
    Succession of Hardin L. Tilghman.—Thomas O. Tilghman, Curator, Appellant.
    An action on a judgment obtained in another State is prescribed only by the lapse of twenty years, where the judgment creditor resides out of this State. C. C. 3508.
    The statute of the State of Alabama of the 10th of January, 1835, which provides (s. 3) “that when any execution shall have been issued on any judgment or decree, &e., within a year and a day from the rendition of any such judgment or decree, which shall not have been returned satisfied in full, such judgment or decree shall not afterwards be presumed to be paid or satisfied, without payment or satisfaction be entered on the records of the court, &e., unless no execution shall be issued on such judgment or decree for the space of ten years,” establishes a legal presumption of payment in favor of the debtor, when the creditor, after suing out, within a year and a day from the date of the judgment, an execution which is not returned satisfied in full, remains for ten years without taking out another execution. It does not absolutely bar the right of action on such judgment, but throws on the creditor who seeks to recover on it, the burden of proving that it has not been satisfied.
    The effect of a legal presumption is, to relieve the party in whose favor it exists from the necessity of making any proof; but this presumption may be destroyed by proof that the fact is otherwise than the law presumes. Aliter, as to presumptionsyzzns et dejare, against which no proof can be admitted.
    A judgment rendered in another State, properly authenticated, must have the same force and effect here as in the State in which it was rendered ; but it can have no greater effect. Thus, where by the laws of the State in which a judgment was rendered, it will be presumed to have been paid in case no execution be issued thereon within a certain time, such presumption will attach to the judgment, and exist in favor of the debtor in au action on the judgment in this State.
    "Where a statute declares that a judgment shall be presumed to have been paid, in case no execution be sued out within a certain period after it was rendered, the period must be calculated from the date of the judgment, though anterior to the passage of the act, and though sufficient time have not elapsed since its enactment to establish the presumption if calculated from that time.
    Appeal from the Court of Probates of New Orleans, Bermudez, J. This was an action by Boggs, Cochran & Co. against the administrator of the succession of Hardin L. Tilghman, on a judgment which the petitioners had recovered against the deceased in the State of Alabama, on the 4th of October, 1824. The curator of Tilghman’s succession pleaded a general denial, averring that if any such judgment as that alleged ever existed, it had been satisfied. He also pleaded prescription. The record shows that aJi. fa. was issued on the judgment in Alabama, on which a return of nulla bona was made on the 30th of March following. It was admitted that no ca. sa. had been issued on the judgment, nor any proceedings had against the bail. It was further admitted that Tilghman had resided in New Orleans since 1827, and that, since 1832, he had been reputed to be wealthy, being the owner of lands, &c.; and that he died, in 1839, leaving property more than sufficient to pay all his debts. The printed statutes of Alabama were admitted in evidence. There was a judgment below in favor of the petitioners, from which the curator of the succession has appealed.
    
      Anderson and Elwyn, for the petitioners.
    The statute of Alabama, of 1835, if construed to be a limitation of time after which the judgment could not be enforced, is not obligatory on the courts of this State. Prescription is a plea to the remedy, not affecting the rights of the parties to the contract or judgment. Elmore v. Cohen, 13 Peters, 327. The action on the judgment is not prescribed by the laws of this State. But the statute of Alabama does not bar a right of action on the judgment even in that State; it only fixes the period within which a scire facias is a pre-requisite to suing out an execution. This will be evident from considering how the common law stood before the statute.
    
      By the common law, in real actions, the recovery being a thing certain, the mode of executing a judgment was entered on the roll; and as the absence of such entry was evidence that the judgment was unsatisfied, the demandant, had he delayed his execution for a year and a day, might thereafter, at any time, have a scire facias on the defendant to show cause why he .should not have his execution. Not so, however, in personal actions. In such case, the identity of the recovery not being ascertained, no entry was made on the roll of the mode of executing the judgment, and the roll, therefore, did not denote whether the judgment was executed or not. Hence, if the defendant delayed a year and a day, he could not have a scire facias, and the benefit of his judgment was in some measure lost to him. But, even by common law, he was not, after such delay, entirely without remedy. He might bring an action of debt on his judgment, and thus repel the inference of delay, by giving the defendant an opportunity of showing in that action whether he had paid it, or whether it had been released. For remedy of this inconvenience the statute of Westminster 2d, 13 Edw. I. was passed, whereby it is enacted, that “ all things whatsoever enrolled to which the King’s Court may lawfully give effect, from henceforth shall have such force, that hereafter it shall not be necessary to implead upon them; but when the plaintiff comes to the King’s Court, if the thing enrolled be recent, that is to say within the year, he shall forthwith have execution of the same. And if perchance it be made of a longer time past, the Sheriff shall be commanded that he make known to the party of whom the complaint is made, that he be before the justices at a certain day to show if he has any thing to say, why such matters enrolled ought not to have execution.” This statute gave a scire facias on judgments in personal actions, and, as is observed'by Tidd, (2 vol. p. 1002, of his Practice,) did not take from the plaintiff an action of debt on his judgment, if he thought proper to assert his right to it.
    Thus stood the common law, modified by a statute of a date almost coeval with the origin of its customs ; and thus it stood at the time the Legislature of Alabama enacted the statute in question.
    That State, it will be remembered, had like some of the States, by its constitution declared the common law to be the foundation of its jurisprudence; but, unlike others, the constitution of that State in adopting the common law excludes the statutory enactment of Westminster 2d. Hence, as many of the ancient-statutes wefe declaratory of the common law, and not creative of a new rule or one afore time unknown, it was long a question of doubt concerning certain principles, whether they were of common law or statutory growth. The statute before us exhibits^ difficulty of this kind. “ Whereas,” says the statute, “ doubts have been entertained whether a scire facias can issue, after the lapse of a year and a day, <fcc., no execution having issued within that time, for remedy be it enacted, &c.” It proceeds to give the rule as laid down in the English statute, and also to enact, that where the judgment has lain dormant without execution for ten years, an execution cannot issue thereon without first issuing a scire facias.
    
    But may not an action of debt be brought in Alabama, or elsewhere, on this judgment, notwithstanding this statute ? The statute, like that in England, only intended to regulate the right to an execution, and directed that after the lapse of a certain period of time, the plaintiff should not have it, without a scire facias, in order that the defendant might have an opportunity of showing payment or a release. But it was not intended to take away the action of debt, in which the defendant might make such defence as well as if a scire facias had issued.
    
      C. M. Jones, for the appellant.
    The burden of proving that the judgment had been satisfied was not on the debtor. It is presumed by law to have been paid. 1 Campbell, 217. 2 Washington, 323. Aikin’s Digest of the Laws of Alabama, p. 621.
    
      
      
         This act was passed on the 10th of January, 1835. It is in these words :
      
        An act to authorize the issuing of executions certain cases, and for other purposes.
      Sect. 1. Upon the rendition of any judgment in any court of record in this State, it shall be lawful for the judge of said court, in term time, to order the clerk thereof to issue execution immediately upon the affidavit of the plaintiff, or his, or her agent or attorney, that the defendant is about to remove his or her effects, beyond the jurisdiction of the court, or that the plaintiff will be in danger of loosing his or her demand by further delay.
      Sect. 2. The issuance of execution in such case, shall not deprive the defendant or defendants of tiie right of appeal, writ of error, new trial, motion in arrest of judgment, or any other remedy to which by law, he or they would otherwise be entitled.
      Sect. 3. When any execution shall have been issued on any judgment or decree of the Supreme Court, or any circuit court, or county court within this State, or upon any judgment of a justice of the peace, within a year and a day after the rendition of any such judgment, or the making of any such decree, which shall' not have been returned satisfied in full, it shall be lawful, at any time thereafter, to issue execution on any such judgment or decree, without suing out any scire facias, or other process to revive the same. And when an execution shall have been issued, or sued out on any such judgment or decree, within a year and a day from the rendition of any such judgment, or the making of any such decree, which shall not have been returned satisfied in full, such judgment or decree shall not afterwards, be presumed to be paid or satisfied, without payment or satisfaction be entered on the record of the court in which such judgment or decree shall have been rendered or made ; or in the case of a judgment of a justice of the peace, on the docket in which such judgment shall have been made, or on the execution issued on such judgment or decree, unless no execution shall be issued on any such judgment or decree for the space of ten years.
      Sect. 4. And whereas doubts have arisen whether a scire facias would lie on a judgment where execution had not issued within the year and day ; for remedy whereof, Be it further enacted, That on all judgments of record, where execution has not been issued within a year and a day, it shall be lawful for the plaintiff in any such judgment, to have a scire facias against the defendant, commanding him to appear at a regular term of the court in which such judgment is of record, and show cause, if any he or she have, why the plaintiff shall not have execution of his or her said judgment.
    
   Morphy, J.

This suit was brought on the 27th of November, 1839, against the estate of the late Hardin L. Tilghman,, on a judgment obtained by Boggs, Cochran & Co., against the deceased, and one John H. Cornish, in Lauderdale county, Alabama, on the 4th of October, 1824. The defence set up by the curator of the estate is prescription, and payment or satisfaction of the judgment sued on. The record shows, that a few days after the rendition of this judgment, an execution was sued out, on which a return of nulla bona was made, op the 30th of March, 1825, and that since that time no execution has been issued on it, nor any other step taken to enforce its payment; that, in 1827, Hardin L. Tilghman came to this State where he settled ; and that he died in this city, on the 7th of March, 1839, possessed of property to a considerable amount.

We are of opinion that the plea of prescription cannot be sustained. By reason of the absence of Boggs, Cochran <fc Co. from this State, sufficient time has not elapsed since the return of the execution in Alabama, to bar the action on the judgment. Civ. Code, art. 3508. As to that of payment, the curator has invoked a statute of Alabama given in evidence below. The third section of that statute provides : That when any execution shall have been issued on any judgment or decree of the Supreme Court, &c., within a year and day after the rendition of any such judgment, or the making of any such decree, which shall not have been returned satisfied in full, it shall and may be lawful, at any time thereafter, to issue execution on any such judgment or decree, without suing out any scire facias or other process to revive the same; and when an execution shall have been issued or sued out on any such judgment or decree, within a year and a day from the rendition of any such judgment, or the making of any such decree, which shall not have been returned satisfied in full, such judgment or decree shall not afterwards be presumed to be paid or satisfied, without payment or satisfaction be entered on the record of the court in which such judgment or decree shall have been rendered or made, &c., unless no execution shall be issued on such judgment or decree for the space of ten years, any law, usage, or custom to the contrary notwithstanding.” Aikin’s Alabama Digest, p. 621, § 3.

We do not consider this law as absolutely barring the right of action on the judgment, either in Alabama or in Louisiana; but it clearly establishes a legal presumption of payment or satisfaction in favor of the debtor, when the creditor, after suing out within a year and a day from the rendition of the judgment, an execution which is not returned satisfied in full, remains for the space of ten years, without suing out an execution on such judgment. The burden of proving that the judgment has not been satisfied is, after the space of ten years, thrown on the creditor, who seeks to recover on it by an action of debt. This section is materially different from the following one in the same law, which provides, that when an execution has not been issued within a year and a day, the plaintiff can have a scire facias against the defendant to show cause why he should not have execution of his judgment. Ib. 4th sec. p. 622. In the latter case, the burden of proof is clearly on the debtor, who must show payment, release, or some other mode of satisfaction; while in the former, the law raises such a presumption of payment from the fact of the judgment having been suffered to remain dormant for the space of ten years, that the debtor, when sued, may rest his defence on such presumption, until it be rebutted by proof to the contrary. If the intention had been that, in both cases, the plaintiff should be allowed a scire facias calling, on the defendant to show cause why execution should not be issued, the fourth section of the law would have so declared ; but it seems to have been passed to remove doubts which existed as to the creditor’s right to a scire facias, even in the case where no execution had issued within the year and day after the rendition of the judgment. See preamble to the 4th section. The effect of a legal presumption is, to relieve the party in whose favor it exists from the necessity of making any proof; but this presumption may be destroyed by proof that the fact is otherwise than the law presumes it tobe. It is different with regard to presumptions juris et de jure ; they establish so completely the fact presumed, that no proof to the contrary can be admitted. If the judgment sued on is saddled in Alabama'with a legal presumption of payment, this presumption attaches to and accompanies it here, when it is made the basis of a suit. The constitution of the United States, art. 4, sec. 1, declares, that “full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State.” From this clause of the constitution, and the act of Congress passed in pursuance of it, we understand that judgments from other States, properly authenticated, must have in this State the same effect which they would have in the States in which they were rendered ; but surely they can have no other or greater force or effect. V7e have looked in vain into the record for any acknowledgment by the obligor, or any other proof tending to destroy the presumption of payment created by the laws of Alabama. Until this presumption is rebutted, the judgment sued on must be held to have been paid or satisfied, in the same manner as if payment or satisfaction had been entered on the record of the court which- rendered it.

It is, therefore, ordered, that the judgment of the Court of Probates be reversed, and that ours be for the appellant, as in a case of nonsuit; the appellees to pay the costs in both courts 
      
      
        Anderson, for a re-bearing. The- statute of Alabama is entitled, “ An act to authorize the-issuance of executions, and for other purposes.” It was passed in the year 1835, nearly ten years after the rendition of the judgment sued on. The third and fourth sections should be taken together. They prescribe the following rules : 1st. A plaintiff may have execution within the year, of his own mere motion. 2d. He may, if an execution be returned unsatisfied, have an alias execution at any time within ten years, of his own mere motion; hut if more than ten years shall elapse, then he may have it by issuing a scire facias. 3d. If he do not sue out execution within the year, he may, nevertheless, have execution at any time by scire facias. It applies exclusively to- the right of execution, requiring the preliminary proceeding by sci) e facias where no execution had been issued within the year, and where an execution had been issued and no alias had followed for the space-of ten years.
      By the common law, or rather by the statute of Edward I. if no execution issued -within the year, there was a presumption of payment; but this presumption extended no farther, than to require the plaintiff to give the defendant an opportunity of showing that he had paid ; and therefore, he was required to issue a scire facias, or commence an action of debt on his judgment, which he might do. 2 Tidd’s Pr. 1002.
      When the scire facias issued or an issue was made in the action of debt, the plaintiff was required only to show the existence of his judgment. He was not called on to repel the presumption of payment. That presumption had done its office, when it secured to the defendant the right of showing that he had paid the debt contrary to what the record avouched. This is obvious from the nature of a scire facias, which is a writ commanding the Sheriff to make known to the defendant, that there exists against him a debt of record, and that he show cause, if he can, why an execution should not issue thereon. So, if an action of' debt were commenced, the plaintiff was bound to show his judgment, and nothing more. After the year, no execution having issued, there was a presumption of payment ; but the force and effect of it was confined to the right of execution. Suppose an action of debt, after the year, no execution having issued, can it'be believed that anything more than the record evidence of the debt, would be necessary to his right to recovery ? And yet the presumption of payment attaches immediately after the year when no execution has issued, as it does immediately after ten years ivhen an execution has once issued and no further proceedings have been taken for that space of time.
      Had this case then been tried in the State of Alabama, the record in the suit would have entitled the plaintiff to recover without any further evidence, although the presumption of payment would have taken from him the right to have an execution, of his own mere motion.
      This is the construction given to this statute in Alabama. But whatever 'construction may be given to it, a court of this State, affording a remedy according to the law of this State, can give no weight to a statute of Alabama prescribing a rule of procedure and nothing else. The opinion pronounced in this case, -overrules all those decisions which affirm that -the law of the forum governs the remedy, and that the course of procedure must be according to that law.
      
      But suppose the statute to create a presumption of payment applicable to the •debt for all purposes, what, in principle, does it do more than a statute of limitations ? The former, it is said, prescribes an arbitrary relation between time and payment, which may he rebutted ; the latter prescribes the same relationship, which may not be rebutted. They are identical in principle, and differ only in effect, the one being a presumption de facto, the other de jure. If our courts will not govern their remedies by a foreign statute of limitations, is there any reason why they should govern them by a foreign statute, founded on a principle entirely similar ?
      Considering the Alabama statute as creating a presumption, it must be considered as directory to the courts of that State, to take for true, that which, without the statute, could not be considered as judicially established. Is such a law one that we can recognize ? Is it a law that can operate extra-territorially ? The question cannet admit of doubt. The law of the forum governs. Suppose a question of survivorship to arise in our courts, between litigants residing in another State. Suppose that by the law of their domicil, a person of forty was presumed to survive a person of sixteen, when both had been lost at sea; and that by our law tito presumption was directly the reverse. Gau there be any doubt, that in such a case our courts would be governed by the presumptions created by our law, and not by the law of the domicil of the litigants? The common law requires only one witness to establish a fact — the eivil law requires more. Our courts would not adopt a different mode or degree of proof according as the contract arose here, or in a common law State. By our law a child cannot testify for a parent. Would our eourts receive such evidence, if it were shown that the contract originated in a common law State, where the child would certainly be a competent witness 1 “ There are many instances,” says Sir William Grant, “ in which principles of law have been adopted from the Civilians by our English courts of justice, but none that I know of, in which they have adopted pre sumptions of fact, from the rules af the civil law.” Judge Story says, (Conflict of Laws, 526,) “ it is a general truth, that the admission of evidence, and ruies of evidence, are matters of procedure, and are therefore, to be governed by the laws of the country where the court sits.” Lord Brougham in the case of Don v. Lepmann, says “ Whether payment is to be presumed, or not, depends on the law of the country in which the law is set-in motion to enforce the agreement; and so must all questions of the admissibility of evidence; and that clearly brings us home to the statute of limitations.”
      The statute in question was passed in 1835, and the judgment sued on was obtained in 1824. This suit was commenced about four years after the statute was passed in Alabama. Now if the statute be considered as affecting the judgment, it would be giving it a retroactive force, for the judgment was prior to the law ahout ten years. Considered as a rule of evidence binding on the courts of Alabama, it would not have defeated the plaintiff’s action in that State. The presumption of payment arises from a silence of ten years. This must mean ten years after the act passed. Wow this suit was commenced within four years after the enactment of that law. But there remains a question of much greater importance to be discussed. The court say, that this statute was permitted to operate on the case, because the constitution and laws of the United States required them so to decide ; that this constitution and these laws are paramount, and onr courts are not at liberty to disregard their requirements. The several States of this Union are, sub modo, sovereign and independent. When the general government acts, it acts as sovereign ; and and whatever it acts upon, whether states or individuals, it must needs act upon them assubjects. But the states where they act, do also act in asovereign capacity, and as to all powers retained are as before the constitution. That instrument did not change the nature of their power, but took certain interests out of the scope of its operation. The Legislature therefore, of one State is as independent of the Legislature of every other, as each is of the Legislature of France or England. There is no clause in the constitution that gives any force and effect to the laws of one State within the territory of another — the doctrine asserted for the first time in the opinion delivered by the court in this case. A moment’s reflection will show what important results flow from it. If Congress may prescribe the force and effect that the laws of one State may have in every other, then our legislation in all cases may become subservient to the legislation of some other State with the concurrence of the Congress of the United States. The court, no doubt, had in view the first section of the fourth article of the constitution, and the act of Congress of 26 May, 1790, made in pursuance thereof. That section declares, “ that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State ; and the Congress may by general law prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” The act of 1790 after prescribing the mode of authentication, declares the force and effect of judgments and judicial proceedings, but does not declare the effect of legislative acts. If, therefore, the clause in the constitution giving the power to declare the force and effect applies to legislative acts, it is quite certain that Congress has not exercised the right, for the act of 1790, and the supplemental act of 1826, do not pretend to declare that the legislative acts of one State shall have any force, as laws, in any other State.
      But that clause in the constitution was never intended to confer such a power. It appears by the-jouinals of the convention, that the, amended report of this article read thus : “ And the effect, which judgments obtained in one State shall have in another;” that this clause was stricken out, and the words “the effect there, of,” werC-inserted. The clause as thus amended, passed without a division. It would seem,-therefore, that the words were supposed to have an identical meaning.
      
        Re-hearing refused.
      
     