Chase v. Holton

| Vt. | Feb 15, 1839

The opinion of the court was delivered by

Coleamer, J.

It is not now necessary to inquire whether a surrender of a principal in court, in discharge of liis bail, must not always be entered of record. Of this there may be much doubt, as no such proceeding existed at common law, no such practice in England, and no statute requiring it. In the present case, the plea contains no such allegation, and it is not demurred to for want thereof. The plea was traversed, and the surrender became a matter in pais to the jury, and no testimony, which tended to show the fact, could be rejected. Barney v. Bliss, 2 Aik. R. 60.

As to the plaintiff’s motion for a judgment, non .obstante veredicto, it is insisted fíiát the plea is insufficient, because^it shows a surrender of the principal after the justice’s power to receive him had expired. By the statute, (vol. 2, p. 23,) the justice, rendering final judgment, may continue such suit for further hearing, on the defendant’s application to take the oath, not exceeding twelve days, and, if the debtor is not admitted to the oath, is to add the cost to the previous judgment. Now, iii such cases, is the action so open, and the justice so holding jurisdiction over it, after the day on which judgment was rendered,as that the principal may be surrendered? The statute does, indeed, treat the judgment as previous, but clearly itkeeps it suspended, and the court is still open. No execution can issue. It seems to be but an enlargement of the court day ; and we see no reason, when continued for further hearing, why it should not be treated in the same way as if afl was going on the same day. The justice may take the surrender as well on the continuance day as the court day. This is much the best practical course. It is not until the final hearing on the defendant’s application that it can be known that he will be chargeable in execution, nor can the plaintiff charge him in execution until that time.

It is next insisted that this plea is defective, in not containing an allegation that there was an entry made, on the record, of such surrender. It is not necessary to decide whether the plea would, for that, have been holden bad, on demurrer. In order to sustain this motion, after verdict, the plea must not only be defective, but it must have presented only an immaterial issue. Where the plea presents an equitable defence it will always be sustained, after verdict. This is clearly the law. In this case the plea shows the debtor surrendered as early as he could be charged in execution, and that the plaintiff had notice thereof, at the time. This is clearly an equitable, even if it were not a legal, defence, and the issue, therefore, was not immaterial.

Judgment affirmed.