Day v. Lamb

7 Vt. 426 | Vt. | 1835

The opinion of the court was delivered by

Williams, Ch. J.

In this action of debt on judgment to which the statute of limitations is plead, several questions arose on the trial. The first one, to which our attention has been called is, at what time a judgment is considered as rendered, whether on the first or last day of the term; for if this judgment is to be considered as of the first day of the term in which it was rendered, the statute of limitations had run thereon. I am not aware of any established principles of common law applicable to our practice, which determine this question. In England for most purposes a judgment is considered as rendered on the first day of the term. For others it has effect only from the day when signed. Very probable we might adopt the doctrine of relation, where a party died after the commencement of the term and after verdict. It was formerly considered as an unsettled question in this state when a judgment was rendered for any purpose. By some it was considered, as in all cases rendered., as of the first day of the term. Hence, where the court sat four weeks, as they sometimes did, it left but a short . , ,*i 11 time to charge either bail on mesne process or property attached. By others it was considered as of the last day, and the clerks in some counties were in the habit of making an entry accordingly. This was probable the better opinion. The statute of 1804 put an end to these doubts, so far as respects charging bail or property attached. This statute, however, was rather explanatory, than establishing any new principle. As it respects the statute of limitations, it is highly proper to consider the last day of the term as the time when judgment is entered. Until that time the judgment is not perfect. It is subject to appeal or review, a motion in arrest, or a motion for new trial; and no action of debt or scire facias on judgment can be maintained until after the rising of the court. In the case of Hoar vs. Jail Commissioners, 2 Vt. Rep. 402, it was stated by the judge who delivered the opinion of the court, that judgments here were considered as entered on the last day of the term, and the cases in Massachusetts are to that effect.

The next question is, when shall a suit be said to be commenced for the purpose of avoiding the statute of limitation. The words in the statute are, in every case except one, “ the action shall be commenced and sued.” As to writs of error, the words are, be “ commenced and duly served.” There is no doubt but that the time when a writ actually issues is to be considered the commencement of the suit. The evidence of the time when the writ issues is usually the date. If a different rule prevails in Connecticut (and we learn that the time of service is there considered as the time to which the computation is made, in view of the operation of the statute of limitation) it probably rises from the phraseology of their statute. In this state the decisions have been that the time of taking out the writ is the commencement of the suit.—Allen vs. Mann, 1 D. Chipman, 94. With respect to delivering the writ to an officer for service, all that is necessary is, that it should be delivered in season to be served and returned to the court to which it is made returnable. If the writ is abandoned, or if the writ is not made with an intention to have the same served or be pursued, it is no commencement of a suit. We have no alias or pluries writ in the commencement of a suit in this state; but if a writ is not served no suit is commenced by the issuing of the same. But we consider our statute and the decisions thereon are decisive of the question, that the issuing of the writ when the same is pursued is the commencement of a suit, and is the time to which the computation is to be made to ascertain whether the statute of limitation lias run on any demand. There is ano'ther question is this case on ... which I have more doubts, and in which I yield to the opinion oi my brethren as probably the better opinion. The only evidence put in on the trial to show the commencement of this suit was the writ itself; but no evidence was given to show that it issued when it bore date. When we consider the manner in which our writs are made out, — dated frequently some time before they are signed, and so easily antedated, — I had doubts whether the plaintiff ought not to be required to show, by some other evidence, the time when the writ was actually issued. But from tne case of Johnson vs. Farwell, 7 Greenleaf, 370, we learn that in Maine the date of the writ is considered as the true time when the action is brought. In the case of Johnson and Smith, 2 Burr, 950, the whole of the reasoning of Lord Mansfield is to show that the date is not conclusive, implying that it is prima facie. And in relation to writings, generally the date is considered as prima facie evidence that they were executed at the time they purport to bear date. From these considerations, I the more readily yield to the opinion of my brethren; and concur wdth them in deciding that the date of a writ must be considered prima facie, as the time when the writ issued, or at least, as some evidence of that fact. A defendant, however, must have every advantage of rebutting this presumption or this evidence by examining any witnesses in relation to the time, and by rendering it doubtful whether the writ was antedated or not, throw the burden of proof on the plaintiff, to show the true time when the writ actually issued. The result is, that the judgment of the county court is affirmed.