
    Harlee & Pressley vs. W. W. Ward.
    
      Costs — Statute of Limitations.
    
    Where a plaintiff recovers judgment and sues out execution thereon, as , a general rule, no right of action against him for the costs accrues to the officers of the CLourt until nulla bona, or non est inventus, as the case may be, has been returned. Until such return the statute of limitations does not commence to run against the claim.
    The statute of limitations was suspended by the stay law from 21st December, 1861, to 21st December, 1866, just five years. The suspension did not cease with the decision, in May, 1866, of State vs. Oarew, 13 Rich. 494.
    BEFORE GLOYER, J., AT WILLIAMSBURG, FALL TERM, 1867.
    The report of his Honor, the presiding Judge, is as follows :
    “ The plaintiffs sued in the process jurisdiction to recover for professional services, for costs and fees in sundry cases, to which the defendants pleaded in bar the statute of limitations. By a statement of the account and the eyidence, the case and the grounds of appeal will be understood.
    
      “ 1. W. W. Ward vs. S. K. Williams, nulla bona, costs, $14.
    “2. W. W. Ward vs. W. A. China, nulla bona, costs, $21.
    “ 3. Costs in case of W. A. China vs. Ward & Zindorf, and included in verdict of above case of Ward vs. China, $13.
    “4. Fee in case of W. W. Ward vs. W. A. China, $20.
    “5. Fee in case of China vs. Ward & Zindorf, $10.
    
      “There was some evidence offered to sbow payment; but I have no doubt but tliat tbe account is correct and has never been paid, and tbe only question is as to tbe bar of tbe statute.
    “1. A. fi. fa, and ca. sa. were lodged 14tb December, 1857, in tbe case of Williams. The sheriff levied the fi. fa. and after disposing of tbe proceeds of sale, be returned nulla bona on this fi. fa. .February, 25, 1861.() I held that tbe statute commenced to run at the last date, and tbe charge of $14 was allowed.
    “2. In the case of Ward vs. China, tbe fi.fa. was lodged April 5, 1858, and nulla bona returned May 8, 1858. A ca. sa. was lodged March 7th, 1860, and on his arrest tbe defendant gave bond for the prison rules with Thomas China as his surety. The prison bounds bond was after-wards assigned to Ward, who sued and recovered a verdict for tbe breach of said bond against both principal and surety. In this verdict which was rendered fall term, 1861, was included the above nulla bona attorney’s costs of $21, in the case of Ward vs. China. This item was also allowed.
    “3. The costs of $13 in the case of China vs. Ward & Zinclorf, by the written consent of Ward and China, constituted a part of the verdict in Ward vs. China, and after-wards a part of the verdicts in the cases of Ward, Assignee, .vs. W. A. China and Thomas China; and as these .latter verdicts were not rendered until the fall term of 1861, I held that this item was not barred.
    “4. The fee in the case of Ward vs. China, was due in April, 1858, when the judgment was confessed and the service had been rendered, and unless as was argued, the professional services of the plaintiffs 'continued until verdicts were rendered in the cases of Ward, Assignee, vs.- W
      
      A. and Thomas China, on the prison bounds bond in 1861, this item of $20 was barred by.the statute. The charge is specific — "for fee in Ward vs. China” — and not Ward, Assignee, and I apprehend, therefore, that the statute began to run in April, 1858, and that this item is barred.
    
      “ 5. The services in the case of China vs. Ward & Zindorf, were rendered in 1856, and this fee of $10 was not allowed.
    “ The decree was for the plaintiffs for $48.”
    The defendant appealed, and now moved this Court to reverse the decree, on the grounds:
    1. Because it is submitted as against an attorney’s own client, the former’s claim for costs and fees is complete at the date of the performance of the services — that the attorney has the right of immediate suit for such claim — and that whenever there commences a right of suit, that moment also the statute of limitations begins to run, and hence, even admitting the suspension of the statute during the existence of the Stay Law, every item of the plaintiffs’ demand was fully barred before the issuing of the process in this case.
    2. Because the plea of the statute of limitations was strengthened by proof of actual payment, as in the case of Williams. Where a levy and sale had been made, as well as the presumptions arising from the various settlements, and moneyed transactions between the parties, since the date of any of the items of the account sued upon, and hence the decree should have been for the defendants.
    3. Because there were two sets of records introduced in evidence, to show some of the services performed by the plaintiffs, one of which was entitled William W. Ward, Assignee, vs. Wm. A. China, and the other Wm. W. Ward 
      vs. Wm. A. China, bearing different dates, (the former being in 1861, and wholly irrelevant to tbe issue, and the latter in 1858,) and as the account served upon the defendant was without date, and as the proof must correspond with the allegation, the items of the demand should have been referred to the record and date of the latter case, which alone was relevant, and corresponds with the account sued upon.
    4. Because in the event that it should be held that an attorney has no right of action against his client for costs and fees, until a return of nulla Iona or non est inventus, the items charged for cannot be referred to the case of Ward, Assignee, vs. China, as there was no evidence that either ft. fa. or ca. sa. had ever issued in said case.
    5. Because, when an attorney on the return of nulla bona to a ft. fa. waives his right of action against the plaintiff for costs, and issues a ca. sa. against the defendant, who being arrested, gives a bond for the prison bounds, with security, and the attorney brings action thereon after forfeiture, and obtains judgment against both principal and sureties, for both the debt and costs, he must exhaust the said parties, or show a return of nulla bona against each, before he can look to the plaintiff for the costs of either the first or second action.
    6. Because the items in the account of costs and fee in the cáse of Ward vs. China, should be referred to the record and date of the case thus entitled, for the reason that no charge has been made for either costs or fee in the case of Ward, Assignee, vs. Thomas China, the latter being the surety on the prison bounds bond,' while the record in this case was introduced in evidence as well as the other records above referred to.
    
      7. Because, if it be Held that the plaintiffs did not have an immediate right of action against the defendant for the costs which were incorporated in the confession of judgment of China to Ward, because Ward had not then received the money, for the same reason the plaintiffs still have no cause of action against the defendant, as there was no proof that the said defendant has ever received one cent in the said case.
    8. Because the decree was otherwise contrary to the law and the evidence.
    Maurice, for the motion,
    cited McDowell vs. Gooclwyn, 2 M. Con. B. 441; Faysoux vs. Prather, 1 N. & McC. 296; Thompson vs. Stevens, 2 N. & McC. 493 ; Teiyler vs. Hunt, 1 McCord, 578; Swift vs. Lanier, 1 Hill, 31; Pugg vs. Summer, 1 McM. 333 ; 2 McC. 269 ; 2 McC. 151; 4 Bich. 619 ; 3 Bur. 438, 158; 2 N & McC. 296; Gorrie vs. Jacobs, Harp. B. 325; Gorrie vs. Fits & Giveñs, 3 McC. 25; Hyams vs. Boyce, 1 McM. 95; Scharloch vs. Gland, 1 Bich. 207; Poole -vs. Gist, 4 McC. 259 ; Treasurers vs. McDowell, 1 Hill, 184 ; A. A. 1791, and 1839, and 1840; Taylor vs. Easterling, 1 Bich. 315; A. A. 1827, 6 Stat. 333; Chit, on Con. 918; Whitehead vs. Lord, 7 Ex. Ch. 691; Hughes vs. Hampten, 2 M. Con. B. 745.
    
      Dozier & Porter, contra.
    
      
      (a) It was admitted that the return was made 5th April, 1858.
    
   The opinion of the Court was delivered by

Wakdlaw, A. J.

As this case.is presented it involves not counsel fees, nor fees under the District Court Acts, (13 Stat. 29, § 46; 389, § 15,) but only the taxed costs of attorneys under previous Acts. An Act of 1839, (11 Stat. 8, 12,) amended in 1840, (11 Stat. 100, 148,) regulated the fees of clerks, sheriffs, and some other officers, bat the fees of attorneys have remained as they were fixed by the Act of 1827, (6 Stat. 332,) and that Act must be construed in pari mataría with the Act of 1791, (5 Stat. 152, 161; Sharlock vs. Oland, 1 Rich. 208,) especially with its fifth section, which requires officers to collect their own fees. Another Act of 1791, (7 Stat. 264, § 4,) authorized attorneys, clerks, and sheriffs to have their costs taxed when a suit has at any stage ceased or determined, and to issue execution for the same against the party from whom they are due. The decisions which have been made under these Acts, show that these taxable fees are not demandable when the services are rendered, but only when the case, to which they relate, has been in some way terminated; (Hyams vs. Boyce, 1 McMul. 95;) that execution may be issued by the officers or either of them, against the party who is liable to pay after the termination of a case before regular entry of judgment by either party, Corrie vs. Jacobs, (Harp. 325;) Corrie vs. Fells, (3 McC. 26,) but in the ordinary case of judgment entered by the plaintiff against the defendant, although the judgment is the termination of the case, Buckle vs. Carter, (6 Rich. 111,) if thereupon execution against the defendant for the benefit of the officers as well as of the plaintiff is issued, as is usual, the plaintiff, even where the defendant’s insolvency has been ascertained, is liable, not to execution, but only to action on his contract for the services rendered to him; and that from the termination of a case the statute of limitations if not arrested by judgment or other means, runs in favor of the party who by such termination became instantly liable to pay the taxable costs. But as the liability of the plaintiff who has entered judgment, and issues execution against the defendant, has been treated as only secondary, that is as a liability to be enforced if the defendant should not pay, the question is now presented concerning the statute of limitations, pleaded by the plaintiff in such a case where he is sued by an officer. If the plaintiff does not use diligence in collecting from the defendant, or otherwise the officers become satisfied that the remedy against the defendant would be unavailing, nothing prohibits them from presenting their demand to the plaintiff’ and upon his failure to pay, suing him. So that where the plaintiff has obtained judgment and has not for four years thereafter sued out execution, the recourse by the officers to him would be barred, revivable by the express promise which would be contained in his subsequent collection from the defendant. But where the plaintiff sues out execution against the defendant, he thereby makes a continuous acknowledgment of his willingness to pay the taxed costs, if the defendant should not; and without gross negligence this acknowledgment will not be determined until the return of nulla bona or non est inventus on the execution against the defendant.

In the case before us, laying aside the question of payment, which has been satisfactorily decided by the Circuit Judge, we find that in the case of Ward vs. S. K. Williams, (which the Judge confounded with another case of Ward vs. A. B. Williams, whence arose some mistake in the report,) the n. e. i. on ca. sa. against the defendant was returned April 5th, 1858; that in the case of Ward vs. W. A. China, nulla bona was returned May 8th, 1858, and that the costs of China vs. Ward, were acknowledged by the written agreement of Ward and China, April, 3d, 1858. So that we may now say the question is, whether the statute of limitations having commenced to run April 3d, 1858, had barred this suit, when it was commenced March 1st, 1867 ; and that is resolved into the question whether the suspension of the statute of limitations, contained in the fifth section of the Stay Law of 21st December, 1861, (13 Stat. 19,) ceased when the Court of Errors in May, 1866, declared the Stay Law unconstitutional in reference to past Contracts, (State vs. Carew, 14 Rich. 498,) or continued until the expiration of tbe time within which by the Act of 1865, (13 Stat. 44,) it was limited. The Act of 1865, the last of the annual continuances of the Act of 1861, continues it “in force until the adjournment of the next regular session of tbe General Assembly,” and that adjournment took place December 21st, 1866. The suspensions which were enacted, if the enactments were valid, lasted just five years.

In the case of Administrators of Simkins vs. Buzzard, (ante p. 158,) decided in the Court of Errors, December, 1867, the question concerning the time when the suspension of the statute of limitations ceased was hinted at, but that case did not require its decision. The case actually decided only that the section of the Act commonly called the Stay Law, which related to the statute of limitations, was effective as to all contracts, whether past or future, notwithstanding that some other parts of the Act were, in reference to past contracts, unconstitutional. The language of Judge Dawkins, pronouncing the opinion of the Court and speaking of the statute of limitations and of the power' of the Legislature over it as an incident of the remedy, is this: “In fact its extension” [or suspension, practically the same] “ gives additional vitality to the contract and furnishes no ground of complaint to debtor or creditor; the debtor, if he wishes to pay can do so, and if the creditor desires to sue, there is nothing in its extension to prevent him.” Again, “there is (in the Act) no distinction made as to the time when the causes of action arose, and they (the Legislature) unquestionably meaDt and intended to embrace all money demands. If not intended to apply to causes of action then existing, the fifth section was unnecessary, and we cannot suppose the 1 egislature would be guilty of the folly of passing an Act suspending the operation of the statute of limitations, if intended to apply only to causes arising thereafter, wben the Act itself was limited in its duration to one year.” The decision of the Court of Errors declared the law; — did not make it; that which it held to be unconstitutional was unconstitutional before, and there would be just as much propriety in saying that, in reference to past contracts, the statute of limitations was never suspended at all by the Act of 1861, as in saying that it was suspended, but the suspension was terminated by a decision of the Court. During the period in which this Act is of force,” the phrase used in the fifth section of the Act of 1861, is equivalent to during the period prescribed for the operation of the Act; but in the strongest sense which can be given to the words of J orce, the Act was of force during the period for which by sucession of re-enactments it was continued, not only as to future contracts, (Barry vs. Iseman, 14 Rich. 129,) but as to a special remedy against an absconding debtor and as to some other matters mentioned therein. We, therefore, hold that the statute of limitations was suspended until the end of the regular session of 1866, December 21st, 1866.

It follows that neither of the items for which the plaintiffs have a decree was barred. The motion is dismissed.

DuNKiN, 0. J., and Lstglis, A. J., concurred.

Motion dismissed.  