Bright, 8 Watts, 125; Shearer v. Brinley, judgment accrues as soon as the judgment 76 Pa. 300. is rendered.

The statutory remedy by motion to revive The demurrer was sustained by the court, a judgment is exclusive.

not a reasonable construction. In fact, the now apply, because by the amendment of language is so plain that construction can 1891 (Laws 1891, pp. 165, 166) a limitanot be resorted to at all. "An action upon tion of six years has been placed upon a moa judgment or decree of any court of the tion to revive. The case of Burns v. ConUnited States or of any state or territory ner, 1 Wash. 6, 23 Pac. 836, has never been within the United States," certainly com- considered by this court as settling this prehends the state of Washington; for it is question; for in Lake v. Steinbach, 5 Wash a state within the United States, and the 659, 32 Pac. 767, which was an action upon judgment is the judgment of a court of a a judgment rendered more than six years state within the United States. The great prior to the commencement of the action, er includes the less, and, under any canon the case was decided upon the ground that of construction known to the law, it would the defendants had been out of the state a seem that a judgment of this state fell with- portion of the time during which the judg in the provisions of the statute. The stat ment was running, and at the time said ute is broad enough to embrace judgments judgment was rendered, and did not return of this state, and the judgments of this to the state under less than six years prior state are in no way excepted from its pro-to the commencement of the action; "and," visions. So that it must be concluded that remarked the court, "this refutes the idea the legislature, in using the language which that the purported new matter set up in the it did, intended to include, not only foreign answer is a defense to this action."-the judgments, but domestic judgments, or in- new matter being the pleading of the fact tended to include, in the language of the that more than six years had expired bestatute, a judgment "of any court of the tween the rendition of the judgment and the United States, or of any state or territory action on the judgment. So it may be seen within the United States." It is contended, that, if the court had viewed the doctrine however, by the appellant, that this court announced in Burns v. Connor as the settled placed another construction upon this stat-law of the state, it would not have been ute in Burns v. Conner, 1 Wash. 6, 23 Pac. necessary to have entered into the discus836; and the language therein used would sion of the other questions involved in the certainly justify this contention. The case, case. In Bignold v. Carr, 24 Wash. 413, 64 however, was decided before the question of Pac. 519, substantially the same questions limitation was reached; the court saying: were raised as in Lake v. Steinbach, 5 "We are of the opinion that the proceed- Wash. 659, 32 Pac. 767. The question having prescribed by statute to revive the lien ing been raised that more than six years of a judgment is not the commencement of had expired between the entry of the judg an action, but only a mode by which to se- ment and the commencement of the action cure the fruits of an action already had and thereon, it was found by this court that the determined between the parties, and that § fact of absence from the state prevented 27 of the Code is not applicable thereto;" the statute from running, and after setciting authorities to sustain the announce- tling that question it was said by the court: ment. The court then, after the cause had "This conclusion renders it unnecessary to been decided, proceeded to say: "We are determine the proposition of whether or not also of the opinion that § 27 of the Code, the six-years' statute of limitations applies limiting to six years the time within which to domestic judgments." But aside from an action may be commenced upon a judg- the fact that the plain language of the statment or decree of any court of the United States, or of any state or territory within the United States, when viewed in connection with chapter 29, does not apply to judgments rendered by the courts of this state or of the late territory." This was purely obiter dictum, and not in any way necessary to the decision of the case, although this question had been raised in the briefs of the contending attorneys. There does not seem to have been much consideration given to this question in that case, and the announcement is made that, when viewed in connection with chapter 29, § 27 did not apply to judgments of this state. But even if the announcement there made was a correct one under the provisions of chapter 29 as it then existed, the legislature afterwards amended chapter 29 by placing a limitation of six years upon the motion to revive a judgment, so that if the idea of the court was that the limitation did not apply because there was no limitation on the revival of the judgment in chapter 29, spoken of, the reasoning would not

ute precludes any other idea, the authority
is overwhelming to the effect that under
similar statutes domestic judgments are in-
cluded. It may be as well to state here
that the cases of Bettman v. Cowley, 19
Wash. 207, 40 L. R. A. 815, 54 Pac. 1134,
and Palmer v. Laberee, 23 Wash. 409, 63
Pac. 216, cited by appellant, do not seem
to us to be relative to the question under
discussion. In those cases, while incident-
ally other propositions may have inter-
vened, the question under discussion was
the right of the revival of judgments under
the statute limiting such rights. In Ore-
gon the rule has been announced that the
statute did not apply to domestic judgments
(Murch v. Moore, 2 Or. 189; Strong v.
Barnhart, 5 Or. 499), and in one or two
other states the same doctrine has been an-
nounced. But these cases are the excep-
tion, and not the rule. In Reay v. Heazel-
ton, 128 Cal. 335, 60 Pac. 977, it was held
that a domestic judgment was embraced
within the language of a statute similar in
all respects to ours. In Haupt v. Burton,

21 Mont. 572, 55 Pac. 110, the supreme | tion. But we think the contention that the court of Montana, in discussing this ques- judgment debtor cannot avail himself of tion, says: "It is argued that § 41, div. the statute of limitations until after the 1, Comp. Stat. of 1887, which provides that time expires in which execution could issue an action upon a judgment of any court cannot be maintained. It is true, there are of the United States or of any state or ter- a few cases which sustain this contention, ritory within the United States, shall be viz., Lee v. Giles, 1 Bail. L. 449, 21 Am. Dec. commenced within six years,' is inapplica- 476, where a few of the old English cases ble to judgments rendered by the courts of are referred to, and Pitzer v. Russel, 4 Or. this state; and we are cited to Pitzer v. 130; also Parks v. Young, 75 Tex. 278, 12 Russel, 4 Or. 129, and Burns v. Conner, S. W. 986, although the supreme court of 1 Wash. 6, 23 Pac. 836, which hold that Texas seemed afterwards, in Stevens v. way. The great weight of authority is Stone, 94 Tex. 415, 60 S. W. 959, to overagainst those decisions, and we believe that, rule the proposition announced in Parks v. in the absence of any exception from the Young, 75 Tex. 278, 12 S. W. 986. The case statute of actions upon judgments of the of Solen v. Virginia & T. R. Co. 15 Nev. 313, courts of this state, they are within the let- which announced the doctrine contended for ter of the Code,"-citing Hummer v. Lam- by the appellant, has been overruled in the phear, 32 Kan. 439, 49 Am. Rep. 491, 4 later case of Mandlebaum v. Gregovich, 24 Pac. 865, Approved in Schuyler County Nev. 154, 50 Pac. 849; and in the South Bank v. Bradbury, 56 Kan. 355, 43 Pac. Carolina case of Lee v. Giles, 1 Bail. L. 254, and Mason v. Cronise, 20 Cal. 217. In 449, 21 Am. Dec. 476, it is stated in a note Schuyler County Bank v. Bradbury, just to the decision that the doctrine announced referred to, it is squarely decided that a in that state could not be sustained by the right of action upon a domestic judgment authorities elsewhere, citing Freeman whereon no execution had issued is barred on Judgments, § 542. So that, outside of by the five-year statute of limitations. In the states of Oregon, Nevada, Texas, and Mason v. Cronise it was held that judgments South Carolina, all of which, excepting Orerecovered in the courts of California were gon, as we have seen, have to a certain exbarred by the lapse of five years from the tent receded from the proposition origintime they were rendered, which was the stat-ally announced on this subject, the decisions ute in that state corresponding to the six year statute in ours. The language of the court in that case is applicable, and we reproduce it here: "The section does not in terms except judgments recovered within the state, but, on the contrary, its language embraces the judgments and decrees of any court of any state or territory within the United States. It would seem, according to the natural import of the words used. that there could be no question as to the application of the sections to domestic judgments." To the same effect are McDonald v. Dickson, 85 N. C. 248, and Rowe v. Blake, 99 Cal. 167, 33 Pac. 864. In conclusion, we think that both reason and authority compel us to hold that domestic judgments are included within the statute.

are substantially uniform that at common law a party has a right of action upon his judgment as soon as it is recovered. It is true that in this state it has been decided that a party has a right to bring a commonlaw action upon a judgment simply because the common law prevails in this state in the absence of statutory enactment; but there has been statutory enactment on the subject of limitations, and, whether the action is brought under the statute or under the common-law right, the statute in relation to limitations equally prevails.

It is urged by appellant, and is stated in some of the cases cited, that there is no necessity for an action upon the judgment as long as the right of execution exists; that the only effect would be to impose addiBut it is contended by the appellant that tional costs and burdens upon the judgment. the statute of limitations does not com- debtor, and create a multiplicity of suits. mence to run on a domestic judgment until But this objection is more fanciful than the expiration of the time during which ex- real, and the judgment debtor will be proecution may issue; that is, after the lapse tected by the ordinary prudence of the judg of five years from its recovery and entry. ment creditor, who will not be likely to inThe statute provides (2 Ballinger's Anno. cur unnecessary expenses for the mere purCodes & Statutes, § 4796) that actions can pose of obtaining judgments against an inonly be commenced within the period here- if the law gives to the judgment creditor solvent debtor. But, however that may be, in prescribed after the cause of action shall the right to bring an action upon his judg have accrued, and it is asserted that at com- ment, that right cannot be taken away, in mon law an execution could issue upon a the absence of any express restriction upon judgment at any time within a year and a the right by any concurrent remedy that day after its entry and that the year and a may be given him. In Hansford v. Van day at common law correspond to our five Auken, 79 Ind. 157, the right of the judg years in which execution may issue. If ment creditor to sue was sustained; the this interpretation of the statute is correct, court saying: "He may enforce its collecthen the judgment in this case is not barred tion by the process of the court in which he by the statute of limitations, for only seven obtained his judgment, or he may, if he years elapsed from the rendition of the elect so to do, use his judgment as an origjudgment to the commencement of the ac- linal cause of action, and bring suit thereon

in the same or some other court of compe- | judgment. He is at liberty to proceed by tent jurisdiction, and prosecute such suit execution to collect the judgment, or instito final judgment. This procedure he may tute a new action on it. Notwithstanding pursue as often as he elects, using the judg- the second suit may be unnecessary, he has ment last obtained as a cause of action on the clear legal right to recover, and the which to obtain the next succeeding judg- courts have no power to prevent him, or ment,"-citing Palmer v. Glover, 73 Ind. impose terms on him for so doing." In 529. See also Smith v. Mumford, 9 Cow. Young v. Cooper, 59 Ill. 121, it was said 26; Hule v. Angel, 20 Johns. 342; Mandle- that the propriety of the above position has baum v. Gregovich, 24 Nev. 154, 50 Pac. never been questioned. In some of the 849,-a case above referred to, where the states it is provided by statute that an aecourt announced the rule that under the tion shall not be maintained upon a judgcommon law the right of action on an un- ment within a limited time, but in the absatisfied judgment was a matter of course, sence of a statute the right exists at any and that it was not necessary for the com- time after the rendition of the judgment. plaint to aver or the record to show that The subject is summed up by Mr. Freeman any other cause than nonpayment existed in his work on Judgments (vol. 2, 4th ed. therefor. In 11 Enc. Pl. & Pr. commencing chap. 17, § 432), where it is said: "In Conat page 1089 it is stated that, "at common necticut, at a very early date, an action on law and by the overwhelming weight of au- a judgment was not sustained, because it thority in this country the right to main- was deemed unnecessary and vexatious, untain an action upon a domestic judgment is less plaintiff succeeded in showing that othnot at all dependent upon the right to is- erwise he could not have the full effect of sue an execution thereon. Thus, an ac- his judgment. This position has since been tion may be maintained upon a dormant abandoned in the same state, and in its judgment, and it may equally well be main place the true rule has been adopted,—that tained upon a judgment which is not dor- no other reason' for bringing the action mant, and upon which execution might is 'need be stated in the declaration than that sue. In support of this text cases are the judgment remains unpaid." The right cited from Alabama, California, Connecti- to the action having been given by statute, cut, Illinois, Indiana, Iowa, Kansas, and there being no statutory restrictions Massachusetts, Michigan, Missouri, New upon the right, and the overwhelming Hampshire, New York, Ohio, Pennsylvania, Tennessee, Vermont, and the United States courts. In Greathouse v. Smith, 4 Ill. 541, the court, in delivering its opinion, said: "No rule of law is better settled than the one that an action of debt is maintainable on a judgment of a court of record. The judgment is a good cause of action, it being, as between the parties, the conclusive evidence of indebtedness. We know of no principle which inhibits the creditor, on a judgment which is in force and unsatisfied, from recovering in an action brought on it, although he may at the time of bringing the suit be entitled to an execution on his 56 L. R. A.

weight of authority being to the effect that the action may be commenced any time after its rendition, we do not feel justified in holding that the statute of limitations upon a domestic judgment does not commence to run until after five years from its rendition, or the expiration of the period in which execution might issue.

The judgment of the Superior Court is affirmed.

Reavis, Ch. J., and Anders, Fullerton, Mount, White, and Hadley, JJ., concur.

ADOUE V. SPENCER.

NEW JERSEY COURT OF ERRORS AND APPEALS.

7.

NOTE.-Burden of proof of husband's debt to | III. c, 2-continued.
wife on account of property received from
her.

proof on the one hand, and presumptions and While the border line between burden of sufficiency of evidence on the other, is sometimes almost indistinguishable, this note is intended to be confined to questions of burden of proof only. Cases with relation to presump

3. Rule placing burden on husband tions have been included only when the facts

and circumstances were such that the detercarried with it inferentially a determination as mination that a particular presumption existed to who had the burden of proof to rebut such

c. Burden as to consideration for trans-presumption; and cases with reference to suffi

ciency of evidence are included only when they go to the question of sufficiency to satisfy or

to satisfy or shift the burden of proof.

as to de- II. In contests between themselves or persons claiming under them.

a. Under the common-law rule. Under the common-law rule, where money married woman the burden of proving that it originally belonged to the separate estate of a ceased to so belong to her separate estate rested with those who claimed adversely under her to owner- husband or otherwise. transfer Ch. Div. 461. Re Flamank, L. R. 40

And where a legacy was given for the sepa