
    Stone and others vs. Green and others.
    
      Aji.fi. in a suit commenced since the act of 1840, (Ness. L. of 1840, p. 334,) must conform, both in respect to its frame and the time of issuing it, to the 24th section of the act; and this, whether the judgment be entered in term or in vacation.
    
    Accordingly, where the plaintiffs perfected judgment in term on the 18th of July, and, within five days afterward, issued a fi.fa. returnable at the succeeding October term; held, irregular.
    Motion to set aside fi. fa. The plaintiffs perfected judgment in their favor on the 18th day of July, in July term, 1842, and within five days afterward caused a fi. fa. to be issued in the form used prior to the “ act concerning costs,” &c. passed May 14th, 1840. The writ was made returnable at the succeeding October term.
    S. Baldwin, Jr. for the defendants,
    now moved to set aside the^. fa. on the ground that it was issued too soon, and was not in proper form. The plaintiffs were bound to wait until “ the expiration of thirty days from the entry” of their judgment; and the fi. fa. should have been made returnable in “ sixty days.” (Act of 1840, p. 334, §23, 4.)
    
      James Brown, for the plaintiffs,
    insisted that, on a fair construction of the provisions of the act referred to, they would be found inapplicable to writs of fi.fa. issued upon judgments entered in term. They only apply where the fi. fa. issues on a judgment entered in vacation.
    
   Bronson, J.

All laws which either impair the obligation of contracts, or deprive the creditor of prompt and efficient means for reaching the property of the debtor, are of a demoralizing tendency, and stand opposed to the best interests of society. Among the number of such enactments may be reckoned 66 stop” an4 , “exemption” laws, the insolvent law of 1811, and the insolvent branch of the late bankrupt act of the United States. Such laws may sometimes have their origin in a sympathy for unfortunate debtors, and a feeling of kindness towards the poor. But it will, I think, be found, that they more commonly spring from a desire to escape the just punishment of idleness, extravagant living, and gambling speculations. They do little for thepoor beyond depriving honest tradesmen, mechanics and laborers, of the just rewards of their industry. It is those who live at ease, and sometimes in splendor, that usually reap the fruits of such laws, and not the more humble portion of the community who toil for the bread they eat. Laws which are wholly prospective in their operation, however impolitic they may be, can be endured ; but when they have a retroactive effect, and either nullify existing contracts or take away the remedy of the creditor, they are justly chargeable with some one of those vices which, when committed without the sanction of legal enactments, never receive a milder name than fraud, and are sometimes denominated theft and robbery. The property of one man is taken without his consent, and appropriated to the use of another. I would go any length, short of doing violence to the plainly expressed will of the legislature, in so construing a statute as not to give the least countenance to that lax morality in relation to the payment of debts which is now beginning to disgrace sovereign states, as well as individuals and private corporations.

The reform act of 1840, {Stat. of 1840, p. 334,) does not impair the obligation of contracts; and, although it delays the execution of those who were creditors at the time the act passed, the loss is nearly or quite made up by other provisions in the same statute for obtaining a speedy judgment. In actions upon written contracts, the defendant is not allowed to plead without swearing to a defence, and judgments may be entered in vacation as well as in term time. And on the whole, this statute has left the creditor nearly as well off as he was before ; and that is more than could well have been expected at • the present day, when the whole course of legislation tends so strongly in favor of the debtor.

This statute gives a new form of fieri facias, and provides that it “ may be issued” &c. “ after the expiration of thirty days from the entry of judgment.” As I could see no good reason for this delay, I was disposed to read the provision according to the letter, and allow the creditor to have an execution in the new form whenever he chose to wait thirty days, but without any prohibition against issuing the old execution immediately after judgment in all cases. But my brethren thought that would not do, and it has already been settled that there must in some cases be a stay of execution for thirty days. (Commercial Bank of Oswego v. Ives, 2 Hill, 355.) A distinction is now taken; and it is said that the provision for a stay and a new form of execution only applies where the judgment is entered in vacation, and that when it is entered in term time the old execution may issue, without any delay. Such is not my reading of the statute. The provision is as follows : “ Judgments may be entered and perfected at any time in term or vacation.” ( § 23.) “ Writs of fieri facias may be issued and tested at any time in term or vacation, after the expiration of thirty days from the entry of such judgment.” (§24.) When we come to the words “such judgment,” we must look back and see what judgments had been before mentioned, and in doing so we find that they are judgments entered 66 in termf as well as those entered in vacation.” I know that, as to term judgments, the statute has conferred no new authority, but still, after mentioning judgments of both kinds in the same sentence, a stay and a new form of execution is provided in relation to “ such judgment;” and it is difficult to say that the provision does not extend alike to judgments of both kinds. If, as has already been settled, there must sometimes be a stay of thirty days, it follows, I think, that there must be such stay in all cases, and the old writ of fieri facias is abolished. The motion to set aside this execution must therefore be granted.

Nelson, Ch. J. concurred.

Co wen, J. dissenting.

The 23d section declares that judgments may be entered arid perfected either in term or vacation. The 24th section declares that “ writs of fi. fa. may be issued and tested at any time in term or vacatiori, after the expiration of thirty days from the entry of such judgment, and such writs shall be made returnable sixty days from the receipt thereof, &c. and may be made returnable before the justices, &c. without mentioning any particular place,” &c. This statute gives the right to a special fi. fa. on a judgment perfected either in term or vacation ; and with regard to the latter, no doubt the plaintiff, if he proceed by^. fa., must confine himself to the special writ in all cases where the judgment depends upon the statute for its validity. The statute has, quoad hoc, created a new remedy by judgment in vacation and z fi.fa. in a certain form, and must be followed throughout. There is, however, a large class of judgments which are still valid at common law, independent of statute authority, the ordinary writ of fi. fa. upon which is certainly not taken away by any express words of the act in question. Such are all judgments perfected in term, and some in vacation, as, by warrant of at-1 torney to confess judgment. So far from express words, there is no incompatibility between the new statute and the old law respecting judgments in term. The words of the new act are merely permissive, and in respect to judgments in term may well be regarded as cumulative. The expression is, you may have the special execution after thirty days; and I have sought in vain for any implication by which the ancient right of immediate execution in the usual form can be repealed. A coristruction which repeals former statutes or laws by implication is not to be favored in any case; and especially where it is sought to divest a long approved and salutary remedy for the collection of debts, sanctioned both by the statute arid common law. Had the legislature intended to derogate froin the rights of creditors under that law, it was easy to have said So. This they have not done. On the contrary, without raising an implication that they intended any siich thirig, they pass a statute with the evident view of facilitating and hastening remedies for the collection of debts. I am aware of no case or any rule of construction which would warrant us, on a statute expressed as this is, in holding that the former law is repealed. It seems to me that such a construction would be a violation of all rule. The statute has in effect done nothing more as to judgments in term than to give the creditor an election of a special execution, if he choose to take it, instead of the general one.

The only answer to this view of the question urged on the argument was, the clause in the 24th section—“ such writs shall be made returnable sixty days from the receipt thereof by the sheriff,” &c. But this direction may be clearly satisfied by applying it to the sort of writ specially authorized, viz. the anomalous writ which it is before said may be issued and tested at any time. The act, by these words, prescribes the form of the new writ, but does not abolish the old one.

Motion granted.  