Hyde v. Taylor

The opinion of the court was delivered by Redfield, J. The words of the statute, under which this proceeding is had, are, that when the levy shall be “ irregular, informal, or not according to the strict rules of law, so that the title shall -be doubtful,” this application may be made to this court, and the SfeVy -be vacated, or affirmed, as the case may require, upon hearing. It is claimed, that the present remedy is confined to those defects, Which arq apparent upon the face of the levy. But we think not. :’Sucli clearly is not the language of the statute. That is extensive enough to reach almost every case of defective levy. Before the enacting of the present statute, it had been decided by this court, that, when the defect was apparent upon the record, a new execution might be obtained by scire facias. Royce v. Strong, 11 Vt. 248. Such had long been the understanding of the profession, before any such remedy as the present was first provided by statute in 1837,— [601] which formed the basis of the present Revised Statutes, upon that subject. But when the defect did not appear of record, neither debt nor scire facias would lie. That seems to us to have been one of the evils intended to be remedied by the statute. And now, for this court to so construe this act, as to exclude the very cases intended to be reached, would be, in effect, to repeal it by construction. It is also a remedial statute, of a highly beneficial character, for the relief of faithful officers, who, through inadvertence, or error in judgment, or other cause, have failed to comply with all the requisites of the law, and should receive a large and liberal construction, so as to advance the remedy and prevent, or cure, the evil. The levy is vacated, and a new execution awarded.