33 Mass. 383 | Mass. | 1835
delivered the opinion of the Court. This action is debt ; which form was no doubt adopted, to enable the plaintiff to give in evidence the former judgment, or the demand on which it was founded, as the one or the other should be determined to be admissible, and both were offered in evidence. The judge at nisi prius determined that the former judgment was vacated and so was not admissible, and it followed as a necessary legal consequence, that the original demand was not merged, and it was given in evidence, and the plaintiff had a verdict.
It is very obvious, that this action, commenced in 1831 upon a simple contract debt, contracted in 1817, would be barred by the statute of limitations, were there no exception; but the Court are all of opinion, that it is within the saving clause of the proviso. St. 1786, c. 52, § 1. This proviso is, that if upon any of the said actions, judgment be given for the plaintiff, and the same be reversed by reason of error, or a verdict pass for the plaintiff, and for matter alleged in arrest of judgment the judgment be given against the plaintiff, in all such cases, the plaintiff may commence a new action within a year after such judgment reversed, or judgment given against the plaintiff.
This is a remedial statute, both in its enacting and qualifying clauses, and should have such construction, as will best carry into effect the intent of the legislature. Middleton v. Forbes, Willes, 259, note. This statute is founded on the presumption, that if a creditor has permitted his debt to remain a certain length of time without any attempt to enforce it, or to revive and perpetuate the evidence of it, it is paid, or otherwise discharged. This general presumption arising out of the nature of the fact itself, for the convenience of having a certain and practical rule, is limited to a certain fixed time, and after such term, made a positive bar, by force of the statute. But this presumption does not arise, if the creditor resorts to legal diligence to recover his debt within the time limited ; and
Now although in the present case, the former judgment was not reversed on a writ of error technically, or on arrest of judgment, yet it was so in effect by being declared null and void, in a course of judicial proceeding, between the same parties, which effectually prevented the plaintiff from having any benefit from his former judgment. It is a case, where a judgment for a plaintiff is not technically, but in effect, reversed by reason of error, being declared judicially erroneous, and as such void and held for nought.
It may test the correctness of this view to suggest, that if the effect of the plea to the scire facias was not to reverse and annul the former judgment, there being no other judgment or judicial decision affecting it, it is not reversed at all, it is still in force, and being a specialty not affected by the six years’ limitation, is good evidence to support this action, and ought to have been received. But it seems plain, that if the plaintiff could not avail himself of his judgment to maintain his scire facias, he cannot avail himself of it to support his action of debt.
Judgment on the verdict.
See Revised Stat. c. 120, §11.
