
    Pennock and another against Hart and another.
    ^ years within which it is necessary to sue out a scire facias to revive a judgment, under the second section of the Act of the 4th of April, 1798, begin to run, where there is a stay of execution, from the expiration of the period during which the execution was suspended.
    If a scire facias be sued out within the five years, which is returned tarde cénit, and an alias scire facias issue after the expiration of that period and after a term has intervened, the process may be connected, and the commencement of the proceeding must be referred to the issuing of the orignal scire facias.
    
    In Error.
    WRIT of error to the Common Pleas of Northumberland county, in a feigned issue directed by that Court, for the purpose of ascertaining whether a certain judgment obtained by the plaintiffs in error, who were also plaintiffs in the issue, against Thomas Robins, was entitled to be paid out of the proceeds of the sale of his real estate, in preference to a judgment obtained against him by the defendants in error.
    It appeared, that on'the 15th of November, 1810, Thomas Robins confessed a judgment for two thousand and ten dollars eighteen cents, in favour oi the plaintiffs, in the Court of Common Pleas of Northumberland county, which was entered as of November Term of that year, with a stay of execution until the 16th of April, 1811. Upon this judgment no execution issued, but on the 15th of April, 1816, a scire facias isstfed, returnable to April Term, 1816, to which the Sheriff n turned tarde venit. To November Term, 1816, an alias scire facias issued, on Which judgment was entered on the 23d of January, 1817. Under this judgment the lands of Thomas Robins were sold.
    The judgment under which the defendants claimed the money arising from the sale, was entered in the same Court on the 29th of August, 1812, for two thousand one hundred and thirty-one dollars six cents. Upon this judgment a scire facias was issued to January Term, 1815, on which judgment was entered on the 23d of the following November ; and to April 'Perm, 1817, a scire facias again issued, on which judgment was rendered on the 25th of the ensuing August.
    
    The judgment originally obtained by the plaintiffs, was admitted to be the oldest judgment on the records against Thomas Robins, against whom there were several other judgments, younger than that of the defendants.
    The cause was tried on the 18th of April, 1821, when the President of the Court of Common Pleas charged the jury to the following effect:—
    This is a feigned issue, directed by the Court to try whether the judgment of Abraham L. Pennock and Samuel J. Robins is a good and valid lien upon the estate of Thomas 
      
      Robins; and whether it has been so revived under the Act of the 4th of April, 1798, as to continue the lien from the time it was confessed. This uidgment which was entered on the 15th of November, 1810, with a stay or execution until the 16th of April, 1811, it is admitted, is the oldest judgment against the estate of Thomas Robins. The j-udgxnent of Thomas and William Hart, was entered on the 29tti of August, 1812. By the Act of the 4th of April, 1798, it is declared, that no judgment shall remain a lien for a longer term than five years from the first return day of the term of which such judgment may be entered, unless within that term a scire facias be surd out to revive it. The judgment of Pennock and Robins, was not revived by scire facias within five years from the first return day of the term of which the judgment was entered, but a scire facias was issued, and returned tarde venit, within five years from the expiration of the stay of execution. On behalf of the plaintiff's, it is contended, that the five years commenced from the expiration ot the term limited for a stay of execution, and not from the first return day of the term of which the judgment was entered. It is certainly the rule in a scire facias post annum et diem, that the year and day commence at the expiration of the stay of execution. By that circumstance, the first impression was probably made upon the mind of the Court, that, in this case, the five years must commence after the expiration of the stay of execution. But that construction would not only be aga.nst the words of the Act, but, in the opinion of the Court, against its spirit and meaning, and would, in a great measure, destroy its beneficial effects. The scire facias after a year and a day, for the purpose of issuing execution, is solely for the benefit of the defendant in the judgment, who is supposed to be acquainted with the condition of the bond and the stay of execution. But the Act limiting the lien of a judgment to five years, is for the benefit of judgment creditors and purchasers, and not for the benefit of the defendant, and no good reason can be given why the lien should continue five years from the stay of execution. A judgment entered by an attorney, by virtue of a warrant of attorney, is for the penalty, and the condition of the bond is seldom stated upon the record. In such cases, judgment creditors or purchasers would not have it in their power to discover from the record, what the condition is, or whether there is a stay of execution ; especially in the case of bpnds of indemnity to' become due upon contingencies.
    The Court are of opinion, that the lien of the plaintiffs’ judgment is lost, in consequence of no scire facias having issued to revive it within five years from the return day of the term of which it was entered, and that the defendants’ judgment must be preferred. The Court are also of opinion, that the scire facias returned tarde venit, will not continue the lien. The scire facias sued out to revive the judgment, must be prosecuted with effect. Then the lien will continue from the issuing pf the original scire facias, agreeably to the provisions of the Act. The scire facias returned tarde venit, if it had been sued out in time, would not have Continued the lien of the judgment.
    To this opinion the co’unsel for the plaintiffs excepted.
    
      Hepburn and Bellas, for the plaintiffs in error.
    1. The first question is, whether the period of five years, to which the lien of a judgment.on réal estate is limited by the 2d sec. of the Act of 4th April, Purd. Dig. 306, is, in all cases, to be computed from the return day of the term in which judgment is entered? The strict letter of the Act, it is true, would lead to this conclusion j but the inconveniences of a literal construction are in some instances so great, that it ought to be departed from. Such a departure is fully sanctioned by the soundest rules of construction, which do not require the words of a law to be so interpreted, as to lead to inconveniences which the Legislature never intended to introduce. On the contrary, a liberal construction is always given to Acts of.Limitation such as this, which are thus made to meet the evils they were intended to remedy. The Act for recording deeds declares, that no deed or mortgage, shall be good to pass any estate, unless it be recorded within six months from its date ; yet these instruments are valid against subsequent purchasers or mortgagees, with notice of the prior deed or mortgage. The Act of Sd April, 1804, sec. 3, declares, that where lands have been sold for taxes, no action for the recovery of them shall lie, unless it be brought “ within five years from the sale thereof for taxes but notwithstanding the explicit language of the Act, it has just been decided, that the term of limitation commences at the time the purchaser enters into possession, and not at the time of sale. Many other instances might be adduced, in which the letter of a Statute has been departed from, where its spirit and meaning did not require it to be strictly followed. These rules of construction are fully considered, and clearly explained in the case of The Bank of North America v. Fitzsimons, 3 Binn. 342, a decision upon the very Act now under consideration, which it was held protected subsequent judgment creditors from the indefinite lien of a judgment which existed at common law, as well as subsequent purchasers, although the preamble speaks of purchasers only. The fair construction of the Act of 1798, is, that the limitation runs from the time at which the record shews that execution may issue. If it were otherwise, there are cases in which a plaintiff would be deprived of the benefit of his judgment altogether. The scire facias issued upon a judgment, calls upon the defendant to shew cause why the plaintiff should not have execution. If, therefore, a scire facias should be taken out within the period during which execution was staid, this would be a sufficient answer to the writ, and the plaintiff would be defeated. Many cases may arise, in which the plaintiff would be restrained from issuing execution, until the whole term of five years had passed away. The judgment may be upon a bond payable by instalments, with stay of execution for five years or more : The record may be removed by writ of error, and the cause remain undecided during that time : There may be a motion to open the judgment, the decision of which may be protracted more than five years; and if under such circumstances, a scire facias were issued, the Court on motion, would quash it. What then is the situation of the plaintiff? Unless the five years are counted from the cesset, the plaintiff loses his lien, although it is impossible for him by any effort of his own to preserve it. The year and day within which execution must issue, to §ave the necessity of a sczVe facias, are always calculated from the expiration of the cesset, whether it be entered on the record, or be the result of agreement out of Court. Dunlop’s Lessee v. Speer, 3 Binn. 169. This, and the case oí Young v. Taylor, 2 Binn. 218, in which it was decided, than an execution issued within a year and a day, continues the lien of a judgment, without resorting to a scire facias under the Act of Assembly, substantially decide the present qui stion. The design of the Act was to prevent mischief to subsequent purchasers and incumbrancers, arising from their not being able to ascertain whether or not old judgments have been satisfied, and it fixes a certain period, after which it must be presumed that they have been satisfied. But where that presu r-ption is rebutted by circumstances which appear upon the record, the mischief does not exist, and of course the rule does not apply. It would be unreasonable to presume payment after the lapse of five years, when it appears to all the world that during a part or the whole of that period, the hands of the plaintiff were tied, and that he was prevented from pursuing those measures which were necessary to enable him to obtain payment.
    2. The first scire facias was sued out within five years from the expiration of the stay of execution, and that was sufficient, notwithstanding it was returned, tarde venit. It appeared on the record, and was as complete notice to third persons as if it had been served. The alias scire facias, which was issued after the intervention of a term, .nay be connected with the first by entering continuances. Lewis v. Smith, 2 Serg. & Rawle, 142. Ball. on Lim. 150. 153. Willes Rep. 258. 4 Bac. Ab. 483. 6 Bac. Ab. 105. 107. 1 Dall. 411. 7 Mod. 5. 4 Bac. Ab. 482. 6 Binn. 177. Robert's Dig. of Br. Stat. 239. 240.
    
      Greenough and Bradford, for the defendants in error.
    The Court are asked, not to give an interpretation to a law now in existence, but to depart so entirely from its provisions, as in fact to make a new law. • This departure is said to be required by the inconvenience which would result from a construction according to the plain language of the Act. That some cases of individual hardship may arise is very possible, and there are few laws under which they do not, but most of those which are dreaded in the present instance, are imaginary, and by no means equal to those which would follow, if the construction contended for on the opposite side should prevail. Thus in endeavouring to avoid some dimculties, others of greater magnitude will be introduced. The objection that no scire facias can issue until the stay of execution has expired, is easily answered. It is the voluntary act of the party to grant the stay, and he ought not to complain of the consequences. If a creditor wishes to give longer indulgence than five years, he may secure his debt by mortgage, instead of judgment, which would be free from all objections of this kind. But a better answer is, that the plaintiff may have a scire facias, notwithstanding it is not in his power to issue execution. A scire facias in the usual form, quare executio non, it is true would not answer his purpose, but a writ framed specially for the purpose of reviving the judgment under the Act of Assembly would, and it is has been usual in practice to insert a clause to this effect. Upon such a writ the Court would render a special judgment that the lien should continue five years longer. That such was the intention of the Legislature, is obvious from the 3d sect, of the Act of 4th April, 1798, which, after directing the manner in which the writ shall be served, declares, that the Court shall direct and order the revival of the judgment during another period of five years. With a scire facias framed to meet the exigency of the Act of Assembly, therefore, a cesset of the execution would not interfere. But the inconvenience to which subsequent purchasers and incumbrancers are liable, are not so easily got over. It is usual to search the records for judgments only five years back, and if no judgment be found, or scire facias upon an older judgment within that period, they consider themselves safe in advancing their money. It would be most injurious to them if they were obliged to carry their researches back to a period indefinitely remote, in order to ascertain the existence of ancient judgments, of which no notice was given by scire facias. The only question is, what is the meaning of the Act of Assembly ? Its language is entirely free Irom ambiguity, and declares, that the five years shall be counted from the first return day of the Term of which the judgment is entered. No considerable inconvenience can arise from an adherence to its letter, but great inconvenience will certainly flow from a departure from it. Can there be a doubt then, what ought to be its construction ?
    The preceding part of the argument has gone upon the idea, that a scirefacias was legally sued out, agreeably to the directions of the Act of Assembly, within five years from the expiration of the stay of execution ; but this was not the case. The first scire facias was taken out too late, and returned, tarde venit. It was, therefore, as if no writ had issued, and can have no effect in reviving the judgment. The second scire facias did not issue until a Term had intervened, andas this is process which cannot be connected by entering continuances, the second scire facias is the only one which can be considered operative. More than five years had elapsed after the stay of execution had expired, before this writissued, and therefore the judgment was not revived by either.
    In reply, it was said, that very few cases could be found, in which a special scire facias to revive a judgment had issued, and these few were not of late years. According to the construction given by the counsel for the defendants in error, there must be two writs of scire facias ; one to revive the lien, another to obtain execution. A judgment alive for the purposes of execution, and dead for the purposes of lien, is an anomaly.
    
      
       See ante, 357.
      
    
   The opinion of the Court was delivered by

Gibson J. —

It seems to be the better opinion, that in personal actions, the scire facias to revive judgment, lay not at the common law ; but that it was first introduced and its nature declared, by the Statute of Westminster 2. 13 E. 1. St at. 1. c. 45 : before which the plaintiff was put to a new original on the judgment, which after a year and a day was presumed to be released or satisfied. This rule of the common law was for the protection of the debtor; and one object of the Statute was, to preserve to him the benefit of it, while a more speedy and less oppressive remedy was provided for the creditor. Our Act of the 4th April, 1798, was passed for the protection of purchasers, from the debtor ; but, as to the question before us, it is evident the same principles must govern in its construction, that are applicable to the English Statute ; for where the law would raise no presumption of payment in favour of the debtor, there is no reason to suppose the existence of the judgment as an incumbrance, would be a surprise on the purchaser. Both at the common law and under the Statute, the presumption that.the judgment has been discharged, is prima facie; and, therefore, you shall not molest the defendant with an execution, before you have given him an opportunity to shew the truth. By the Act of Assembly a purchaser from the defendant, may, at the end of five years, rely on the presumption as conclusive, and in this respect, its legal effect is different; but the same circumstances that prevent it from arising at all, may sometimes be found in both cases, and are, where they exist, equally operative in each. Now, it is well settled, that where there is a cesset, the computation under the Statute is from the end of the time during which execution was suspended. Why should there be a different construction of the Act of Assembly ? By the Statute, “ If the plaintiff cometh to the King’s Courtj if the recognisance or fine levied be fresh, that is t.o say, levied within the year, he shall forthwith have a writ of execution of the same recognisance ; and if the recognisance were made, or the fine levied of a further time passed, the Sheriff shall be commanded that he give knowledge to the party of whom it is complained, that he be before the justices at a particular day to shew, if any thing he hath to say, why such matters enrolled or contained in the fine, should not have execution.” By the Act of Assembly, “No judgment entered in any Court of record, shall continue a lien on the real estate of any person against whom such judgment, may be entered, during a longer term than five years from the first return day of the term of which such judgment may be so entered, unless the person who may obtain such judgment or his legal representatives, shall within the said term of five- years, sue out a writ of scire facias to revive the same.” Here the first return day of the term is mentioned, because it was absolutely necessary to fix some determinate point of computation, to prevent disputes in ordinary cases ; and not to indicate an intention, that the computation should be governed by it in all cases, and under all circumstances. It will therefore, be seen, that .there would be no greater departure from what may seem positive and mandatory in the one case than in the other; the Act of Assembly being not a jot more peremptory, as to the time when the scire facias becomes necessary, than the Statute. The truth is, that each should be construed liberally, to give fair and full effect to the whole intention of the Legislature. This has already been done by this Court in Young v. Taylor, 2 Binn. 218, where it was held, that the issuing of an execution within the year, continues the lien without resorting to a scire facias. The principle of that decision, if it be right, settles the case before us : and that it is right, I think there can be little doubt. If Statutes were in all cases construed according to the letter, scenes of injustice, which those who enact them would deplore, would abound in our Courts. It is impossible for any Legislature to foresee the infinite variety of cases that will fall within the letter of the law they are about to enact, and yet be out of the scope of its aim. When one of these occurs, what are the Judges to do? It seems to me, they ought to do what their consciences irresistably persuade them the Legislature would have done, if its occurrence had been foreseen. No Judge ever arrived at a wholesome conclusion by following the letter, either of the written or the unwritten law. No one ever supposed that a system complete in all its parts, could be struck out at a heat, by the most able lawgiver that ever lived. The Legislature with all the skill and care which knowledge and diligence can bestow, are able to do little more than mark out principles ; their application, as well as the more minute details, must, in general, be left to the Courts as cases may, from, time to time, arise ; particularly, where the enacting power has legislated only on a part of the subject. A too severe application of the common law rules, forced the Court of Chancery into existence in England. The body of the chancery law, is nothing else than a system of exceptions; of principles applicable to cases falling within the letter, but not within the intention of particular rules; or if falling within the letter, yet not within the intention. The exercise of equity powers in every government of laws, is conclusive proof of a necessity that they be lodged somewhere. Every Tule, from its universality, must be defective : the truth of this is perceived the instant we come to apply it to particular cases. It would be strange to permit the excercise of such powers in respect to laws founded in usage, and which have been gradually formed from the experience of agi-s, and deny them to those that are formed of a sudden, and without any experience of their operation in practice. It is frequently necessarv, for the'purpose of preventing the actual intention of the Legislature from failing of its effect. Then to come to the Act immediately before us. It is obvious, that the person who penned it, had in his mind’s eye, the ordinary case of a judgment for a sum presently due. The mischiif to be remedied, was the distressing state of uncertainty with re. gard to the existence or extinction of incumbrances which arises from the practice so common in Pennsylvania, of paying money to the plaintiff or his attorney, without having satisfaction entered on the docket. From this cause the records were crowded with judgments that were apparently outstanding. The purchaser was frequently embarrassed in procuring the requisite proof of payment, where payment had in fact been made ; he could not tell when he was s-ffe in buying ; whether the purchase money would be sufficient to discharge the incumbrances ; or how to appropriate it, where it would ; so that the free transmission of real property by sale, so congenial to our habits, was seriously impeded. The provisions of the Act of the 13th of April, 1791, requiring the plaintiff to enter satisfaction at the request of the debtor, were found in practice, to be an inadequate remedy. It was therefore found necessary, for the Legislature to apply a more efficacious one. But where, on the very face of the judgment the money appeared not to be duet there was no occasion for Legislative interference. To what end require a revival of the judgment at a considerable expense, which must be borne by some one, where it can furnish no additional notice of the continuance of the lien ; or require that to be reduced to certainty, on which there hangs riot a doubt ? But under the form of writ constantly used, I do not see how such a judgment could be revived. To a scire facias, quare executio non fieri debeat (the form prescribed by the Statute of Westminster. See the Statute in the original Latin, 2 Inst. 469,) the defendant might successfully plead that the cesset had not expired. It may be. said the Act contemplates a writ specially framed, and that the judgment directed to be entered is, that the former judgment be revived for another period of five years. It is so. But I am not aware that this form has been pursued in a single in.stance, (certainly it has not in many) and this is another circumstance to shew the incalculable mischief that would ensue from a rigid construction of the Act. I would riot only sanction what has been done according to the form now in use, but, as our practice has already been rendered inconveniently loose, and our records almost unintelligible, by the introduction of incongruous forms of proceeding, I would not desire to see it changed : particularly, as it answers every beneficial purpose intended to be effected by the Legislature.

Another point slightly pressed at the argument was this : A scire facias was issued within five years from the expiration of the cesset, which was returned tarde; and after the expiration of the five years, as well as after the succeeding term, an alias was issued, on which the judgment was revived. The question is, whether the proceedings were in time ? It is clear that in England, the suing out of an original or latitat, if it be continued down by vice comes non misit breve, will save the bar of the Statute of Limitations. Carth. 136. 233. Salk. 420. pl. 1. Sid. 53. 2 Keb. 46. The only doubt here, is, whether there was not a discontinuance, by reason of the intervention of a term between the original scire facias and the alias. But even in England, the continuances, although they must actually be entered, are so far matter of form, that they may be written on the writ by the attorney at his chambers. Keb. 140. Sid. 53. With us they are so purely matter of form, that they are never entered at all; and it is a common practice to continue process by an alias or a pluries, with the intervention of even more than one term. Here it would be hard to trip the plaintiff up on this exception; as the first writ performed the office of giving notice, equally as well as if it had been served. The commencement of the proceedings, must, therefore, be referred to the issuing of the original scirefacias.

Judgment reversed, and a venire facias de novo awarded.  