainable thereon, unless the statute of limitations of North Carolina, in relation to simple contracts, or our statute of limitations, is a bar to the action.

In regard to the former, it is alledged, that the case agreed is imperfect, because it is not stated whether the intestate of the appellees had b.een served with process in North Carolina, or whether the judgment was against him as an absentee; nor is it stated, whether the judgment was in a Court of Record or not; and, if in a Court of Record, still the judgment has no greater force in this State, than a simple contract.

According to my view of the case, these questions, at most, would only have been important on the trial, had the defendants wished to impeach the judgment; but, this matter is put to rest by the case agreed, which admits the validity of the judgment.

Admitting ever thing that would shew, that this judgment had no more validity than a simple contract and the *foundation of it subject to be impeached, it does not follow that a judgment of any kind is a contract. The law of North Carolina, the substance of which is stated in the case agreed, relates to contracts, not to judgments. What the law is there, in relation to judgments, has not been stated; doubtless, because it would shew, that this suit would not have been barred by it in that State. The idea seems to have been, that, supposing it to have no more validity here than a simple contract, that either the law of that, or of this State, in relation to such contracts, ■would be a bar. Our law does not apply, as before stated; and the most that could be contended, would be, that this action, if prosecuted in North Carolina, would be barred there. But, no such law is shewn; and, therefore, the question, whether such law, if it did exist, could avail the party here, does not arise.

The judgment must, therefore, be reversed, and entered for the appellants.

JUDGE CABELL.

The case agreed admits the judgment on which the action is brought, and admits, moreover, that it has never been satisfied. The only question between the parties is, whether the action is barred by the act of limitations of North Carolina or Virginia.

I consider the law as clearly settled, that whatever relates to the essence of the contract, is to be governed by the law of the place where the contract was formed; but, that what relates to the remedy for enforcing the contract, is to be governed by the law of the place where the contract is sought to be enforced. According to this principle, it is the act of limitations of Virginia, and not that of North Carolina, to which we must look, in deciding this cause; and, if the case comes within our act, it is also manifest that it comes within the exceptions to the act.

The judgment must, therefore, be reversed, and entered for the appellant, according to the case agreed. 
      
      Judge Brooke, absent.
     