13 Vt. 639 | Vt. | 1841
The opinion of the court was delivered by
The recognizance in this case is weft enough. The authority issuing the writ, is not required to enter upon the writ the entire record of the recognizance, but only “ a minute thereof.” If this minute contain the name of the person recognized, and the amount, and intelligibly express the object of its being taken, it is sufficient. All other defects may well be supplied by the record of the recognizance, when finally made. Houghton v. Slack, 10 Vt. R. 520. Foster v. Carpenter, 11 Vt. R. 589. The fact, that, in the present case, the minute made by the justice, of the recognizance on the writ, blends two distinct recognizances, is of no importance, for the same reasons above sta-
We have not been able to perceive any insuperable objection to the service of the process. The copy, left with the principal debtor, was left by the officer who made service upon the trustee, and whose precinct did not extend to the place where he left the copy. But this proceeding was under the former statute. By that statute, the officer making service upon the trustee, is required to leave a copy with the principal debtor. The service upon the trustee is the mere attachment of property, and the copy is left with the principal debtor for the purpose of notice. When property is attached by an officer, he may, and indeed should, leave a copy with the debtor, if he reside any where in the state. We think the same rule, for the same reason, will apply to the present case. How far the same rule will apply to a similar case, under the statutes now in force, we have not felt it ne-eessary to consider. It has been decided that the trustee is not a party to the process, except as a mere depositary of goods, rights, or credits, which are attached in his hands, and which is, in reality, but the service of the process upon the principal debtor, by which the court obtain jurisdiction of the cause.
In regard to the question of the right of the plaintiff to recover upon the merits of the action, the court are not so fortunate as to be unanimous. A majority of the members present think the action cannot be maintained. It will always be the case where money is in the hands of the defendant, which in good conscience he ought not to retain, even although he obtained it under the sanction of a judgment of a court of law, which is still in force, that there will be a strong disposition in courts of justice to afford relief to the injured party. This state of circumstances has Jed to many very singular decisions, such as cannot be reconciled with general principles. The case of Moses v. Macfarlane, 2 Burr. 1005, was decided by one of the ablest courts which ever sat in Westminster Hall, but it never can be made to consist with established general principles, or be made acceptable to the profession. From the day of its first promulgation to the present, it has been constantly doubted, and its authority disregarded.
This debt, then, having been partly paid, the defendant brings suit upon it and by default, recovers judgment for the original sum and interest. That judgment is manifestly wrong, but it cannot be corrected in this collateral manner. It is wrong because while a portion of the debt had been extinguished, judgment is entered up for the whole sum. The case is no different, in principle,from what it would have been
Judgment reversed.