Littlefield v. Inhabitants of Greenfield

Danforth, J.

At the time the judgment in suit was recovered, the act of 1858, c. 53, was in force, and under that law certain proceedings, intended to be in compliance with its provisions, were had, and.a part of this debt collected from individuals then assessed. > It is now claimed that such individuals, or a portion of them, are exempt from further payments. Whether they are so or otherwise is a question not involved in this case. For the balance due on the judgment remains in full force. That an action of debt will lie in such case is too well established to admit of a doubt. It is true that, under B. S., c. 82, § 128, scire facias may be maintained. But this is not imperative. It is, by the language used, left optional with the creditor. Were it otherwise, no other remedy, when the time within which an execution might issue had elapsed, except scire facias, would be left for any judgment creditor, for the provisions of the section apply to all judgments alike.

Nor can there be any difference in the result whether the one remedy or the other is chosen. In either case, the execution must issue for the balance due, without any designation of the several sums paid or by whom paid.

The remedy which any person who has paid has, if any, comes only after an attempt to collect of him again, and as this second judgment is founded upon the same original debt, the exemption from further payment applies to that the same as to the first.

The defendants’ argument rests upon an erroneous basis. The judgment, though nominally against the inhabitants, is really against the town as a corporation. The town, as such, is the only party defendant. None of the several inhabitants are named, therefore none are parties. The right to levy upon them or their estates does not accrue by virtue of their being parties to the suit, but is given by statute, as members of the corporation, and can only be enforced in accordance with the provisions of the statute. It comes after the judgment and pertains to its collection only.

The question involved in this suit is the amount duo from the town. If any individuals, members of the corporation, are exempt from liability, by virtue of a compliance with any provisions of law, they can avail themselves of that exemption under an execution issued upon a new judgment, as well as under one issued on a scire facias upon the old one.

Defendants defaulted for the amount due upon the judgment sued.

Appleton, C. J., Walton, Barrows, Peters and Libbey, JJT., concurred.