Clark v. Lathrop

33 Vt. 140 | Vt. | 1860

Poland, J,

I. The defendants, by pleading a special justification of the trespass and imprisonment, admit their liability unless their plea shows a sufficient legal answer.

All having joined in the same pleas, they must show a good justification for all, or else they are good for neither. These are familiar rules of pleading given in all the books on that subject.

Conceding that the facts set forth in the pleas furnish a gQ.Qd answer for Lathrop, the constable, who committed the plaintiff upon the extent, they are no defence to the others, for the pleas ■do not attempt to connect them with the justification at all, by stating that they acted under the constable as his aids .or assistants, or that they were selectmen, or other officers of the town, and put the extent into the hands of the constable for execution. As they do not show themselves in any way connected with the justification, and have, by joining in the plea, admitted their connection with the trespass on the plaintiff, the pleas are bad as to them. If the defendants, Hyde and Cabot, rely on showing they had not any connection with the arrest and imprisonment of the plaintiff, they should have plead the general issue.

As before said, this renders the pleas insufficient to justify the officer also. This objection, however, is only to the form of setting up the defence, and could be remedied by amending, or repleading.

II. But the plaintiff claims that the proceedings set up in the pleas are so irregular and defective as not to show that a good justification can be made out for the imprisonment of the plaintiff, at least not by either of the defendants, who were so connected with the proceeding as to be bound to show anything back of the extent on which the plaintiff was committed ; and as we suppose this is probably the real turning point of the controversy between the parties, and the court are entirely agreed in reference to it, we deem it our duty now to announce our judgment upon it. The pleas allege that the tax, for which the plaintiff was in arrear and delinquent, was voted by the town of Chelsea in 1854, upon the grand list of 1854, and duly assessed and delivered to the plaintiff for collection, but that in the application or petition-presented by the selectmen to justice Lynde, asking for a citation to bring the plaintiff before him according to the provisions of the statute it was erroneously stated that the said tax was made on the list of 1853, instead of the list of 1854.

After setting forth the citation to the plaintiff and his appear, anee and the judgment of the justice, the pleas allege that the justice issued an extent against the plaintiff to enforce the judgment, but that a similar mistake was made as in the petition, and the tax was described as having been made on the list of 1858,

It is insisted that the mistake in the petition had the effect to deprive the justice of any legal jurisdiction to act, and that his judgment was really rendered upon another subject matter than that presented and brought before him by the petition. But this claim is, in our judgment, not well founded. The tax was in all other respects properly described, and at most this was only a question of variance between the allegation in the petition and the proof produced to support it. If this question of variance had been raised and insisted on before the justice, he would clearly have had the power to allow the petition to be amended, as, the tax being in all other respects correctly described, there was enough to amend by. The objection not being there raised, was waived, and the judgment entirely cured the defect.

It is the same in principle as if in a declaration on a note there should be some particular in which the note should be misdescribed, but the defendant should allow it to pass without objection. It would be quite novel to claim that it made the judgment void.

That the justice in such ease acts judicially, and that his adjudication is conclusive as a judgment, and that it is entitled to the same fair and favorable intendment which is applied to every other tribunal, has not been, and we think cannot be properly, denied. Every objection which the plaintiff might have against the validity of the tax itself, or to his liability for being in arrear and delinquent upon it, must have been made before the justice, and is concluded by his judgment. The plaintiff’s counsel also claim the mistake in the extent in stating the tax to have been made on the list of 1853, is such a misdescription of the judgment, as renders the extent void, as if it had issued without any judgment at all, and thus bring this case within the principle of Wilson et al. v. Fleming, 16 Vt. 649, where it was held that a mistake in stating the amount of the judgment in an execution, made the execution void, as if there had been no judgment to support it. If this error in the extent was a substantial misdescription of the judgment, it would doubtless produce the same effect, and make the extent illegal and void.

But the error in the plaintiff’s reasoning is, that this error is pot in the description of the judgment at all. The judgment was "'feria certain sum of money which, in defanlt of payment by the plaintiff, the constable was directed to levy and collect out of his property, and for want of property, to commit the plaintiff to jail. The error was in describing the cause of action, which was the foundation of the judgment, and probably might safely have been wholly omitted in the extent, and, whether correctly described or not, was immaterial to the validity of the extent; and even if it showed that the tax was one where the justice ought not to have rendered any judgment at all, would not make the judgment or extent void. But as all legal presumption is in favor of the proper action of the justice, if the tax, as stated in the extent, would show that it was illegal and invalid, it would be presumed to be a clerical error. But the soundest and most direct answer to the objection is that the judgment is not misdescribed.

For the reasons before stated, however, we think the pleas defective, and that the demurrer should have prevailed. The judgment is, therefore, reversed. The defendants are allowed to replead on terms, and the case remanded.