Samuel Allen, Jr. v. John P. Warren, 9 Vt. 203

The opinion of the court was delivered by Collamer, J. The statute of 1821, (Com. laws, p. 139 ) ■increased the jurisdiction of justices of the peace from fifty-three dollars to one hundred. This was considered a relief to debtors, in saving them cost. But as they had been previously subject to suit, on demands above fifty-three dollars, to the County Court, whose sessions wore only twice in each year, and they could procure delay by reviewing their causes to the next term, when they came to be sued on such demands before a justice of the peace, they would be subject to execution, without delay.

To relieve them, in some measure, from this increased dispatch, it was devised to have executions with a longer life. It was then, for the first time, that an execution for one hundred and twenty days was provided for. From this view, the mind is naturally led to expect, that the new execution would be provided only for the cases, that were now newly included in the justice jurisdiction ; granting this delay to those who had delay, in another way, before.

In the third section, it is. provided, “ that whenever a judgment shall be rendered for a larger sum “than fifty-three dollars, in pursuance of the provisions of this “ act, the execution shall be made returnable within one hun- “ dred and twenty days ; any former act to the contrary not- “ withstanding.” The judgment, then, must not only exceed fifty-three dollars, but it must have been rendered pursuant to the provisions of this act, increasing the jurisdiction above fifty-three dollars. The judgment, in this case, including costs, was over fifty-three dollars, but the debt or damages was under that sum.

It was a judgment rendered in an action on judgment. Was it in pursuance of this act, or was the judgment such a one, as the justice might have rendered, without this act ? We think he might have rendered such a judgment, without this act, and, therefore, the execution might issue for sixty day's. But a further examination of this statute seems more clearly to settle this question.

By the previous laws, where the body was taken on mesne process, and bail procured, in order to hold the bail, execution must be given out in thirty days, and delivered to the proper officer, and a return of non est inventus made, within sixty days from the judgment. To leave this law in force, would, in a great measure, frustrate the delay, intended by the one hundred and twenty day executions. In making provision for this, it became again necessary to speak of, and more distinctly define, in what cases such executions should issue, how they should be executed, and the effect on bail.

All this is done in the fourth section. The last sentence, in that section, is as follows : “ and no bail shall be discharged, because a non est inventus return is made in sixty days, in any case, where final judgment is rendered by a justice of the peace, and where the judgment shall exceed the sum of fifty-three dollars, in debt or damages.” This renders it perfectly certain, that it was in those cases only, where the debt or damages, recovered, exceed fifty-three dollars, was the execution to run one hundred and twenty days. Judgment Affirmed.