Martin v. Kilbourne , 11 Vt. 93 ( 1839 )

The opinion of the court was delivered by

Bennett, J.

The questions raised in argument, in this case, lie within a narrow compass. The statute provides, that when the judgment-debtor shall have.been committed to jail, and shall have continued in jail for the space of three months, the creditor shall have full power to discharge the debtor from prison, and thereupon take out an alias execution, which any of the courts of this state are by the statute authorized to issue. The application to the court for an alias execution is not in the nature of an adversary proceeding, and there is no good reason why notice should be required ; and, indeed, if notice was required, it might often defeat the main object of the application. The taking of the body in execution is no satisfaction of the debt; and, while it remains in execution, no presumption of payment attaches. If the judgment has been, in point of fact, satisfied, or the alias execution improperly issued, the party must be put to the appropriate proceedings to set it aside. The creditor, upon his application, takes an alias execution, as matter of right and at his own peril. That this is the sound construction of the act of 1803, is apparent from the provision of the act of 1837, which provides that the act of 1803 shall be so construed as to authorize the clerks of the county courts, in vacation or at any other time, to issue alias executions, in all cases embraced in that act, without any special application to the court for the same.

On the question, whether the officer did right in adding interest to the execution, the court have no difficulty. By the act of 1822, it is provided, that all judgments, on which execution shall issue, shall be on interest after sixty days from the rendition thereof; and every officer executing the same is required to collect the interest, and is made accountable therefor. The statute enacts, that all judgments, on which executions shall issue, shall be on interest after 60 days, and is there any good reason why the court should, by construetion, limit these general words, and hold the statute not applicable to the case under consideration ?

The commitment of the body is not in the nature of payment of the debt; but is only a means which the law has provided for the creditor for enforcing satisfaction. If the debtor is discharged under the provisions of the act for the relief of poor debtors, the judgment is left in full force and effect against his estate, and should an action of debt be instituted on such judgment, it is clear that interest would be added to the damages. The only effect of the commitment is to suspend further remedy, as long as the body remains in execution, and' it is difficult to see upon what principle it is to operate to prevent an accumulation of interest as an incident to the debt, in cases where it fails to produce a satisfaction of the debt itself. If the commitment had been made effectual to the production of a satisfaction of the debt, and the creditor had made a further claim of interest, it would have presented a different question from the present. The statute is express, giving interest on judgments after 60 days, and we see no good reason why it should not be applicable to the present case. The judgment of the county court must, therefore, be reversed, and, under the rule of the parties, judgment entered up for the plaintiff.