The opinion of the court was delivered by
Bennett, J.This is an action of debt on judgment, to which the defendant in the county court pleaded several pleas, to two of which, the second and fourth, the plaintiff demurred; and the county court adjudged the pleas insufficient. We shall only pass upon the second plea, as that must lead to a reversal of the judgment of the county court.
This plea, after admitting the judgment, as described in the declaration, proceeds to allege the issuing of the execution in due form of law against the property and body of the defendant, and a commitment of his body to the keeper of the jail of the county, within said prison, and a subsequent return of the execution to the proper office. It must be admitted by all, that so long as the body remains in custody, the right of action on the judgment is suspended. The body of the debtor is held as a pledge, and, in one sense, may be treated as a quasi satisfaction of the debt. So long as it continues in prison, the creditor can have no other remedy. The only question, then, on this plea, is, whether it was incumbent upon the pleader to have alleged, that the body of the debtor still remained jn prison until the time of the commencement of the present action.
In regard to pleas in abatement, the highest degree of certainty is required; and it has sometimes been said, that it must be so great, as to lead to the exclusion of a conclusion. In regard to pleas in bar, rejoinders, and such other pleadings, on the part of the defendant, as go to the merits of the action, the lowest degree of certainty is allowable, which the rules of pleading will in any case tolerate, — and less certainty, than is required in declarations, repli*631cations, and other pleadings on the part of the plaintiff. Can it, then, be necessary, that the defendant should anticipate, in his plea, matter appropriate for a replication, and negate it?
If the defendant had been discharged by the plaintiff, or had escaped from prison without having paid the debt, either would be a good replication. If, to a plea of the statute of limitations, the plaintiff reply, that the defendant left the state before the right of action accrued, it will, I apprehend, be intended, that he continued to remain out of the state, without any distinct averment to that effect ; and if he did not, it should be so averred in the rejoinder to the plaintiff’s replication. In the case of Day v. Abbott, 15 Vt. 632, the defendant pleaded in offset a certain judgment, which he had obtained against the plaintiff, and to this the plaintiff replied, that the defendant, being indebted to one Keith in $200, on the twentieth of November, 1839, to secure him that sum, and what he might thereafter owe him, assigned the judgment to Keith, of which the plaintiff the same day had notice. There was no averment in the replication, that Keith’s debt remained due and unsatisfied at the time the replication was filed. It was held, that if the assignee’s interest had ceased in the judgment, it should have come out in a rejoinder to the replication ; and the replication was held good upon demurrer. The principle seems to be, that where a fact is averred in pleading, as existing, which is continuous in its nature, it is to be taken as continuing, unless the contrary be averred ; and that, when averred, it should come from the opposing party. We think the principle well applies to the plea in question.
The plea alleges, that on a given day the defendant was committed to jail. If the defendant has been discharged by the plaintiff, or by taking the poor debtor’s oath, or has escaped from prison, or been released by the sheriff, this is all new matter, and forms distinct and material matter for a new issue; and we think it should be brought out in a replication. In the case of Farnsworth v. Tilton, 1 D. Ch. 297, the plaintiff replied an escape; and though Chipman, Ch J., advances the position, that a plea, stating a commitment of the debtor in execution, without showing that he still remained a prisoner, is bad, yet no such opinion was called for by the case before the court; and however much we are disposed to reverence the memory and admire the learning of the late Ch. Jus*632tice Chipman, yet we are inclined to think this opinion unsound. It is certainly opposed to the principle assumed by the court in the case of Day v. Abbott, before cited.
As this plea is an answer to the action, it is not necessary, to dispose of the case, to consider the fourth plea. The judgment of the county court is reversed ; and the plaintiff has liberty to plead anew, upon the usual terras as to costs.