16 Wend. 425 | Court for the Trial of Impeachments and Correction of Errors | 1836
The following opinions were delivered :
I think the learned judge who delivered the opinion of the supreme court in this, cause has mistaken the legal operation as well as the intent of the framers of the act of April, 1821, to amend the act concerning judgments and executions. Sess. Laws of 1821, p. 246. Previous to that act, I believe it was the general understanding of the profession in this state, that judgments stood upon the same footing, in respect to the presumption of payment, as bonds and mortgages, covenants for the payment of rents, and other specialties. Such at least was my understanding of the law. I have in one or two instances acted upon that supposition at the circuit, in cases where the twenty years had expired before the passage of that act; and have required the plaintiff to introduce some proof to rebut the presumption of payment. Although there does not appear to be any reported case in the English courts, where the question has arisen and been decided upon a plea of payment in an action of debt or a scire facias, the principle upon which the courts proceeded in allowing the scire facias to be issued after the expiration of twenty years, was a distinct recognition of "the general rule as applicable to-judgments as well as other debts. This practice was probably adopted before the statute of Ann, usually called the act for the amendment of the law', and which first allowed the plea of payment to be pleaded to a writ of scire facias, and to an action of debt on judgment. To authorize the issuing of a scire facias to revive a judgment of twenty years’ standing, the plaintiff was not only required to file an affidavit that the debt was still due, and the judgment
It remains for me to consider the object and intent of the statutory provision on this subject in the act of April, 1821, and its legal effect on the case now before ns. By referring to that act it will be found that its general object and intent was to prolong rather than to diminish or shorten the time for which the liens of judgments should continue. The act limiting the lien of judgments to ten years was passed' the 9th April, 1811; and the liens of judgments which had been entered previous to that time would, therefore, have been- extinguished within six days after the passage of the act of 1821. At that time there were many, judgment creditors who had not taken the necessary steps to preserve their liens, by a sale of the property within the time prescribed ; and this act was passed at their solicitation upon the last day of the session of the legislature, for the purpose of extending their Mens until they could revive their judgments,- and consummate such liens by a sale upon execution. The last section which relates to the presumption of payment of judgments, must have been introduced1
' As between the plaintiff and defendant in the judgment, a levy upon property by execution is no discharge of the judgment, provided the goods are afterwards relinquished by the sheriff, and given up to the defendant in the execution, with the consent of the plaintiff. And a levy upon goods sufficient to satisfy the execution in part only, even if the goods are retained by the sheriff, is only a bar tó a suit of scire facias upon the judgment pro tanto, and cannot be pleaded in bar of the whole debt. Peoploe v. Gallins, 4 J. B. Moore, 163. Ford v. Skinner, 4 Ham. Ohio Rep. 383. I am inclined to think, however, that a levy upon personal property sufficient to satisfy the execution, even if it is afterwards delivered up to the defendant, ought to have the effect of discharging the real estate from the lien of the judgment so far • as concerns the rights of bona fide purchasers and mortgagees or subsequent judgment creditors, whose rights had become vested before the restoration of the goods to the defendant. In such a case the lien of the judgment is certainly suspended while the goods
I think, however, the evidence offered by the defendant ought to have been received, in connection with the great length of time which had elapsed, and the other facts in the cause; and that such evidence, unexplained, might have authorized the jury to find the judgment had been collected by the sheriff or paid by the defendant, either wholly or at least to the amount which it appears belonged to the mother of the defendant. If the defendant had real and personal property enough in his possession to satisfy the execution, it was the duty of the sheriff to seize upon and sell that property to raise the amount of the debt. And as it would be a breach of duty and a violation of his oath of office for the sheriff not to do so, I am inclined to think that after such a lapse of time a jury might presume he had done his duty in this respect, unless some explanation was given. The fact that the plaintiff was an executor, whose duty it was to have collected the debt long since if he believed it to be actually due, should also have some influence upon the minds of the jury, upon the question of payment. On the whole,' I think if the evidence offered had been given, it would have presented a proper subject for the decision of the jury ; and if they had found a verdict for the defendant, no injustice would probably have been done.
My opinion therefore is that this judgment should be reversed, and a venire de novo awarded.
It has been repeatedly decided that payment of a bond of 18 or 20 years standing will be presumed, where no interest has been paid within that pe
In Kemys v. Ruscomb, 2 Atk. 45, a bill was filed against the representatives of a judgment creditor, for entering satisfaction on the judgment, as it had been standing 42 years, and presumed to be paid by lapse of time. Lord Chancellor Hardwicke, so far from holding that judgments could stand forever in force against the defendant, or that they should not be presumed to be paid after a lapse of time, directly intimates to the contrary. He dismissed the bill with costs, and said, “ where judgment is still standing
The judgment sued upon was docketed in August 1805, and the statute of the 44th session, Laws of 1821, c. 238, § 4, is referred to as redeeming this judgment from the presumption of payment by the lapse of 20 years; or rather, that having then lain dormant 16 years, it had by that act a prolonged existence of 21 years more; so that this judgment, in fact, has a legal vitality and can be enforced for 36 years from the time it was docketed. Two generations, according to modern computation, will have passed away, before there is an end of the power of this judgment. I have no doubt that this act was intended to be declaratory of the common law. It cannot be supposed that the legislature, by the passing of that act, intended to have it understood, that before then the common law was, that there could be no presumption of payment of a judgment which had stood uncancelled for 20 or 50 or 100 or 1000 years. Such a supposition would be too absurd and ridiculous, to be for a moment seriously entertained. The act of 3d April, 1821, declaring that the presumption of payment shall apply to all judgments
Evidence and remedy are clearly different and distinct from vested rights. With vested.rights the legislature cannot constitutionally interfere, except in the case of taking private property for public use, and then only upon rendering just compensation; but the remedies by which rights are to be enforced, and the evidence by which they are to be established, are clearly within the control of the legislature. Our statutes of limitations are declaratory of certain circumstances, which shall amount to evidence that the contract has been performed, and they have immediate relation to the remedies which are furnished in the courts. Who has ever questioned the constitutionality of those laws, although they go to the extent of prohibiting the party from recovering the demand for which he prosecutes 1 Much less can objection be reasonably urged against the revised statutes on the subject under consideration, as they go to the extent only of declaring, that payment may be presumed, leaving it to the party to produce
Under the plea of payment, lapse of time may be given in evidence. Moreland v. Bennett, 1 Str. 652. Searle v. Barrington, 2 ib. 826. Wells v. Washington, 6 Munf. 532. Jackson v. Sackett, 7 Wendell, 98. And it is for the jury, not the court, to pass upon the evidence of payment by presumption ; payment or non-payment is a question of fact, not of law. Oswald v. Leigh, 1 T. R. 271. The Mayor of Hull v. Horner, 1 Cowp. 109. Willaume v. Gorges, 1 Campb. 217. Bailey v. Jackson, 16 Johns. R. 210. Giles v. Baremore, 5 Johns. Ch. R. 558. In Jackson v. Sackett, 7 Wendell, 100, Mr. Justice Sutherland, in delivering the opinion of the court, said, “ the presumption arising from lapse of time is but evidence to the jury, from which they may infer that the debt has been satisfied. Where it is entirely unexplained, they ought to draw that conclusion. But there is always something in the condition and relation of
If, however, the act of 1821 was legal and operative, in prolonging the existence of this judgment, and the revised statutes are to be deemed unconstitutional as far forth as they affect the plaintiffs in this suit, still the circuit judge erred in rejecting the evidence offered by the defendant, which had for its tendency to satisfy the jury that this judgment had been paid. Admitting this judgment to have been recovered in 1821, after the passing of the act, the judgment at the commencement of this suit had lain dormant for twelve years. According to the act of 1821, payment, by reason of that lapse of time, will not be presumed ; but is the defendant, therefore, precluded from giving evidence, that the judgment had been paid and satisfied ; and if he could not give direct and positive proof of payment, can he not be permitted to give evidence, from which a jury may be well justified in presuming that payment had been made. It would certainly be very extraordinary, if he could not. I know of no statute annulling or annihilating the common law doctrine of presumption. Justice Woodworth, in Hartwell v. Root, 19 Johns. R. 347, said, “ the general rule is, that when a person is required to do a certain act, the omission of which would make him guilty of a culpable neglect of duty, it ought to be intended, that he has duly performed it, unless the contrary be shown. 3 East, 192. 10 id. 216. Phil. Ev. 151. In that case, it is true, the principal point decided was, that a sheriff was not bound at bis peril to have proof of a levy7 in a case like that, where the person, who must be presumed to have done his duty, is sued, and cannot be heard as a witness. But it has been held that such presumption can be legally raised, where the sheriff is not a defendant, and where for aught that appears he might have been called as a witness. In the case of
I am of opinion the judgment of the supreme court, sanctioning'the proceedings at the circuit, and rendering judgment on the verdict, should be reversed.
On the question being put, Shall this judgment he reversed ? all the members of the court, with the exception of two, twenty-four present, voted in the affirmative.
Whereupon the judgment of the supreme court was reversed, and a venire de novo ordered.