25 Vt. 303 | Vt. | 1853
The opinion of the court was delivered by
This is a scire facias to obtain a new execution upon a judgment of a justice of the peace, a former executionhaving been levied upon land encumbered by a mortgage, without noticing the mortgage. This proceeding is founded upon a statute passed at the session of 1850, the levy having been made long before that.
1. It is claimed that this statute was not intended to operate upon levies made before the passing of the act. But the terms of the act embrace all time prior to the petition, without limitation, and it embodies in one section all the former remedies, where the executions had been levied upon property not belonging to, the debtor, and merely adds another case, that of executions levied upon land encumbered by mortgage, without regarding the mortgage. So that it is very certain the act was made in terms, and no doubt understandingly, to apply, as well to levies made before,- as after the passing of the act.
2. But it is said the legislature has no power to pass any such law, inasmuch as it disturbs vested rights. But we think this view is not maintainable. The plaintiff had an acknowledged debt originally, and there is no pretence it had been barred in any other mode, except by this levy. This barrier did operate, as a bar to an action of debt, or common law scire facias. But that was merely by reason of an act done by the plaintiff, in which the defendant had no agency, and which effected an estoppel upon the plaintiff’s right, in a manner not intended by him, and not in any sense brought about by the defendant, and where none of his property had been legally taken. It was matter of evidence merely. The act did nothing more than to remove this estoppel. It pertained purely to the remedy, and was in effect enlarging the remedy instead of restricting it, and advancing the right on one side, without denying any right on the other. If this levy was of the nature of a contract between the parties, or a statute bar, it might
3. But at the last session of the legislature, this provision of the Compiled Statutes was repealed, and this will defeat this proceeding perhaps, unless- saved by the statute of 1851, in regard to the repeal of certain statutes. "We can, of course, know nothing about this statute of 1851, but what appears upon its words. It is entitled “ An act relating to the repeal of statutes.” The title of the statute is altogether general. We might, from this alone, suppose it had reference to the repeal of all statutes. If the act had been intended to apply exclusively to penalties sued for, or to penal statutes, it is scarcely to be supposed, so general a title would have been adopted. And the words of the enacting clause obviously extend beyond penal statutes, or suits for penalties. One clause has exclusive reference to penal statutes, and the other words are added to extend the operation of the act beyond that. The other words used in the act are not very definite; but so far as we can gather their fair import, it would seem to be their purpose and intention to save all pending proceedings in court, which depended upon any statute law, from being defeated. by the repeal of such law. This is á very natural and just purpose, and one that would scarcely escape the consideration of a prudent draughtsman, or legislator. Without such a provision, the statute would be very narrow, and partial, and unequal in its operation, and with it, highly just, and equitable, and comprehensive. And the words seem to imply this. In any suit, in which the plaintiff “ has or shall declare upon any statute, ■ or count upon the provisions of any statute.” This evidently is intended to include two classes of suits — one, -where the declaration is in terms dependent upon the statute, and where the form and vitality of the remedy depends upon the operative force of the provisions of the statute. It would be absurd to say, that if this declaration concluded contra formam statute, or referred to the statute, by section and chapter, it would be saved, and without that, it is irretrievably lost. No legislature
The estoppel is removed by the statute, and we see nothing in the case which should entitle the defendant to costs, in the County Court. All the questions litigated were decided against him, and aside from the statute, upon general principles, it seems to us, the other party should have had costs.
Judgment affirmed.
