Elias Hall vs. Almira Hall, 8 Vt. 156

The opinion of the court was delivered by Redfield, Chan. We have in this case as the offspring perhaps "of an unhappy marriage, and a necessary divorce and decree of alimony, in such terms as to keep alive the remembrance of the calamity, the pitiful results of almost twenty years litigation, a term more than sufficient to have earned honors and performed the duties of a well spent life. If we can contrive effectually to bury this numerous and rather novel progeny of law suits out of sight, and forever, we cannot fail to perform important service to the parties.

This we hope to do consistent with established principles. The judgment which Elias Hall set out in his bill is admitted to be due. There is also admitted to be- due] Almira Hall a balance of the judgment obtained on the scire facias. The only questions to be here decided^ arise on the claims set forth in Almira’s cross bill. The oratrix here claims the interest, which in an action of debt, she might have recovered on the judgment, which she saw fit to revive by scire facias. It is well settled that on scire facias to revive a judgment no damages can be awarded. The writ claims none.

The objsct of the writ is merely to revive the judgment and no interest can be added to it. Execution upon the judgment, in scire facias must issue for the same sum of the original judgment. At common law, not only could no damages be recovered, but no cost until the statute of 8 and 9, Vil. Ill, c. 11, which provides for costs. — 14 Petersdorff 386. As the debtor had been discharged on habeas■ corpus, no good’ reason is now perceived why the oratrix might not have brought debt upon the judgment. Scire facias is the most common al- Hot the exclusive remedy.

But the judgment having been revived by scire facias, the plaintiff failed of course,- of obtaining execution of the interest which had accrued; and We think thus-lost the claim for interest. It will not be allowed to separate the interest from the debt of which it is a mere incident. The judgment upon the scire facias, so far merged the judgment for alimony, that the portion not covered by the levy was gone. It become a n’ew debt and could never be declared upon as a judgment of any other term than that of the judgment on the scire facias.

We are the more reconciled to this result from the consideration that the original decree was not to have been upon interest, and become an absolute debt at the time it did, only upon the failure of the defendant to comply with a condition which might have been rather his misfortune than his fault; and being in the nature of a penalty it is always in the power of this court to grant positive relief whenever the case is of sufficient magnitude to require interference in that way.

But here the relief is already afforded by the abandonment of the claim for interest expressed in bringing scire facias, instead of debt to revive the decree of alimony. This claim for interest on that portion of the decree of alimony included in the judgment on the scire facias is disallowed. The other claim set up by the oratrix in her cross bill is the sum1 covered by the levy which was declared void by this court at the1 January term 1831. — Hall vs. Hall, 1 Vt. 304.

This sum of $144,75 and the interest is most manifestly due in equity, unless the right of recovery is barred by the statute of limitations or merged-in the judgment on the scire facias. But as at the time of bring--ing the scire facias, this sum now in controversy, appeared satisfied of record by a levy acquiesced in by both parties, and as it was expressly excepted from the judgment on the scire facias, we think it was not affected by that judgment.

Had all the judgment except the amount covered by this levy been paid, it cannot be pretended that this could have effected the right to pursue this after the levy had proved ineffectual. Nor can we perceive why reviving that balance on a scire facias,- which became necessary after the discharge,- should have this effect. It is true that the operation of the judgment on scire facias was to subdivide an entire claim.

But this is a result which must always follow, when a judgment is partly satisfied by a levy, which afterwards proves defective, as to have been upon property, not the debtor’s, if it should have become necessary, during the continuance of this levy to revive the balance of the judgment by scire facias or debt. And as this- is a necessary result we are more satisfied with the subdivision of an entire claim, than the denial of justice upon a portion clearly due. But it is further urged that the claim is barred by the statute of limitation, and if so, it must be revived in equity. — Stanniford vs. Tuttle, 4 Vt.

R. 83. But we think that during the continuance of the levy, a satisfaction appearing of record and both parties acquiescing in the legality of the levy, the statute of limitation would not run. No presumption of payment could possibly arise during this time. And the statutes of limitation all go upon the presumption of payment or that one who has a legal claim will not lie by and suffer it to become old, and not enforce it. And whatever fully and effectually rebuts this presumption, removes the operation of the statute.

These statutes like all other statutes are so construed asjo advance the remedy and prevent injustice. A strict and literal construction has not been adhered to. Almost all those cases which courts have held not to come within the intent, have still been within the latter of the statute. A judgment of more than eight years standing, but which the debtor had promised to pay within eight years, would still be barred by the literal construction of the statute. But in the case of Gailer vs.

Grinol, 2 Aik. 349, such new promise was held to revive the cause of action, to put the judgment upon the same ground as to the statute of limitation, as if rendered at the date of the new promise”; and this not because the new promise gave a new cause of action, but because it effectually rebutted the presumption of payment resulting from lapse of time. If it were to be treated as a new cause of action the remedy should be as-sumpsit and the statute bar siso years instead of eight, as held by Mr. Justice Hutchinson, in the case of Gailer vs. Grinol.

For the same reason it was held in the case of Ferris vs.Barlow, Frank, Co. Jan. T. 1836, that when the defendant was committed to jail, the statute of limitation would not bar the judgment during the time of his confinement there. For this effectually rebuts all presumption of payment. And still by the terms of the statute of limitation, the bar would attach in this case as much as any other.

And after the discharge of the debtor from jail even by taking the poor debtor’s oath, the statute of limitation will revive, and after the lapse of eight years from the discharge will become a bar, as was held in the case last referred to. In the case of Baxter vs. Tucker, 1 D. Chip. R. 353, it was decided that the statute of limitation did not run against a scire facias, brought to revive a judgment, when the execution had been levied upon property not the debtors. And as was held in that case, so here a satisfaction appearing of record, the statute of limitation is satisfactorily answered.

It may be said the plaintiff’s cause of action was not suspended by this levy. But we think that although this was not the case, yet so long as the levy appeared of record as a satisfaction of the sum now in controversy and both parties acquiesced therein, it so far rebuts all presumption of payment, that the statute ought not to operate as a bar. If it were not so decided the creditor in case of a defective levy, under the former law, might lie by until the statute had barred the judgment, and then recover the land and rents, and thus effectually deprive the creditor of all redress.

And this may be true in the present case. We should be reluctant to adopt a principle so susceptible of being made the instrument of abuse. And it will be perceived that, if the statute is held to operate as a bar in this case, so must it in all cases, where the levy is in fact defective, although it be in some matter not apparent on the record as that one of the appraisers was interested in the levy or within the prohibited degrees of affinity or consanguinity.

And when this defect is known to the debtor and not known to the creditor, or even fraudulently kept out of sight, still the rule of decision must be the same. We are satisfied that in none of the cases stated should the statute operate as a bar. The result is that the $144,75 and interest from the date of the decree is allowed to the oratrix, and is first to be set off against the judgment set up in the orator’s bill and the balance of that judgment is to be offset according to the prayer of the bill and no costs allowed to either party.