57 Vt. 218 | Vt. | 1884
The opinion of the court was delivered by
It is objected that the copies of appeal were not admissible under the plea of nul tiel record, and contended that Murdock v. Hicks, 50 Vt. 683, so holds. But the holding there was, not that copies of appeal are not evidence, but that the copies offered did not show a record of the recognizance, but only a minute of recognizance from which the justice might have made a record in due form, and that a mere minute of recognizance is not a' record of recognizance that can be declared on as such, or that can be given in evidence under the plea of nul tiel record. This was no new holding, for the same thing was held in Brackett v. McLeran, 23 Vt. 90. We think it clear that copies of appeal, when properly made and certified, are competent
But it is further objected, that though the copies of appeal were properly admitted, yet they did not show that defendants became bail as alleged; that this could not be shown by the officer’s return, but only by producing the original writ itself, with their names indorsed thereon. It was the duty of the officer to return the original writ with his doings thereon, and if he took bail, to say so, and his return was prima facie evidence against the bail of all he was bound to return; and although the return may not have been a necessary, nor even a proper, part of the record, yet, when incorporated into the copies of appeal and attested, as here, such copies were proper proof of it, on the authority of Mattocks v. Bellamy, 8 Vt. 463, where it is said to have been the uniform practice in this State to admit, and even prefer, attested copies, not only of records, technically so called, but of all papers, files, rolls, &c., legally deposited in the clerk’s office and there required to remain.
As to the objection that defendants were not shown to be the same persons whom the officer returned as having become bail, it is sufficient to say, that if this point could have been well taken when plaintiff rested, it was vitiated when defendants went on with their case and admitted, by implication at least, that they were the persons.
The objection that there was a variance between the
It has been argued that the clerk’s minute on the execution of the fact and time of its return to his office is not competent proof thereof; but no such question is raised by the exceptions, and hence is not considered.
There was no error in excluding the certified copy of record and the original writ offered by the defendants, for they showed nothing amounting to a discharge of the defendants as bail. The principal was not taken into custody, and the court took no notice whatever of the attempted surrender, not even to make a minute of it, much less to enter an exoneretur. It is plain that what we have here cannot discharge bail. In Williams v. Williams, 1 Salk. 98, plaintiff sued defendant in three actions, and defendant put in three bails, and plaintiff recovered in all. Defendant rendered himself, and one of the bail entered an exoneretur on the bailpiece, but the rest did not; and it was held that
When a surety indorses a writ of attachment as bail, the statute makes it the duty of the officer to deliver out a bail-piece. But this is a matter between the surety and the officer, and the surety must see to it that he has a bailpiece if he desires one, and its non-delivery will not discharge him. The indorsement of the process is, in effect, the recognizance of bail, and goes into court, and constitutes the ground of liability; while the bailpiece goes into the hands of the surety, and is merely evidence of the obligation he has assumed, whereby he is enabled to obtain a warrant for the arrest of his principal. Bail thus given answers the purposes of bail below and bail above at common law, though the obligation it imposes is substantially like that imposed by a recognizance of bail by bill in the King’s Bench when taken before j udgment. 1 Tidd. 250.
It has been made to appear, and is conceded, that by mistake the judgment in the original action was entered up for a sum too large in damages by $34.40; and we are asked to bring forward that case, and correct the judgment. To do this might, perhaps, embarrass the scire facias, and so we accomplish the same thing by a rule in this case.
J udgment affirmed, under a rule that the plaintiff deduct therefrom the said sum of $34.40 as of the date of the original judgment.