61 Md. 426 | Md. | 1884
delivered the opinion of the Court.
These appeals are from orders quashing writs of scire Jadas. It appears from the records that the appellant, Lambson, on the 18th of October, 1869, recovered in the Circuit Court for Kent County three judgments, two against Jeremiah N. Moffett, and one against Richard F. Moffett. On the 3rd. of February, 1810, all of them were
The question presented involves the construction of the Act of 1874, ch. 320, as to its effect upon writs of scire facias, and this requires a brief notice of antecedent legislation upon the same subject. But in this we need go no further back in our statutes than the Code adopted iu 1860. By the laws then in force and codified in sections 16 and 17 of Article 29, it was provided (hy section 16)
“ 16. On all judgments rendered in any Court of law, an execution or attachment may issue at any time within twelve years from the date of such judgment, and if
While this Act manifestly repeals section 16 as amended by the Act of 1862, it does not, in terms, repeal section 17 as so amended, and it has been argued there is no repeal of this latter section by implication, and that it is still in force. But in the view we take of the subject, it becomes unnecessary to express any opinion upon this question, or upon the further one (which has also been argued) that the Act of 1874 is not retroactive and, therefore, has no effect upon judgments recovered before its passage.
This Act, like that of 1862 and the original sections of the Code, does not profess to deal directly with writs of scire facias, or the practice in reference thereto. It undoubtedly enlarges the period that had been fixed by antecedent laws, within which an execution may be issued on a judgment without reviving it by scire facias, but it does not, in terms, forbid the issuing of such writ, or declare it inoperative and void if issued within that period. The argument is that as the statute has made the writ no longer necessary (unless there has been a change of parties by death or marriage) for the period of twelve years, it has, therefore, talcen away the right to issue it at any time within that period for any cause, or for any purpose whatever. Now the period of twelve years is also the statutory period of limitations as to judgments, (Oode, Art. 57, sec. 3,) and the effect, therefore, of the construction contended for, would be to prevent the judgment creditor from reviving his judgment by scire facias in order to keep it alive, and avoid the Statute of Limitations, and compel him to resort, for that purpose, to the less effective and more hazardous mode of issuing an execution within the twelve years, and renewing it, if not effective, from term to term without break or intermission. Under a
Such would be our judgment in the absence of authority bearing upon the subject, but such authority is not wanting. At common law a personal judgment was presumed to be satisfied within a year and a day from its rendition, and if the plaintiif suffered that time to expire without issuing execution, he could thereafter neither issue execution, nor sue out a scire facias to revive his judgment, and was driven to bring a fresh action in which he could offer his judgment in evidence as proof of the debt. Then came the Statute of Westminster II, (13 Edward I, ch. 45), which permitted and required a scire facials in all cases where the plaintiff desired to sue out an execution on his judgment after the expiration of a year and a day from its final recovery. 2 Poe’s Pl. & Pr., sec. 586. It was early held, however, that the remedy given by this statute was in addition to, and not in substitution tor, the former remedy by an original action. “ This Statute,” says Lord Cokb, “ is in the affirmative, and therefore it restraineth not the common law; but the party may waive the benefit of the scire facias given by this Act, and take his original action of debt by the common law. 2 Inst., 472. Again in Rolle’s Abr., 900, there is the report of the case of Roberts vs. Pesing, tried in the King’s Bench at Trinity Term, 13 Charles I, in which it was decided that if the plaintiff sue a scire facias within a year after the judgment, he cannot afterwards have a capias ad satisfaciendum within the year, till he hath a new judgment in the scire facias. This case is cited as good law in Foster’s Writ of Sci. Fa., 27, and in 2 Tidd’s Practice, 1103, and it does not appear ever to have been overruled or questioned. If therefore authority be needed, this case is directly in point, and conclusive of the ques
Judgments reversed, and new trials awarded.